I-9 Update: From Completion to Compliance with an Emphasis on Remote Workers
The USCIS Form I-9 is an essential compliance document for U.S. employers. Updates took place on August 1, 2023, including rescinding some processes granted during the pandemic. Learn what you, as an employer, need to know.
In a recent presentation to TechServe members, Lisa Galvan and Jennifer Yeaw, both of Corporate Immigration Partners, P.C. discussed the changes – particularly those that pertain to remote employees – and the critical details employers must consider regarding this aspect of compliance.
The new Form I-9
The purpose of the form, and the information collected, hasn’t changed.
“The purpose of completing the I-9 is to verify employee information, and to make sure that someone is vetting the documentation that’s provided by the employees,” Yeaw says. “The Form I-9 is also about compliance against discrimination. The anti-discrimination provisions of the Immigration and Nationality Act make it unlawful to discriminate for citizenship reasons, immigration status, or national origin.”
Although the purpose of the document, and the information collected, hasn’t changed, there have been some changes in the layout of the document. The old Form I-9 can still be used until October 31, 2023. You can find the new form, which must be used from November 1, 2023 onward, here.
USCIS provides a guide to help employers ensure they are completing the Form I-9 correctly. The form has several sections, and some parts can be complex for those new to the process. Here’s what you need to know about each one.
Section 1
This section must be completed by the employee. It provides information attesting to their identity, and the category under which they are authorized to work. It must be signed and dated within one day of the employee’s start date. It is the employer’s responsibility, however, to ensure that it is complete and timely.
Supplement A to Section 1 must be completed by anyone who prepared this section of the form on behalf of the employee – a translator, for example.
Watch for:
The most common issue with Section 1 is incomplete information. Employers must ensure that all boxes are filled in appropriately by the employee, and the preparer, if there is one. It’s particularly important to note whether the employee must provide additional information as a noncitizen (e.g. A-Number, or Form I-94 number).
Section 2
This section must be completed by the employer. It serves to attest that the employer has verified every document that the employee has presented. A complete listing of acceptable documents is provided in Form I-9, separated into three lists:
- List A
Documents that Establish Both Identity and Employment Authorization
Examples: US Passport, Permanent Resident Card - List B
Documents that Establish Identity
Examples: Driver’s License, School ID Card - List C
Documents that Establish Employment Authorization
Examples: Unrestricted Social Security Card, U.S. Birth Certificate
The employer must also provide complete location information for the business. This section must be signed and dated within three days of the employee’s start date.
Watch for:
The most common errors in this section are missing documents that are required for theemployee, generally either from List A, or from a combination of Lists B and C.
Supplement B (formerly Section 3)
The third required section of Form I-9 provides for reverification of documents, and for rehire. This section is an improvement on the old Form I-9, as it allows for three reverifications, whereas the old form only allowed one (after which a new Form I-9 had to be completed). Employers must be very clear on information that must be reverified – List C documents with an expiration date, for example – and information that does not, such as a passport.
Watch for:
Information in this section must be completed in full. Common errors include incomplete information – including biographical information such as name changes – or information that must be dated but isn’t.
Pandemic Procedures and Remote Employees
During the COVID pandemic, certain allowances were made for employers to verify documents using means other than in-person inspection. This proved particularly beneficial for companies with remote employees. These flexibilities ended on July 31, 2023. For any employees whose documents were reviewed through remote means, you must now take steps to complete in-person, physical examination of these documents by August 30, 2023.
For companies that didn’t enroll in the E-Verify program, all documents required for Form I-9 must now be verified in person.
“If you are going to have to do a new physical examination of the documents,” Galvan says, “You may want to take this opportunity to conduct an internal audit of your Form I-9s. This would also allow you to review the integrity of your verification procedures, especially if you relied on the pandemic era’s remote verification policies.”
For E-Verify employers that are in good standing and enrolled for all their US hiring sites, physical inspection of documents is permitted. E-Verify companies, however, are also able to use an alternative live video procedure as follows:
- The employee photocopies the required documents, front and back, and sends them to the employer (this can be done by email).
- The employer examines the documents as received to ensure they reasonably appear to be genuine.
- The employer conducts a live video conference with the employee to ensure that the document legitimately appears to represent the employee. During this meeting, the employee should show the same documents as were previously sent to the employer.
- The employer retains all supporting documents, and attaches them to the Form I-9, which is kept on file as required.
Compliance Considerations
Form I-9 is a critical aspect of compliance with employment and immigration law. The penalties for violations and errors can be severe. They range from fines – from several hundred-to-thousands of dollars per error – to criminal penalties for companies showing patterns of violation. Companies who are noncompliant may also forfeit eligibility for government contracts.
- Information collection
Ensure that your company has a reliable, structured process for gathering the required information within the timeframe allowed. There should be a designated employee or employees with responsibility for this task. - Correction of information
If corrections are required, there are ways you must make these corrections. When the forms are inspected, any changes should be clearly visible. Erroneous information should be crossed out, not obscured. Any changes must be dated and initialed, showing the history of these changes. Obscuring changes can create liability under immigration law. - Authorized Representatives
Companies may designate an authorized representative to ensure that Form I-9s are completed for each employee. However, companies should be aware that if errors are identified, the employer – not the representative – is the one that is penalized, in the same way as if the employer had completed the form. - Records Retention
Completed Form I-9s must be on file for every current employee. In addition, Form I-9s must be retained for all employees for a period of three years after their start date, or one year after the date of termination, whichever is later. Companies should have a process in place for the secure destruction of forms that are no longer required. - Inspection
Government officials from a wide range of departments – from Homeland Security, to Citizenship and Immigration, to the Department of Justice, and more – have the right to inspect a company’s Form I-9s. Generally speaking, companies are provided with three days’ notice of an audit, except companies who have enrolled in E-Verify.
Because the risks associated with non-compliance are significant, it’s important that companies seek legal advice in the case of an inspection. “Should you receive an email or in-person request for your Form I-9s,” Galvan says, “the first call that you need to make is to your immigration attorney.”
Be Informed
Did you miss the live presentation? There was more discussion on this important compliance topic. Throughout the presentation, Galvan and Yeaw answered numerous questions from the viewing audience. The webinar was recorded, and TechServe members can access the recording here.