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Employers May Continue to Use Current I-9 Form and Review Employment Documents Remotely … For Now

October 17 - Posted at 10:00 AM Tagged: , , , , , ,

Due to ongoing COVID-19 concerns, employers will have the flexibility to remotely review employment documents for I-9 purposes in some circumstances until July 2023 — and they should keep using the current Form I-9 even though it was set to expire at the end of the month, according to two important announcements this week from the Department of Homeland Security (DHS). Here’s what you should know as we wait for additional DHS guidelines and prepare for anticipated changes.

Keep Using the Current Form I-9 — But Stay Tuned for Further Guidance

DHS notified employers that they should continue to use the current I-9 — which has an expiration date of October 31, 2022 — until further notice. So, stay tuned for additional information, as we will provide an update when DHS publishes its new Form I-9, associated instructions, and effective date. 

Timely compliance will be critical, since failing to use the current version of Form I-9 can result in administrative penalties. You should be prepared to take immediate action and discard the current version when the new one goes into effect.

Relaxed Document Inspection Rules Remain in Play in Limited Circumstances

Due to continued safety precautions related to COVID-19, DHS announced that it will extend its updated I-9 flexibilities until July 31, 2023. Since early on in the COVID-19 pandemic, USCIS has allowed employers to remotely review — by Zoom, video chat, FaceTime, fax, or other electronic means — the identity and work-authorization documents that are necessary to complete employees’ I-9 forms during the hiring and reverification process. These “relaxed” rules have applied in the following situations:

  • When workplaces are temporarily shut down due to the pandemic; or
  • When new hires and employees who need to update temporary work authorizations are subject to quarantine or “no travel” orders. 

Under these rules, employers must eventually inspect the relevant documents in person, but only if an employee stops working remotely and begins to report to the employer’s physical location on a regular, consistent, or predictable basis.

A Sign of Changes to Come?

This extension of the relaxed rules aligns with recent DHS efforts to kickstart the rulemaking process for a permanent protocol on remote document review. The latest extension of the relaxed document review rules is seen by some as more proof that DHS is dedicated to creating a permanent remote document examination rule. If implemented, the rule would allow employers to hire workers in far-flung locations, inspect their documents remotely, and eliminate the current requirement of in-person review by a company employee or authorized representative.

I-9 Deadline Approaching: Employers Have Until July 31 to Update Critical Immigration Forms

July 13 - Posted at 1:01 PM Tagged: , , , , , ,

If you accepted expired forms of identification from new employees who completed their I-9 forms during the pandemic, your deadline for updating them with current proofs of identification is fast approaching. The Department of Homeland Security recently announced that it was winding down its temporary policy that had allowed for expired List B (proof of identification) documents to be used when completing I-9s because of COVID-related difficulties in renewing such I.D. documents. You have until July 31 to update your I-9 forms to get into compliance with the law. What do you need to know about this fast-approaching deadline?

How We Ended Up Where We Are

In response to the COVID-19 pandemic, the Department of Homeland Security issued a number of temporary policies easing Form I-9 compliance. One of them was the COVID-19 Temporary Policy for List B Identity Documents

Under this policy, employers were allowed to accept expired List B (proof of identification) documents. Many state and local agencies were under lockdown, so it was difficult – if not impossible – for individuals to renew expired documents such as drivers’ licenses, school I.D. cards, Native American tribal documents, and others. 

What’s Changed?

The Department rescinded this temporary policy on May 1 and began again to require employers to accept only unexpired List B documents. USICS recently announced that employers who accepted expired List B documents prior to May 1, 2022, will have until July 31,2022 to update their Forms I-9. 

What Should You Do?

Specifically, for employees hired between May 1, 2020 and April 30, 2022 who presented an expired List B document, you need to have them to present to you:

  • the renewed List B document;
  • a different List B document; or
  • a document from List A. 

Important Notes

You do not need to update documents for affected employees who are no longer employed.

When updating List B documentation, you should enter the document’s: 

  • title;
  • issuing authority;
  • number;
  • and expiration date in the “Additional Information” field of Section 2.

Your representative should initial and date the change.

If the List B document was auto-extended by the issuing authority, making it unexpired when it was presented, no update is needed. For example, many states automatically extended the expiration date of certain drivers’ licenses due to COVID. Those documents would not need updating. 

Remote I-9 Verification Remains in Place – For Now

This move by DHS does not affect its decision to extend its remote I-9 verification flexibility policy, which has been extended once again to October 31, 2022.

Under that temporary policy, if employees hired on or after April 1, 2021, work exclusively in a remote setting due to COVID-19-related precautions, they are temporarily exempt from the I-9’s physical inspection requirements until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated by DHS, whichever is earlier. 

Conclusion

With these constantly evolving rules, employers who have adjusted their document inspection protocols during the pandemic may be at a higher risk for expensive monetary fines, potentially running in the thousands of dollars. Now is a good time to review your I-9 files and process to ensure continued compliance.

Flexible I-9 Rules for Remote Workers Extended Through October

May 18 - Posted at 9:10 AM Tagged: , , , ,

In a surprise move, federal immigration officials recently announced that they will permit remote review of new hires’ I-9 documentation for those who work exclusively in a remote setting due to COVID-19 related precautions through October 31, 2022. According to the April 25th announcement, U.S. Immigration and Customs Enforcement (ICE) has said that the requirement that employers inspect employees’ Form I-9 identity and employment eligibility documentation in-person applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis for at least the next six months. Could this continued flexibility be a welcome sign of things to come? 

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Form I-9 Requirements Flexibility Extended Until October 31, 2022

April 29 - Posted at 8:35 AM Tagged: , , , ,
The U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) have announced another extension to flexibility relating to in-person Form I-9 compliance. The policy, which was originally announced on March 19, 2020, was previously set to expire on April 30, 2022. Through this new extension, the policy will remain in effect until October 31, 2022.

This flexibility allows employers whose workforce is working remotely to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) and section 274A of the Immigration and Nationality Act. The policy initially applied only to employers and workplaces that were working entirely remotely. However, the policy was expanded to cover all employers who hire employees on or after April 1, 2021 to exclusively work remotely due to the employer’s COVID-19 policy. In these cases, the in-person inspection requirement relating to Form I-9 identity and employment eligibility documentation applies only to employees who physically report to work at a company location on any “regular, consistent, or predictable basis.”

The temporary guidance continues to provide the following:

Employers that have gathering bans or restrictions due to COVID-19 are not required to perform an in-person review of the employee’s identity and employment authorization documents. Instead, employers may inspect the employee’s “Section 2” I-9 documents remotely, using “video link, fax or email, etc.” Employers must obtain, inspect and retain copies of the documents within 3 business days, and provide written documentation of their remote onboarding and remote work policy on the employee’s Form I-9. Once normal operations resume, employers must conduct an in-person verification of any documents presented by employees who were onboarded remotely, within 3 days of a return to the work location.

Although DHS has signaled a willingness to permanently adopt remote document examination for I-9 eligibility verification, to date, no permanent changes have been made. Accordingly, employers are encouraged to begin, at their discretion, the in-person verification of identity and employment eligibility documentation for employees who were hired on or after March 20, 2020, and who presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020.

Workplace Immigration Officials Extend “Relaxed” Remote Work I-9 Rules Into 2022

January 04 - Posted at 2:52 PM Tagged: , , , ,

Federal workplace immigration officials recently announced that “relaxed” I-9 rules have been extended until April 30, 2022, ensuring that employers can inspect I-9 documents for certain employees working remotely due to COVID-19 restrictions by way of camera or fax. U.S. Immigration and Customs Enforcement (ICE) noted that this extension will ensure that the guidance for employees hired on or after April 1, 2021, and working exclusively in a remote setting due to COVID-19-related precautions will remain in place for the next several months. What do employers need to know about this December 15 announcement?

Overview

Employees who qualify for these relaxed rules are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.  When an affected employee commences “non-remote employment on a regular, consistent, or predictable basis” the employer must verify the employee’s documentation in person within three business days.

What if the Remote Employee Leaves Employment Before We Have a Chance to Inspect Their I-9 Documents in Person?

In its announcement, ICE also provided the following guidance: “Employers may be unable to timely inspect and verify, in-person, the Form I-9 supporting documents of employee(s) hired since March 20, 2020, . . .in case-by-case situations (such as cases in which affected employees are no longer employed by the employer). In such cases, employers may memorialize the reason(s) for this inability in a memorandum retained with each affected employee’s Form I-9. Any such reason(s) will be evaluated, on a case-by-case basis, by DHS ICE in the event of a Form I-9 audit.”

When a government agency announces a “case by case” policy, this is of little comfort to employers. We suggest that employers err on the side of caution and have remote new hires’ Form I-9 documentation physically inspected by an authorized representative retained by the employer for that purpose, unless COVID-19 restrictions render that option unadvisable. 

You should carefully coach authorized representatives on how to correctly fill out page 2 of the I-9, as any errors or omissions will be attributed to the employer. In the alternative, you should monitor remote employees’ visits to the workplace and conduct the in-person follow-up document review as early as possible.

What’s Next?

Given that fines for I-9 errors can run in the thousands of dollars per I-9, the cost of a self-audit is relatively inexpensive, and helps ensure compliance moving forward.   

Florida’s New Mandatory E-Verify Law Will Require Changes To Hiring Practices In the New Year

December 21 - Posted at 10:00 AM Tagged: , , , , ,

Beginning on January 1, 2021, Florida’s new “Verification of Employment Eligibility” statute will require many employers to use the federal E-Verify system before hiring any new employees. This new law could force significant changes to your hiring practices. What do Florida employers need to know about this significant development?

Legislative Background And Campaign Promises

E-Verify was introduced by the U.S. Department of Homeland Security in partnership with the Social Security Administration as a voluntary program. However, many employers in Florida will soon be faced with mandatory implementation of the web-based system to confirm employment eligibility for new hires.

Under preexisting federal law, all employers are required to complete an I-9 Employment Eligibility Verification form for each new employee to verify the identity and eligibility of that employee to work in the United States. Since its inception in 1996, most states have also encouraged voluntary participation in the federal government’s E-Verify program, which compares information supplied by an employer from its Form I-9 to information available to the federal government from various databases. Only nine states require E-Verify for all employers.

Since 2011, E-Verify has been required on all state projects in Florida. However, following a nationwide trend of growing support for the federal employment verification system, Governor Ron DeSantis signed Florida Senate Bill 664 on June 30, requiring all public employers – as well certain private employers – to use E-Verify beginning January 1, 2021.

As a gubernatorial candidate in 2018, DeSantis vowed to mandate the use of E-Verify among all employers in the state. This was controversial and opposed not only by some immigrant advocacy groups, but also by business groups — especially those in agriculture, construction, and hospitality. Following Governor DeSantis’ signing of the bill, a spokesperson explained, “Given the high unemployment rate due to COVID-19, it is more important than ever to ensure that the state’s legal residents benefit from jobs that become available as Florida continue to reopen in a safe and smart manner.” While the measure expands the use of E-Verify, Florida does not join the states that require use of the system in hiring practices for all employers. 

What Does the New Law Require?

There are varying obligations for employers depending on whether they are public or private, and whether they contract with the state or receive certain state incentives.

Public Employers And Private Employers Who Contract With The State Or Receive State Incentives

Once in effect, every Florida public employer, along with their private contractors and subcontractors, must enroll in and use the E-Verify system to confirm the eligibility of all employees hired after January 1, 2021. No public contract can be entered into without an E-Verify certificate.

Any contractor who hires a sub must require an affidavit stating that they don’t employ, contract with, or subcontract with any unauthorized immigrants. Importantly, this affidavit provides for all newly hired employees, not just those working on government contracts. This affidavit must be kept by the general contractor for the duration of the contract and all contractors will need to go through this process for each public project.

If a public employer has a good faith belief that these requirements have been knowingly violated, it can terminate the contract, without liability for breach of contract, or demand that its contractor terminate any noncompliant subcontractors. Terminations for purported violations of these requirements may be challenged in court within 20 days of the date of termination. However, if the contractor is in fact found guilty, the contractor will be barred from public contracting for at least a year after termination and may be held liable for any additional costs associated with the termination.

In addition to private employers who contract with public entities, these new E-Verify employment eligibility requirements will also apply to employers who receive taxpayer-funded incentives through the state Department of Economic Opportunity. Beginning on January 1, 2021, the DEO will not approve an economic development incentive application unless the application includes proof that the applicant business is registered with and uses the E-Verify system in the eligibility verification process for all newly hired employees. Should the DEO make a final determination that an awardee has failed to be compliant, the employer will be forced to repay all moneys received by the DEO as an economic incentive.

E-Verify For All Other Private Employers

For private employers who do not contract with the state or receive state incentives, Florida law will now require these private employers to use E-Verify, or alternatively use the Form I-9 and maintain copies of the documents used to complete the Form for three years (which is optional under federal law). If the E-Verify certificate or Form I-9 documentation is requested by certain parties (such as the State Attorney, Attorney General, Department of Law Enforcement, etc.), the employer must provide them with proof of the employee’s eligibility.

Private employers accused of non-compliance will be provided notice from the DEO and the employer must terminate any unauthorized employees, begin complying with the legal procedures, and respond with an affidavit of compliance within 30 days. Failure to do so risks potential suspension of existing licenses until the employer provides such an affidavit. If an employer fails to properly respond to a DEO notice three times in any 36-month period, it could permanently lose its business licenses and may be liable for additional civil or criminal liabilities.

The E-Verify requirements will also go into effect for the private sector on January 1, 2021. This new law will not apply to any employees that were hired before then. However, any existing employment contracts that need to be renewed or extended after that date will be required to go through the verification process without going through the E-Verify process.

Ensuring Compliance Readiness Is The Next Step for Employers

Public employers in Florida and those who bid on contracts with the state should be ready to comply with the new law by updating their onboarding and new hire practices. Private employers who choose not to use E-Verify should continue to complete and maintain Form I-9 verification records, including copies of the documents that were reviewed. The enforcement procedures under the new E-Verify mandate are significant, and failure to comply can seriously impact your ability to do business within the state.

Notably, government scrutiny of employment verification records at both the state and federal level has the potential to increase when the COVID-19 pandemic subsides. You can prepare for government reviews by periodically auditing your employment verification records to ensure you have been completed fully and properly.

FAQs For Employers Navigating Relaxed I-9 Verification Requirements

April 28 - Posted at 10:00 AM Tagged: , , , , ,

Although the Department of Homeland Security (DHS) recently relaxed I-9 requirements for employers operating remotely as a result of the COVID-19 crisis, employers are still left with some questions on how to meet their obligations in this uncertain time. 

The Basics: What Are The New Rules?

Under federal guidance, employers are temporarily no longer be required to review an employee’s identity and work authorization documents in the employee’s physical presence.  Instead, inspection of these documents can be conducted remotely (e.g., by video, fax, or email).  

According to the U.S. Citizenship and Immigration Services (USCIS), “if employers are performing inspections remotely (e.g., over video link, fax or email, etc.) they must obtain, inspect, and retain copies of the Section 2 documents within three business day of hire. In addition to completing Section 2, Employers also should enter ‘COVID-19’ in the Additional Information field.”

Then, when “normal operations resume,” all employees whose documents were presented via remote verification must, within three business days, undergo the required “in-person” examination of documents. The person conducting the physical examination should write the words “documents physically examined” in the Additional Information box in Section 2, and should include their name and the date of inspection.  

It is important to keep in mind that the DHS’s relaxed requirements apply only to employers who are operating remotely. According to the guidance, if there are employees physically present at a work location, then you must follow the normal in-person physical inspection rules. However, if newly hired employees or existing employees of an employer who still has employees present at a work location are subject to COVID-19 quarantine or lockdown protocols, “DHS will evaluate this on a case-by-case basis.”

Frequently Asked Questions About The New I-9 Guidance

While employers appreciate the DHS’s temporary relaxation of the in-person document inspection rules, some questions are not addressed by either DHS or USCIS. Here are the most common questions we have seen and the best practices to follow.

  1. How is an employee expected to fill out Section 1?
    The announcement makes clear that employees are still required to fill out their section (Section 1) of the I-9 no later than the first day of employment. But DHS’s announcement is silent on how employees will complete Section 1 of the I-9 if they are operating remotely.

    You can presumably email the Form I-9 to the employee, have the employee complete Section 1, sign, date, scan and email the completed Section 1 back to you. For employees without a home printer and/or scanner, you should consider having them provide Section 1 in the same way they provided their documents (by video, smart phone photo, fax or other electronic method).

    Once operations resume, the employee should bring the original signed Section 1 to your worksite.

  2. If we have a policy of not keeping copies of documents presented as part of the I-9 process, what should we do with our copies of the remotely provided documents after the in-person inspection occurs?
    As noted, the announcement clearly requires employers conducting remote document reviews to keep copies of the documents provided to them (for example, by taking screen shots, pictures of the documents by camera phone, and other methods). But the announcement is silent as to what you should do with those electronic copies of documents after the in-person document review, in the event you do not, as a policy, keep copies of documents submitted as part of the I-9 process.

    The safest course of action is to print out the electronic copies of documents received remotely. But instead of keeping them with the employee’s I-9, keep them in a separate file until DHS clarifies what should be done with them.

  3. Is the employee required to bring in hard copies of the same documents they provided remotely?
    The government has made it clear that you are not supposed to request or even suggest that employees provide any specific document or documents when filling out a Form I-9. Here, the announcement seems to assume employees will bring in for inspection the same document or documents they provided remotely, but does not specifically say so. 

    Because the employee has already made their choice of documents when they provided them remotely, DHS may find it reasonable for you to ask to see hard copies of the same document(s). If the employee refuses or has lost one or more of those document(s), you may consider filling out a new Section 2 and attaching it to the original Section 2, with a brief explanation in the Additional Information field.

  4. What triggers the determination that “normal operations” have resumed?
    The announcement states that within three business days after you resume “normal operations,” the in-person document review must occur. But what if you implement a partial resumption of operations, scaled back operations, or even just start a test run of operations?  What if you call some of your employees in to your worksite in preparation for returning to normal operations? 

    The recommended approach is to determine if the employee is going to be required to physically come into the office as part of the resumption of operations, whether to attend orientation, pre-employment training, or other reason. If the employee is scheduled to come in to the workplace for only a day or two, or even for only a few hours, you should instruct them to bring their original I-9 document(s) with them, and you should conduct the in-person inspection at that time. 

    In short, rather than bank on an argument that Section 2 was not filled out late because “normal operations” had not yet commenced, you should err on the side of doing the document inspection as early in the process as possible (on a case-by case basis), rather than later.

New I-9 for 2020

February 03 - Posted at 2:23 PM Tagged: ,

On Jan. 31, 2020, USCIS published the Form I-9 Federal Register notice announcing a new version of Form I-9, Employment Eligibility Verification, that the Office of Management and Budget approved on Oct. 21, 2019. This new version contains minor changes to the form and its instructions. Employers should begin using this updated form as of Jan. 31, 2020.

The notice provides employers additional time to make necessary updates and adjust their business processes. Employers may continue using the prior version of the form (Rev. 07/17/2017 N) until April 30, 2020. After that date, they can only use the new form with the 10/21/2019 version date. The version date is located in the lower left corner of the form.

USCIS made the following changes to the form and its instructions:

Form:

Revised the Country of Issuance field in Section 1 and the Issuing Authority field (when selecting a foreign passport) in Section 2 to add Eswatini and Macedonia, North per those countries’ recent name changes. (Note: This change is only visible when completing the fillable Form I-9 on a computer.)

Instructions:

  • Clarified who can act as an authorized representative on behalf of an employer
  • Updated USCIS website addresses
  • Provided clarifications on acceptable documents for Form I-9
  • Updated the process for requesting paper Forms I-9
  • Updated the DHS Privacy Notice

A revised Spanish version of Form I-9 with a version date of 10/21/2019 is available for use in Puerto Rico only.

 

Form I-9 Expires August 31st

August 27 - Posted at 9:57 PM Tagged: ,

The federal government’s Form I-9, used by HR departments across the country to verify workers’ employment eligibility, is expiring at the end of this month.

The Department of Homeland Security (DHS) is expected to extend the current version of the form (marked 8/31/2019) without changes, although minor clarifications will be made to the form’s instructions. The agency has directed employers to continue using the current version of the form despite the expiration date until a revised version is available.

Here are three of the proposed revisions:

  • Employers may designate anyone to be an authorized representative to complete Section 2 of the form. The employer is still liable for any violations committed by the designated person. Employers face difficulties in completing I-9s for remotely hired workers and need more-specific instructions to clarify who may serve as an authorized representative to complete the form.
  • Writing “N/A,” or not applicable, in the identity-document columns is no longer necessary. When entering document information in the List A column (or, alternatively, in the List B and List C columns), you will not need to enter “N/A” in the columns that are not used. “The requirement to enter ‘N/A’ in certain portions of the form could be burdensome and unclear,” Fay said. “Now, for example, if you have an employee present a U.S. passport, which is recorded in the List A column, you do not need to write ‘N/A’ in all of the fields in the List B and List C columns.”
  • The form’s List C documents that establish employment authorization do not include a worker’s Employment Authorization Document (EAD). The List C documents include a Social Security card and birth certificate, while the EAD (Form I-766) providing temporary employment authorization to work in the United States is a List A document.

ICE Turns Up The Heat On Employers This Summer

July 23 - Posted at 11:01 PM Tagged: , , , ,

In the past week, Immigration and Customs Enforcement (ICE) has significantly increased the number of Notices of Inspection issued to employers nationwide, leading to a dramatic spike in I-9 audits. Unlike the enforcement initiative rolled out by federal authorities in February of this year, the latest sweep is no longer concentrated in Southern California but appears to be nationwide in scope.

There appears to be somewhat of a pattern with regard to which employers are targeted by this effort. ICE seems to be focusing on businesses operating in states, counties, and cities that have designated “sanctuary” status, and has also ramped up efforts to follow up with employers who have been subject to an I-9 audit in the past. 

Regardless of whether you fall into either of these two categories, you are at increased risk of a visit from federal immigration authorities. What should you do today to prepare for a possible knock on the door from federal officials tomorrow? 

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