November 1, 2023

Employers Must Use New Form I-9, Effective Nov. 1, 2023

Holland & Knight Alert
Elvira Jeanethe Rodriguez | Nora Katz

Employers are responsible for using U.S. Citizenship and Immigration Services (USCIS) Form I-9 to verify the identity and employment authorization of individuals hired for employment in the United States. Effective Nov. 1, 2023, all employers must use the new Form I-9 to verify the identity and employment authorization of their employees. To ensure the correct Form I-9 is being used, employers should check the edition date at the lower left corner of the form. It should read "08/01/23." Prior versions will no longer be valid, and their use may be subject to penalties.

Many of the changes to the Form I-9 appear to support new rules allowing for remote examination of Form I-9 documents and USCIS' ongoing mission to streamline and improve the I-9 employment verification process. Since August 2023, employers enrolled in E-Verify may remotely examine employees' Form I-9 identity and employment authorization documents. Employers opting to examine employee documents remotely must notate the new Form I-9 accordingly, by checking the box provided in Section 2 in the "Additional Information" field of the new Form I-9. Employers must also retain copies of all I-9 documents remotely examined with the employee's Form I-9.

Penalties for incorrect or missing I-9 forms, including using outdated versions, now range from $272 to $2,701 per unauthorized employee for first-time offenses. Moreover, in the event of an audit, the government typically allows a very short response period – to prevent efforts to retroactively obtain records – leaving unprepared employers scrambling. Therefore, it is important for human resources professionals to stay abreast of the latest changes to the Form I-9 employment verification process, forms, rules and procedures to remain compliant, avoid penalties and be prepared in the event of an audit.

From Nov. 1, 2023, forward, employers should be sure to use only the new Form I-9 and review the new Form I-9 and its instructions carefully. Employers need to understand the requirements for remote verification and document retention, and they should contact qualified immigration counsel with any questions. Prevention is always the best cure, and employers that have a clear understanding of the I-9 employment verification process and procedures may be spared the expense of crippling fines down the road.

For additional information on the new Form I-9 or the I-9 employment verification process, please contact the authors.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.

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