You and the millions of other businesses across the United States have been through a whirlwind of change for the last few years with a multitude of Form I-9 procedural adaptations due to the pandemic, government processing delays, and labor shortages.  

Now, we are quickly approaching another potential and significant change in the I-9, in an attempt by the Department of Homeland Security (DHS) to simplify the form and its instructions.  

HERE’S THE DEAL:

Government simplification is always a welcome thing to most businesses. The two-page I-9 has been relatively the same for a decade, but it is anticipated that the revised I-9 will revert to its original one-page format with Sections 1 and 2 and the recording of reverification instances in a supplemental area, as needed. The same applies to any preparer and/or translator who will be required to complete an additional supplement section of the form. 

TAKE NOTE:

The current Form I-9 has an expiration date of 10/31/2022. The government has extended the use of expired versions of the I-9 in the past so there is no guarantee that DHS will require the immediate use of the next iteration on November 1st. Additionally, we will have to wait for DHS to determine what flexibilities are allowed for employers and the preparation of I-9s for remote employees.  

THE BACKSTORY:

Earlier this year, the government solicited public input and comments regarding remote examination of acceptable documents to establish identity and employment eligibility. With the current DHS guidance, it is likely that employers who engaged in remote hiring of individuals will be required to verify the documentation in-person and within three days of October 31, 2022. If that turns out to be the mandate, employers will need to complete that exercise by November 3rd.

As a reminder, during the pandemic, DHS allowed employers to examine Section 2 documents via video link, fax, or email, and to obtain, inspect, and retain copies within three days of remotely hiring employees. At that time, DHS stipulated that at the end of the national emergency, employers will have to revert to the requirement of physically examining documents in-person at the workplace. Whether or not the end of this month will be another watershed moment in the long lineage of Forms I-9 and accompanying procedures remains to be seen.

THE KEY TAKEAWAY:

Of utmost importance is for every employer to be absolutely certain that they adhere to the multiple, complicated requirements regarding I-9 timeliness, technical completion, and acceptance of proper documentation from employees.  

Over the last few years, we have seen a myriad of errors that constitute substantive violations by employers due to the special flexibilities and requirements related to the COVID-19 pandemic. Now more than ever, teams tasked with the responsibility of properly completing and maintaining I-9s must be laser-focused on ever-changing government policies and procedures. Proper recording of work authorization extensions and reverifications of subsequently issued DHS documents are critically important. The increase in the number of Employment Authorization Documents (EAD) presented by employees is evident, particularly for those seeking asylum in the U.S. An I-9 error for any employees requiring reverification could lead to an Immigration and Customs Enforcement (ICE) charge of continuing to employ an unauthorized individual which always carries a hefty monetary penalty per instance.  

Additionally, straying from the mandated consistent practices associated with recruitment, hiring, and the I-9 has led to a steep increase in Department of Justice (DOJ) Immigrant and Employee Rights (IER) anti-discriminatory findings against multiple employers over the last two years. Most of those violations could have been prevented with bolstered training and general I-9 “know how.”  

WHAT’S NEXT:

Our team of I-9 compliance experts can assist your business in navigating the constantly changing rules and regulations that impact your I-9 compliance program. We stay up to date on the latest nuances of preparation and remediation processes and procedures through active and on-going engagements with small, medium, and large sized companies across the entire country. Our team regularly provides very informative and interactive training to personnel charged with I-9 and E-Verify responsibilities. Form I-9 risk is a serious issue with multiple potential downsides to all U.S. businesses. We are here to help you minimize that risk across the immigration compliance spectrum.