After a new law was passed in May of 2023 by the governor of Florida, it has many wondering about Florida immigration law and private employers. One of the biggest questions employers have is if the new statute will affect all private employers or just some? Generally speaking, it appears not to be a blanket mandate, but will still affect a number of businesses in a variety of different ways. Amidst the change, the best way for employers to maintain compliance with federal and state hiring laws is to enlist the help of an I-9 intelligence company.
Recognized as Immigration Bill SB 1718, the legislation was first introduced in the Florida Senate and was passed before it made its way through the state’s House of Representatives, and eventually to the desk of the state’s governor, where it was signed into law on May 10, 2023. The bill’s passing includes certain provisions that are expected to impact Florida immigration law and private employers.
The Impact on Florida Immigration Law and Private Employers
For most employers the primary concern of the new Florida immigration law is whether it will affect all private employers.
While E-Verify is largely a voluntary federal program designed to aid employers in verifying with federal databases that an employee’s documentation is valid, many states are now passing laws that mandate to at least some degree that the employer use E-Verify. Florida became one of these states originally in January of 2021 when a law went into effect requiring the entities of local school districts, colleges and public universities, state and local agencies, and public employers to use E-Verify.
At the time, if private employers chose not to use E-Verify, they could simply maintain regular Form I-9 protocols and provide an employee’s I-9 documents to government agencies that requested them. This came with the knowledge that the requesting agencies might then also ask the federal government to confirm the employee’s work eligibility status.
With the passage of the newest immigration law (SB1718) on May 10, 2023, the process now looks a little different. According to the mandate’s verbiage, beginning July 1, 2023, the state’s private employers who have twenty-five employees or more will be required to utilize the E-Verify system to confirm an individual’s eligibility to work within the normal deadline parameters of the Form I-9. And that’s not all.
While it is not an exhaustive list of the provisions included in the new law, the items that are most likely to affect Form I-9 protocol are:
- The state will decline to recognize driver’s licenses issued in other states to undocumented individuals who could not prove their lawful presence in the U.S. when it was issued.
- If an employer is found to have knowingly employed a person not authorized to work, the Florida Department of Economic Opportunity (DEO) can put penalties into motion that require the revocation of applicable licenses and repayment of economic development incentives.
- Undocumented immigrants are no longer allowed to practice law in Florida.
- Any person who is found to have willfully or knowingly brought an undocumented person into Florida who either knew or reasonably should have known their immigration status may be recognized as a human smuggler. The dishonorable title can now come with severe criminal penalties.
Revalidation of Employee Documents
If an employer utilized remote inspection any time after March 20, 2020, they are encouraged to immediately and carefully review all Form I-9s for current employees who were hired on or after March 20, 2020, to determine if any forms were completed using remote inspection of identity and work authorization document(s) and, if any are located, the employer should contact the affected employees to schedule an in-person physical inspection of their documents. There are published FAQs on the government’s I-9 central website for further guidance.
Affected employees have a couple of options when showing documents for physical inspection:
Employee’s Document Options
for Physical Inspection
The employees may choose to provide the same document(s) provided for their original I-9 process
Expired documents are permissible for in-person verification, as long as the employee’s document was unexpired at the time of remote inspection.
Expired US passports are always acceptable to establish both identity and eligibility to work.
to Update Form I-9
Employers may update Section 2 of the affected employee’s Form I-9 in the “Additional Notes” box with a notation indicating:
- “Documents physically examined”
- The date of the physical inspection
- The name of the person who conducted the physical inspection
If the person who performed the remote inspection also performs the in-person inspection, they should enter their initials in the “Additional Information” field.
However, if a different person performs the in-person inspection, that person should write their full name and title, instead of their initials.
The employee may choose to provide any other valid identity and work eligibility document(s) listed on the Form I-9 List of Acceptable Documents.
Complete Section 2 on a new Form I-9 and attach it to the original Form I-9 used for remote inspection. The new Section 2 document information may be listed in the appropriate List A or List B and List C columns [including the document title, document number, issuing authority and expiration date (if any)
Add similar notation in the “Additional Notes” box as mentioned above.
DHS suggests that the first option is a better “best practice.”
UPDATED STATUS WITH DIFFERENT DOCUMENTS
If an employee has changed immigration status (or their prior work authorization document expired) since they were hired, employers have two options.
Employers should complete Section 2 on a new I-9 Form and attach it to the I-9 used for remote inspection. This is the option recommended by DHS.
Or, utilizing the existing I-9 form, in the “Additional Information” field, provide the employer and list the document title, document number, issuing authority, and expiration date (if any) of the new document and notate that the employee presented this document at physical inspection.
An employee has separated from employment since their remote inspection of documents
The employer should include an explanation in the “Additional Information” field and note the date of the employee’s separation. These I-9s should be retained according to the standard retention requirements outlined in the Handbook for Employers M-274 on the USCIS website.
Employers may refer to ICE’s sample mockups of how the physical inspection should be annotated.
The physical inspection may be completed by the employer’s staff or by another individual appointed and approved by the employer to complete the in-person physical examination of the document(s), even if they are unpaid and otherwise completely unaffiliated with the employer.
Utilizing any external “authorized representative” for the physical inspection carries liabilities therefore employers must understand that they remain fully responsible for any errors or omissions committed by any outside individual they authorize to complete the in-person physical examination. Employers should carefully consider the qualifications and reliability of any individual they authorize to conduct physical document inspections on their behalf. It is recommended that a thorough review or audit be completed by a trained representative of the company at the completion of the physical inspection.
All employers who utilized the I-9 remote flexibilities must maintain written documentation of their on-boarding practices and remote work policy that was in place for each employee per the DHS original announcement.
Finally, employers should neither create a new E-Verify case for re-inspected employees nor should they update the E-Verify case in connection with the physical inspection.
While we all anticipate the conclusion of U.S. Department of Homeland Security’s considerations and conclusions on the proposed rule that would allow alternative procedures for the examination of identity and employment eligibility documents, including a remote inspection option for some types of employers, however, the rule remains under review and may not be finalized for some time. Therefore, all employers should continue to coordinate the physical inspection of identity and employment eligibility documents for the foreseeable future.
Utilizing an electronic I-9 system that has capability to securely handle remote inspection can be extremely helpful in managing this requirement – Lookout Services, Inc can assist with this process. Please reach out to firstname.lastname@example.org for more information.
The consequences can be severe for employers knowingly recruiting, employing, or referring an individual that is unauthorized to work, and the Florida Department of Economic Opportunity (DEO) may invoke the following civil penalties:
- Place an employer on one year of probation, during which that entity must provide quarterly reports to the DEO to prove compliance with the law.
- Demand repayment of economic development incentives
If a violation occurs within 24 months of a previous violation, another violation of the law takes place and the DEO may even be able to revoke or suspend licenses issued by a licensing agency subject to Chapter 120 of Florida Statutes. This is a risk that private employers cannot afford to take.
Starting on July 1, 2024, the new Florida law states that if the DEO finds that an employer did not use E-Verify for three or more times during any 24-month period for new employees, stiff fines for the employer of $1,000 a day could be issued along with the suspension of licenses until the point that the employer can prove compliance.
Help for Private Employers in Florida
With the temporary changes in some Form I-9 protocol since the pandemic and now individual state laws changing, employers are faced with more responsibility than ever when it comes to ensuring their employees are authorized to work.
These additional duties frequently fall on already understaffed management or human resource departments. Amidst staffing issues, many private employers are also facing high turnover rates that make training over Form I-9 protocol a problem.
With so many balls in the air, one of the primary resources modern businesses are turning to is an I-9 intelligence company who works with employers to stay current on immigration law that pertains to hiring protocol. In many cases, a digital Form I-9 software program may be used to help navigate these changes and more effectively streamline the process.
Comprehensively, these changes help relieve potentially burdened staff with a checks and balances system that helps catch common Form I-9 mistakes, alerts employers about expiring documentation, and offers some assistance for audits. As an added bonus, most digital I-9 software programs are designed to auto populate E-Verify fields, which can minimize the incidence of errors.
Florida immigrational law and private employers can have a cause-and-effect relationship. If employers fail to abide by the provisions put forth in the new mandate, it will likely have unwelcome consequences. Private employers are encouraged to be proactive in protecting their compliance by enlisting the help of an I-9 intelligence company.