A conversation on the “New Form I-9: Breaking down the updates & alternative procedures” with ADP

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Our knowledgeable HR expert Phillip Santos featured in a recent episode of the HR {preneur} podcast organized by the ADP. 


Philip Santos with years of experience in the industry at EMP Trust, brings a wealth of expertise to the table. He understands the ever-evolving landscape of compliance and regulations. 


In this insightful episode, Philip dives into important information pertaining to the New Form I-9 and shares updates about the latest procedural changes and alternatives. 


The New Form I-9 is an essential document used for verifying the identity and employment authorization of individuals hired for employment in the United States. It is crucial for companies to stay up to date with the latest changes and procedures to ensure compliance and avoid any potential legal issues. 


Here is the complete audio transcript between Phillip Santos & Jim Duffrey: 


Jim: Today we’re talking about Form I-9 and E-Verify and some new updates. We’re joined by Phillip Santos the Software Solutions Implementation lead at EMP Trust. Welcome Phillip! It’s great to have you on the show. 


Phillip: Thank you so much for having me Jim! looking forward to diving into the I-9. 


Jim: Can you please provide some background on Form I-9 


Phillip: Absolutely! The Form I-9, often referred to as simply an I-9 is used to verify a hire’s identity and work authorization. There are some guidelines and regulations over the completion of the I-9. So, employers are expected to ensure that each employee properly completes the I-9 at the time of hire. Section 1 of the form must be completed by the end of the employee’s first day of work for pay and this portion of the form requires the employee to attest that they are authorized to work in the United States. Section 2 must be completed by the employer within three business days of the employee’s date of hire. So, the Section 2 process involves the employee presenting their choice of certain documents that demonstrate their identity and work authorization and the employer is expected to examine these documents to determine whether the reasonably appear to be genuine and that they relate to the employee. The employer is then expected to record this document information into Section 2 of the I-9. 


Jim: So, Phillip, what is the most recent guidance by the USCIS on the Form I-9 process? 


Phillip: On August 1st of this year, the USCIS released an updated version of the Form I-9. So, this new version of the I-9, which is dated August 1st, 2023, is available on the government website on uscis.gov. Employers can continue to use the current version of the I-9 which is dated Oct 21st of 2019 until Oct 31st of this year. What that means is starting from November 1st of 2023 employers are expected to switch to using the new version of the Form I-9. Now, the USCIS also issued updated guidance on the Form I-9 which allows a new alternative procedure to the in-person physical document examination method that employers have followed historically as part of the I-9 process. 


Jim: Have there been any changes made to the Form I-9 itself in the new version? 


Phillip: Yes, I’m really glad that you asked that Jim. There are some notable changes in the new version of the Form I-9 which includes a check box for employers who use the USCIS’s new remote inspection process to indicate that the examined the Form I-9 documentation remotely rather than performing a physical examination. There’s also revised list of acceptable documents that includes some acceptable receipts, guidance & links to assist with information on automatic extensions of employment authorization documentation. Section 1 the Preparer and Translator certification portion is now on a separate stand-alone supplement to be used only when necessary. Section 1 & Section 2 are now on a single sided sheet. Section 3 reverification and rehires is now on a stand-alone supplement to be used only when necessary. And the revised Form I-9 instructions have been condensed from 15 pages to 8 pages. Also, employers are expected to provide the set of instructions with the Form I-9 to an employee when they are requesting an employee to complete section 1. Considering these developments employers should review their Form I-9 document inspection practices.  


Jim: So, Phillip How do employers handle Form I-9 requirements for remote employees given the shift to remote work and what are the options for Form I-9 document verification? 


Phillip: Typically for the Form I-9 employers must examine an employee’s documentation in the employee’s physical presence. However, if an employer is unable to meet with the worker to review their original Form I-9 documents, Federal Law allows employers to use an authorized representative to fulfil this function of the employer’s behalf. Beginning August 1st of this year employers may follow a new alternative procedure to the in-person physical document examination method provided that they meet certain requirements.  


Jim: So, Phillip, when you mention the requirements, can you talk a little bit about them? What are they, for an employer to use the new alternative procedure to the in-person physical document examination?  


Phillip: So, to qualify for the alternative procedure, the employers must be enrolled in E-Verify and they should be considered in good standing with E-Verify. 


Jim: Can you tell us a little bit more about what E-Verify is? 


Phillip: Yeah, absolutely. So, E-Verify is an internet-based system run by the federal government that compares information entered by an employer for an employee’s Form I-9 to records that are available to the US Department of Homeland Security [DHS] and the Social Security Administration, the SSA to confirm employment eligibility. E-Verify as an electronic system can provide results within as little as 3 to 5 seconds.  


Jim: Well, that’s pretty impressive! Phillip a moment ago you mentioned that E-Verify participants must be in good standing to participate in the new alternative procedure. Can you tell us a little bit more about what you meant when you say in good standing? 


Phillip: A participant in good standing in E-Verify is an employer that has enrolled in E-Verify with respect to all hiring sites in United States that use the alternative procedure. The employer must be in compliance with all requirements of the E-Verify program including but not limited to verifying the employment eligibility of their newly hired employees in the US. And lastly, that employer should continue to be a participant in good standing in E-Verify at any time during which that employer is using the alternative procedure. If a qualified employer chooses to offer the alternative procedure to new employees at an E-Verify hiring site that employer must do so consistently for all employees at that site. However, a qualified employer may choose to offer alternative procedure for remote hires only but continue to apply physical examination procedure to all employees who work on site or in a hybrid capacity so long as that employer does not adopt a practice that could be considered discriminatory or treating employers differently based on their citizenship, their immigration status or national origin. Qualified employers who use the alternative procedure with an employee must retain a clear and legible copy of all documents presented by the employee seeking to establish their identity and employment eligibility.  


Jim: So Phillip what does the DHS alternative procedure entail? 


Phillip: A qualified employer or an authorised representative that is acting on an employer’s behalf who chooses to use the alternative procedure must do the following items within 3 business days of employees first day of employment. First the employee must submit a copy of their chosen I-9 verification documents to their employer. Second the employer must examine the front and back if a document is two-sided copy of the identity and the employment authorization documentation to ensure that the documentation presented reasonably appears to be genuine. Third, the employer must conduct a live video interaction using video conferencing software with the individual who is expected to present the same documentation that they provide copied of, to ensure that the documentation appears to be genuine and relates to the individual. Fourth, the employer must indicate on the new I-9 by completing the corresponding checkbox that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, if that applies. Fifth the employer must retain a clear and legible copy of the documentation, again, front and back if that documentation happens to be two sided and lastly an employer is expected to submit an E-Verify case for their new hire, following the governments guidelines. 


Jim: Phillip this has been excellent. A lot of great useful information has been shared and we greatly appreciate that. Thank you, Phillip. We appreciate again your time coming on HR{prenuer} today and this brings us to the end of this episode. Thanks again to Phillip Santos for joining us. 

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