On July 21, 2023, the Department of Homeland Security (DHS) announced it is publishing a new final rule, "Alternative Procedure: Optional Alternatives to the Physical Document Examination Associated with Employment Eligibility Verification," that modernizes the process for employers in completing Form I-9 employment eligibility and identity verification (88 Fed. Reg. 47990 (July 25, 2023)). The final rule takes effect on August 1, 2023. Under current regulations, an employer must physically examine the documents an employee presents to prove their identity and employment eligibility. The final rule amends the regulations governing the Form I-9 process to allow the DHS to specify situations when employers can use a remote process and do not need to physically examine an employee's documents proving their employment eligibility and identity.

The final rule is accompanied by a notice, "Alternative Procedure: Optional Alternative 1 to the Physical Document Examination Associated with Employment Eligibility Verification," introducing the first opportunity for employers to use the new remote verification option (88 Fed. Reg. 47749 (July 25, 2023)). The notice also takes effect on August 1, 2023. Under this option, employers enrolled in E-Verify may elect to use the new remote verification process. Importantly, the employer must:

Qualified E-Verify employers that used the COVID-19-related Form I-9 inspection flexibilities and are required to complete in-person document examination by August 30, 2023 because the flexibilities expired may use the new procedure to complete their document review obligations if the employer was enrolled and in good standing in E-Verify at the time it completed any Form I-9 using the flexibilities.

The final rule is also accompanied by a notice introducing a new Form I-9, "Introduction of a New Version of Employment Eligibility Verification Form" (88 Fed. Reg. 47891 (July 25, 2023)). The new Form I-9 is available for use beginning on August 1, 2023 and will be mandatory for all employers beginning on November 1, 2023. The new form is redesigned to again fit on one page, is accessible on a tablet or phone, and is accompanied by streamlined instructions. See the USCIS announcement on the new form for more information.

For more information on employer obligations on the Form I-9, see Practice Note, Demonstrating the Right to Work in the United States and Completing Form I-9 for Employees Checklist. For informaton on the COVID-19 Form I-9 flexibilities, see Practice Note, Expert Q&A: COVID-19 and Immigration: Employers and their Form I-9 and E-Verify obligations. For a suite of resources on immigration compliance generally, see Immigration Compliance Toolkit.