I-9 Enforcement

Flexibility For Form I-9 Requirements Extended

With the dawn of a new year, it is apparent that not everything changes, as the United States Immigration and Customs Enforcement (ICE) in combination with the Department of Homeland Security (DHS) announced that flexibility for Form I-9 requirements will be extended even though they were originally set to expire at the end of December 2021. The remote hire flexibility announced in March of 2020 will now be extended until at least April 30, 2022. This is a temporary win for employers as much of the nation is still struggling to make compliance procedures work amidst COVID restrictions and the on-going variant mutations that shape businesses protocols for on-site and remote work arrangements continue to evolve.

Flexibility for Form I-9 Requirements Extended

Since the passage of the Immigration Reform and Control Act of 1986, federal law has required U.S. employers to verify the eligibility of newly hired employees. This process has stayed much the same over the years, but with the arrival of the coronavirus pandemic came the challenge of how employers could safely verify employees’ physical documentation.

In March of 2020, Immigration and Customs Enforcement announced some new flexibility as a result of the coronavirus pandemic in which not all employees were reporting to work in person. For the most part, the flexibility was in regard to Section 2 of the Form I-9 which dictates how employers should obtain, inspect, and retain copies of documents. The process became difficult to do in an environment where many employees were working remotely.

What Are the Form I-9 Requirement Flexibilities That Have Been Extended?

In a pre-COVID world, the federal government had an unyielding set of guidelines and regulations for the Form I-9. While the Form I-9 is still very much in play, there have been allowances made to assist with the hiring process even amidst pandemic restrictions that keep employers and employees from meeting in person.

Originally announced in March of 2020, these flexibilities announced by the Department of Homeland Security and Immigration and Customs Enforcement included:

Form I-9 practices impacted by COVID-19 will be evaluated by the DHS on a case by case basis as it relates to physical inspection of form documentation.
Employees who physically work at a company location must have their identity and employment eligibility documentation inspected by employers in person. No exceptions.
Employees hired either on or after April 1, 2021 that work only in a remote setting because of COVID-19 related precautions are exempt from physical inspection of identification and work eligibility documents only until they either return to work as stated in point two above, or this flexible option is terminated, which ever comes first.

When completing Section 2, of the Form I-9 the employer representative should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 in the Additional Information field once physical inspection takes place after normal operations resume. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection entered into the Section 2 Additional Information field on the Form I-9, or to Section 3 as appropriate.

Resuming Normal Operations In The Office – Critical I-9 Action Required for Employers & Employees

It is very important to note that once normal operations for a company resume and a return to the office mandate calling ANY employees back to the office location is in effect, ALL employees who were onboarded earlier using the flexible remote verification rules, must report in person and share their identity and employment eligibility documentation to their employer representative within three business days of the office operation resumption date. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.

This flexibility provision only relates to businesses who are operating remotely. For businesses who have employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.

While it is wonderful to have I-9 flexibility available, the employer maintains all liability for compliance regardless of the approach taken. It’s critical that the employer have very good documentation for business decisions related to remote hire (dates beginning and ending arrangement) and the related communications be documented and retained for future review in case of an audit. Employers could face violations in connection with the verification process, including any violations in connection with the form or the verification process if these rules are not understood and managed appropriately. A business is encouraged to discuss any remote hire arrangement and transition to or from such arrangement with their immigration counsel to avoid compliance shortcomings.

Consequences for Not Observing Change in Mandates Regarding Form I-9 Compliance

Employers should remember that compliance violations and/or fines are issued per situation. An employer that does not honor changes in the current law regarding the Form I-9 could feasibly have multiple employees’ records that are not considered to be compliant, and each of them could be considered a violation with individual fines attached to them. The accumulation of fines for multiple situations of compliance violations can eventually negatively impact a business’ bottom line.

Being compliant with existing law regarding authorizing work eligibility for employees is critical, but without acknowledging and abiding by even temporary changes that can occur, that compliance could be in real danger.

Stay Current on Federal Compliance Laws for the Form I-9 and E-Verify

Just as in the case of this extension of flexibility guidelines, there may be situations that call for unprecedented measures in which there could be a change in Form I-9 policy. It is imperative that employers be current on these changes in real time.

One of the best ways for an employer to feel more confident that they are getting the most updated and accurate information available is by working with a reputable organization or counsel who is dedicated to helping clients navigate Form I-9 and E-Verify changes. These professionals have an intimate understanding of mandates regarding these programs and work with clients to reach or maintain compliance as well as streamline the process of getting there.

Essentially, these companies should offer both Form I-9 and E-Verify solutions. Some of the specific services employers should look for in this type of company include:

An I-9 Compliance Checkup. If an employer is not yet sure if they are compliant, these professionals can perform a sample simulated audit. This gives employers a clearer picture of exactly where they stand by identifying existing problems before an official audit with possible violations becomes a reality.
Digital I-9 Compliance Software. This resource is designed to assist employers with tips on how to accurately complete the Form I-9 and meet document retention requirements. The software provides a logical workflow and should alert users of common or systemic errors for the Form I-9 and support the federal E-Verify program.
Ability to stay current on best practices and laws. A company providing the above services should be committed to providing up to date software solutions as well as staying on top of changes to the Form I-9 and E-Verify laws and processes so clients can be confident in their efforts to be compliant.

As employers rejoice that flexibility for Form I-9 requirements has been extended, they must manage these changes effectively and acknowledge the fact that the change is temporary and compliance laws will likely change again in the near future. Staying on top of these changes will go a long way in staying compliant.

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