UPDATE: The Department of Homeland Security has announced that the temporary flexibilities for Form I-9, Employment Eligibility Verification, will end on July 31, 2023. Employers must complete in-person physical document inspections for employees whose documents were inspected remotely during the temporary flexibilities by August 30, 2023. This announcement provides additional time for employers to complete in-person physical inspection of identity and employment authorization documents, and annotate the Form I-9 for this population. DHS had published a Notice of Proposed Rulemaking for alternative procedures allowing remote document examination for Form I-9 last year, and anticipates publishing a Final Rule in the Federal Register that will implement this proposal. For more information, visit this link.
In April 2020, shortly after the pandemic emerged, we published a blog post about what employers needed to know about Form I-9 verifications during COVID-19. That was two years ago and, of course, things have changed since then.
Here we look at how things have changed and the steps you should take to continue effectively and efficiently onboarding employees.
What is I-9 and E-Verify?
Form I-9 was mandated in 1986 by the Immigration Reform and Control Act, signed by President Ronald Reagan. The law created civil and criminal penalties for employers knowingly hiring undocumented workers.
E-Verify is an online database that electronically confirms employees’ eligibility to work in the US by matching their I-9s to Social Security and Department of Homeland Security information.
While filing I-9s may seem very straightforward on the surface, the truth is that the process doesn’t leave much—any—room for error. For instance, I-9s need to be filed on the first day of hire—and they must be accurate. There’s no going back to make changes.
Avoiding these mistakes is generally in the hands of HR staff.
In a podcast from Jackson Lewis—We get work™—attorneys Zin H. Abidi and Benjamin C. Lau explain those verifying the I-9s tend to make the same types of mistakes that are perpetuated throughout the process: “So person A will usually have three mistakes that are repeated through all the I-9s. Person B will have three mistakes repeated through the I-9s that differ from person A’s mistakes. And why that’s important is that these fines can total hundreds of thousands of dollars. And if an internal audit is conducted and ICE sees that you made a good faith effort to fix your I-9s and address common mistakes, then those fines might be mitigated.”
Changes During the Pandemic
With so many people working remotely during the pandemic, changes were introduced to Form I-9 requirements. One fundamental change was remote verification via email, fax, or Zoom. This remote verification has been extended several times since March 2020 and currently extends through April 2022.
But there’s a big “but” here—once employers brought employees back to the physical work setting, they were required to reverify these I-9’s physically within three days of normal business operations.
Employers have discovered some significant benefits in verifying I-9s virtually. For instance, the time required to complete the process has been significantly shortened. It’s generally believed that this temporary verification may be made a permanent possibility.
The Requirements
During the pandemic, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) extended flexibility in complying with requirements related to Form I-9 through December 31, 2021. That date was recently extended until April 30, 2022.
This flexibility says Steve Anevski, CEO and co-founder of Upshift, a staffing platform, “has allowed employers to reduce the turnover time of employee onboarding procedures. The policy was introduced in March 2021 and has been extended 12 times.”
However, employers need to understand that:
- Once normal operations resume—e.g., employees are called back to the physical work setting—I-9 documents must be reviewed in person as they were before the pandemic.
- Only employers that are operating remotely can temporarily review I-9 documents remotely.
- This is a temporary fix!
Avoiding Common Pitfalls
Filling out Form I-9 is a critical part of Employment Eligibility Verification and must be done carefully and precisely to avoid problems that could result in penalties, including fines. To avoid these penalties, Ahren Tiller, founder and supervising attorney at Bankruptcy Law Center.
- Be organized. “Don’t stash I-9 records of all your employees in different files all over the place,” Tiller advises. “A best practice is to keep all I-9 records at one location and file, making it easy to retrieve the records in case of an ICE audit.”
- Designate an I-9 leader. Tiller recommends appointing someone in HR to monitor all I-9 related procedures. “Regularly train this individual on all I-9 related matters to ensure that guidelines are being followed correctly,” he says.
- Don’t ask for excessive documentation. Refrain from allowing employees to submit more documents than required, Tiller recommends.
Automation is your friend in I-9 documentation, as with other documentation that is part of the recruitment and hiring process.
Steve Anevski, the co-founder of Upshift, a staffing platform, advises HR professionals to “deploy systems that could perform an initial screening of the I-9 forms and inform candidates about any missing information.” This, he says, will save time for HR that would otherwise have been spent checking the completeness of forms and gathering missing information.
“This way, when the forms will be under review by the HR professionals, they would not have to waste time checking the forms’ completeness,” he said.
It’s also important, says Anevski, to “deploy proper systems to check for fraudulent documents such as forged Society Security numbers and cards.”
Regardless of what happens with the I-9 process, employers need to ensure that they collect the information appropriately and by established timeframes, follow all guidelines, and have a method to document the information gathered.
