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Labor and Employment Update: United States Citizenship and Immigration Services
Issues Revised Employment Eligibility Verification Form I-9, Ends COVID-19 Flexibilities

Since 1986, the Immigration Reform and Control Act (“IRCA”) requires all employers to complete an Employment Eligibility Verification Form I-9 for all new hires to physically verify an employee’s identity and authorization to accept employment, within the first three (3) days of employment, and to retain the form for three (3) years after the date of employment, or one (1) year after the date of termination of employment, whichever occurs later.

On August 1, 2023, the United States Citizenship and Immigration Services (“USCIS”) published a revised version of Form I-9. After October 31, 2023, all employers must use the latest version of Form I-9 to verify the identity and employment eligibility of all new hires, and/or for the reverification of expiring employment authorization of current employees (if applicable). After October 31, 2023, previous versions of Form I-9 will not be accepted, and failure to use the revised Form I-9 may result in penalties. A revised Spanish Form I-9 dated August 1, 2023 is available for use in Puerto Rico only. All employers should make sure to use the latest version of Form I-9, available at https://www.uscis.gov/i-9.

In addition, beginning on August 1, 2023, employers may remotely examine employees’ Form I-9 documents, provided they are enrolled in the E-Verify program.

Changes to the latest version of Form I-9 include:

• Reduced Sections 1 and 2 to a single sheet.

• Moved the Section 1 Preparer/Translator Certification area to a separate Supplement A that employers can use when necessary. This supplement provides three areas for current and future preparers and translators to complete as needed. Employers may attach additional supplements as needed.

• Moved Section 3 Reverification and Rehire to a standalone Supplement B that employers can use as needed for rehire or reverification. This supplement provides four areas for current and subsequent reverifications. Employers may attach additional supplements as needed.

• Removed use of “alien authorized to work” in Section 1 and replaced it with “noncitizen authorized to work” and clarified the difference between “noncitizen national” and “noncitizen authorized to work.”

• Ensured the form can be filled out on tablets and mobile devices by downloading onto the device and opening in the free Adobe Acrobat Reader app.

• Removed certain features to ensure the form can be downloaded easily. This also removes the requirement to enter N/A in certain fields.

• Improved guidance to the Lists of Acceptable Documents to include some acceptable receipts, guidance, and links to information on automatic extensions of employment authorization documentation.

• Added a checkbox for E-Verify employers to indicate when they have remotely examined Form I-9 documents.

On a separate note, the United States Immigration and Customs Enforcement (“ICE”) announced that, effective July 31, 2023, COVID-19 related flexibilities for the remote inspection of employee documents would end. These flexibilities were originally announced in March 2020 and updated in March 2021. Employers must now complete in person physical document inspections for employees whose documents were inspected remotely during the temporary flexibility period by August 30, 2023. This announcement gives employers additional time to complete in-person physical inspection of identity and employment authorization documents and annotate the Form I-9 for this population. As discussed above, employers enrolled in the E-Verify program may prospectively use remote examination for I-9 documents as of August 1, 2023.

Please contact Mariel Y. Haack, Esq., at (787) 281-1951, mhaack@amgprlaw.com, or Edwin J. Seda- Fernández, Esq., (787) 281-1822, seda@amgprlaw.com, if you have any further questions regarding the revised Form I-9 or the required in-person document inspections for employees whose documents were inspected remotely during the COVID-19 pandemic.