Background

The COVID-19 flexibilities, which enabled the temporary virtual inspection of Form I-9, Employment Eligibility Verification (“Form I-9”) documentation will end in the coming weeks. On that basis, employers that virtually inspected Form I-9 documents during COVID-19 will have until August 30, 2023 to complete the normally required physical re-inspection of all Form I-9s for employees who were inspected virtually before August 30. Employers failing to do so could face significant fines if a Notice of Inspection issues.

In anticipation of this burdensome responsibility and rapidly approaching deadline, the Department of Homeland Security (“DHS”): (1) published a final rule on July 21, 2023, which will allow employers already enrolled in E-Verify to remotely examine identity and employment authorization documents; and (2) will publish and release a new and revised Form I-9 on August 1, 2023, which form must be utilized starting no later than November 1, 2023, as explained in further detail below.

Changes on the Horizon

On August 1, 2023, the new and revised Form I-9 will be made available for employers to use on the USCIS website; however, the current version (Rev. 10/21/19) will continue to be effective and can be used through October 31, 2023. As of November 1, 2023, employers will be required to use the new and revised Form I-9 for all new employees and the failure to do so will result in penalties under the Immigration and Nationality Act (“INA”) §274A.

The new Form I-9 has several noteworthy revisions, including:

• Reducing Section 1 (Employee Information and Attestation) and Section 2 (Employer Review and Verification) to one page, without removing any of the previous fields;

• Moving the Preparer/Translator Certification section to a separate, standalone page (Supplement A) that employers can provide to employees as needed;

• Moving Section 3 (Reverification and Rehire) to a separate, standalone page that employers can print if or when rehire occurs or reverification is required;

• Enabling Form I-9 to be filled out on tablets and mobile devices;

• Updating the Anti-Discrimination Notice at the top of the Form I-9 that explains how to avoid claims of unlawful employee/document discrimination;

• Revising the Lists of Acceptable Documents page to include acceptable receipts and provide guidance and links to information on automatic extensions of employment authorization documentation;

• Adding a box that eligible employers must check if the employee’s Form I-9 documentation was examined under a DHS-authorized alternative procedure rather than via physical examination (for employers enrolled in E-Verify only, as described in more detail below); and

• Reducing the Form’s instructions from fifteen (15) pages to eight (8) pages.

What Must Employers Do Between Now and August 30, 2023 To Be In Compliance

Most pressing, it is strongly encouraged that employers take the necessary steps now to ensure that they can complete the required physical examination of Form I-9 documentation of existing employees who were verified remotely under the COVID-19 flexibilities before August 30, 2023. How employers update their Form I-9 will depend on whether the employer is enrolled in E-Verify, given the new rule published by DHS on July 21^st, or whether the employer uses paper Forms I-9 or an electronic I-9 verification system.

Employers Enrolled in E-Verify

Under the final rule published by DHS on July 21^st, employers who were enrolled in E-Verify may use the new Form I-9, which will be made available on August 1^st, to remotely examine identity and employment authorization documents through an authorized alternative procedure, which includes retaining copies of all documents identity and employment authorization documents, conducting live video interactions with the employees, and creating an E-Verify case for new hires.

Only employers who were already participating in E-Verify and created cases for employees during the COVID-19 flexibilities (March 20, 2020 to July 31, 2023) will be permitted to use the new alternative procedure beginning August 1^st.

Employers Not Enrolled in E-Verify

If an employer uses an electronic I-9 system, then they should collaborate with their vendor to complete the information in the “additional information box” or a new Section 2, ensuring that the required annotations for virtual and physical inspection are completed.

If an employer uses paper Form I-9s, the employer must determine who should perform the physical inspection of the I-9 documents. There are situations that may make physical inspection challenging for certain employers, e.g.; what happens if the employer’s workforce is hybrid or remote? What happens if the employer has a large workforce but a smaller HR team?

In these circumstances, employers may use a third-party, such as (a) an authorized representative, (b) designated agent, or (c) neighbor, friend or family member of the employee, to complete the physical inspection process. This can prove problematic because such individuals may not have the requisite training or knowledge in properly completing the I-9 process. Moreover, employers will be liable for any mistakes that such third-parties make in completing the I-9 process should a Notice of Inspection issue. In this regard, should employers choose to use third-parties, it is essential that they take certain steps: (1) create procedures or best practices to offer guidance to third-parties to properly complete the I-9; (2) retain copies of identity and employment authorization documentation; and (3) perform internal audits of I-9s to ensure accuracy.

Conclusion

The Form I-9 process has historically created anxiety for employers given the prospect of civil/monetary penalties for errors in properly completing the forms, even due to innocent mistakes. Such penalties are levied following extensive governmental investigation of a company’s Forms I-9 by U.S. Immigration and Customs Enforcement (“ICE”), and may also result in litigation by an employee or prospective employee turned away due to document abuse and/or for violating the anti-discrimination provisions in the regulations. Now, with this sense of urgency created by the upcoming physical inspection requirement, and changes to the Form I-9 and new alternative procedure, employers may be scrambling for guidance and assistance.

The immigration attorneys at Meyner and Landis have significant experience with the entire lifecycle of the Form I-9 process. If you have any questions regarding the Form I-9 process, please contact us for a consultation as soon as possible.

For further information, please contact:

Anthony F. Siliato | Scott R. Malyk | Lin R. Walker | Stacey A. Simon

Meyner and Landis LLP

One Gateway Center, Suite 2500, Newark, New Jersey 07102

[email protected] | [email protected] | [email protected] | [email protected]

Disclaimer: The information contained herein is intended only for educational or informational purposes and is not a substitute for legal advice. Further, reading this Client Alert in no way establishes an attorney/client relationship between you and Meyner and Landis LLP. Readers should consult legal counsel for definitive advice regarding the current law and regulations and how those apply to your unique situation within your organization.