New I-9 Form (2023): How to Avoid Errors, Best Practices and Proper E-Filing Tips

On August 1, 2023, U.S. Citizenship and Immigration Services (USCIS) made more alterations to Form I-9 than we have seen in years. A hefty portion of these changes reflect a major shift towards remote hiring and the increased use of E-Verify, largely due to post-pandemic hiring practices.

Julie Pace, Partner and founder of PSGM Law, joined hr|simple from Phoenix, Arizona, to host a webinar–offering comprehensive insight into the updated I-9 form’s new features and requirements. Handling more than 1,000 I-9 and E-Verify investigations throughout her career, Pace provides tips for staying on top of the major changes. Fellow presenter Heidi Nun Gilman also provides expertise on the topic. 

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Links:

Updated 2023 I-9 FORM

Updated 2023 I-9 FORM INSTRUCTIONS

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Most Common I-9 Form Errors

Pace describes the most common I-9 related errors she’s come across:

1. Failure to create and maintain an I-9 form
   This mistake may sound silly, but that’s all the more reason to state the obvious. When hiring an employee, make sure you have access to a valid I-9 form, and always keep an organized record of fulfilled forms – at least for the full length of the employee’s time at your company.
    
2. Failure to complete Section 2 within three business days
   It’s a top priority to complete your part of Form I-9 before it is too late. This common error is one of the few that cannot be retroactively fixed. Mark your calendars, and stay on top of that paperwork!
    
3. Failure to require the employee to complete Section 1 on their first day of employment
   Any new hire, remote or in-person, must fill out an I-9 on their first official day of work. This is another mistake that cannot be corrected after the fact. Employers and hiring managers/HR can, in fact, ask the employee to fill out an I-9 before their first day, but only if there is a bona fide acceptance of employment on the employee’s end.
    
4. Failure to reverify expired work authorization for “alien authorized to work until”
   Pace recommends setting up a “tickler system” to send reminders about the  employee’s work authorization 30, 60  and 90 days before the expiration date. Employees that require a visa or a work authorization card cannot work a day past the expiration of their work authorization. 
    
5. The employee neglecting to sign Section 1
   It’s simple, just make sure it’s done.
    
6. Insufficient documentation in Section 2
   Double-check that the employee has either included one acceptable document from List A, or one from both List B and List C.
   *Side note: When collecting a driver’s license as a form of identification, make sure to include the state name in the labeling of the document, i.e. “CADL” for “California Driver’s License.”
    
7. Date of hire missing from document information
   If you’ve already made this mistake, don’t sweat it. It is possible to add this key piece of information later on, as long as you get to it before ICE performs an audit. Just be sure to initial and sign the change with the current date, signifying that the document has been altered.
    
8. Failure of an employer or representative to sign the form
   Easily said, but don’t let this small misstep be the reason you’re fined during an audit.
    

Changes for 2023 – Navigating key Updates

At a glance, the brand new Form I-9 addresses several of the common issues and mishaps covered above, offering employers and HR professionals some ease, and even a tad bit of grace. But … don’t get too comfortable – many of the recent updates are actually quite tricky. Pace and Gilman offer the following tips for navigating version 2023’s changes:

1. From this point forward, double-check that all of your blank forms (for new hires) include a “Revised 08/01/2023” note at the bottom left.
   Starting November 1, 2023, older versions of the I-9 forms will not be accepted–using outdated forms will also be subject to possible fines. It may be wise to dispose of all older Form I-9s (the blank ones of course), to eliminate any confusion and error.

2. Replace the older I-9 “instruction sheets” on your poster wall with the new, slimmed down instruction sheets. 
   USCIS pared it down from 15 to 8 pages this time. Lucky you!

3. Learn about the “supplements” in the new I-9.
   The August 2023 Form I-9 has removed a few sections from the prior form. USCIS included an optional Section 3 “supplements,” to address reverification, rehiring, and preparing/translating. The employee and employer only need to fill out these supplements under fitting circumstances.

4. Make sure all U.S. employees, no matter what their native language is, fill out and submit the English version of the I-9.
   Pace notes that the employee can use an alternate version of the I-9 in their familiar language–for reference only.

5. Remember the 3-year rule.
   When rehiring or reverifying an employee’s work authorization, refer back to the original Form I-9, check the version (i.e. 2019, versus 2023), and track the number of years since its fulfillment. If an employee is rehired three years after the first date that they were hired, or they had filled out an older version of the form, it’s time to fill out an entirely new I-9. 
   
   In most other cases, the employee can simply complete Supplement B (in the 2023 version of the form). If the employee’s work authorization has expired since their original hire date, they may reverify their visa or “alien authorized to work until” card in Supplement B as well.

6. Beware of the fillable PDFs.
   Altered from the last Form I-9, the current interactive PDF version no longer alerts the employee/employer of missing information. It also has removed the interactive tips that were included in the 2017 version of Form I-9. While this may warrant a lot of extra work, you should make sure to  triple check each employee’s form to make sure it is properly filled in.

7. Research the new alternative procedures for remote I-9 completion.
   As of July 25, 2023, eligible employers can review documents remotely through E-Verify, without a “physical document inspection.” The Department of Heartland Security (DHS) is creating pilot programs for employers to legally review photocopies and videos of I-9 documents. In the full webinar (see link to the video recording below), Pace and Gilman delve into the requirements and benefits of these pilot programs.

8. Plan ahead and set up a 90-day reminder for August 2026, when the next version of Form I-9 is set to come out.
   And then we’ll come right back to the drawing board!

Using E-Verify/How to File I-9 Electronically The Right Way

So, how have these 2023 changes affected remote hiring and electronic I-9 platforms?

While the technology has improved, and the revised Form I-9 makes a handful of  considerations for remote hiring and E-Verify platforms, a great amount of responsibility still falls on employers and HR professionals to practice due diligence. Pace warns professionals to carefully research I-9 verification audit trails, review employees’ attached documents as soon as possible, and take as many general precautions as feasible.

A bulletproof audit trail should include and specify:

1. The name of employee/record for which the data was created or changed

2. The type of action (i.e., new documents, addition, update, etc.)

3. A date and time stamp …  down to the second

4. The name and IP address of the document creator or the user who made the change within E-Verify

5. Each button click

6. The field that was altered

7. A careful record of both the old and new data

It’s impossible to cover every aspect of 2023 changes to the I-9 form in one blog, but we hope this is helpful in raising the most critical and relevant issues and answering many of your questions.
 

Ready to Learn More?

Check out hr|simple’s full webinar with Julie Pace or the webinar highlight video on Youtube.

hr|simple regularly hosts employment law related webinars each month. Catch a live webinar by becoming an hr|webinars MAX subscriber here (and save 20% with coupon code MAX20)! 
 

Julie Pace has significant experience counseling and representing businesses in a broad range of employment, litigation, construction, corporate, and government investigations, regulatory, and administrative matters. She has handled more than 1,000 I-9 and E-Verify compliance investigations and authors hr|simple’s Arizona Human Resources Manual and newly updated Employment Verification: Immigration, Form I-9, and E-Verify.

Click here to learn more about Julie Pace and PSGM Law.