Despite employers’ best efforts, complying with Employment Eligibility Verification form (Form I-9) requirements can be difficult, and organizations spend a great deal of time and resources trying to comply with Form I-9 requirements. Even small errors can subject employers to expensive violations that can result in fines and penalties.
In recent years, the federal government has increased its Form I-9 enforcement efforts. The U.S. Citizenship and Immigration Services (USCIS), part of the U.S. Department of Homeland Security (DHS), recently requested money from Congress to hire approximately 700 new positions in 2023, signaling a likely increase in Form I-9 audits. This makes Form I-9 compliance especially critical for employers in 2023, as significant changes are expected. By understanding the potential changes to Form I-9 requirements, organizations can reduce their potential legal risks, stay compliant and improve their Form I-9 process.
New Version of Form I-9
The Immigration Reform and Control Act (IRCA) took effect in 1986 to prevent the employment of immigrants lacking permanent legal status in the country. IRCA requires employers, regardless of size, to hire and retain only individuals authorized to work in the United States and imposes strict penalties on those that knowingly employ immigrants who are living in the country illegally. To enforce these guidelines, IRCA requires employers to complete Form I-9 to verify a newly hired employee’s eligibility to work in the United States. By completing Form I-9, employers certify that they have inspected documents verifying that a newly hired employee is authorized to live and work in the United States.
The DHS occasionally revises Form I-9, and employers are required to use the current version of the form for new hires and reverification of employees. On Jan. 31, 2020, the USCIS issued the current version of Form I-9, which expired on Oct. 31, 2022. On Oct. 11, 2022, the DHS announced that employers should continue using the current Form I-9 until further notice. The updated Form I-9 is expected sometime in 2023, and the DHS will publish a Federal Register notice to announce the new version of the form once it becomes available.
The new version of the form is expected to bring major changes to Form I-9 compliance, including condensing Sections 1 and 2 from two pages to one and making Section 3 a supplement. The form’s instructions may also be reduced from 15 pages to seven. Converting Form I-9 to one page will likely streamline the process as well as reduce errors and paper use. Employers can find the most current Form I-9 on the USCIS’ website.
Alternatives to Form I-9 Document Verification
Federal law requires employers to physically examine documents that confirm an employee’s identity and employment eligibility documentation to determine if it reasonably appears genuine and relates to the employee presenting it. On March 19, 2020, in response to the COVID-19 pandemic, the DHS allowed an exemption, permit- ting employers operating remotely to conduct virtual verification of an employee’s approved Form I-9 documents. Qualifying employers can review an employee’s identity and employment eligibility documentation over videoconference, fax or email. This remote verification exemption was set to expire on Oct. 31, 2022; however, on Aug. 18, 2022, the DHS and the USCIS formally published a proposed permanent rule to allow employers to remotely review the Form I-9 identity and employment authorization documents when hiring, reverifying or rehiring employees.
In light of technological advances and new work arrangements—like remote work— the DHS is exploring alternative options for Form I-9 document verification. If finalized, the proposed rule would allow the DHS to create a framework to authorize alternative options for Form I-9 document examination procedures for some or all employers. The proposed rule would formalize the department’s authority to extend flexibilities, provide alternative options and conduct pilot programs to further evaluate alternative procedures for some or all employers, regardless of whether their employees physically report to work at an employer’s work site.
Virtual verification may reduce burdens on employers and employees while maintaining the integrity of the Form I-9 verification process, according to the department’s announcement. Such remote verification would allow employers to centralize their Form I-9 verification process, potentially reducing costs and helping to ensure compliance by permitting experienced staff to perform virtual examinations of documents. It would also enable employers to verify employees’ identity and employ- ability in situations where in-person verification is burdensome or not practical. The DHS also proposed updating Form I-9 to allow employers to indicate whether they inspected employee identity and employment authorization documents using alter- native procedures, like remote verification.
Employer Takeaway
Form I-9 requirements impact all employers. As enforcement actions continue to escalate, Form I-9 compliance appears to be especially vital in 2023. By understanding the expected updates and changes to Form I-9 and the document verification process, employers can help ensure their organizations meet Form I-9 requirements and avoid possible government audits and fines.
For additional updates and compliance resources, visit our TIG Advisors blog.
