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Although the Department of Homeland Security (DHS) recently relaxed I-9 requirements for employers operating remotely as a result of the COVID-19 crisis, employers are still left with some questions on how to meet their obligations in this uncertain time.
Under federal guidance, employers are temporarily no longer be required to review an employee’s identity and work authorization documents in the employee’s physical presence. Instead, inspection of these documents can be conducted remotely (e.g., by video, fax, or email).
According to the U.S. Citizenship and Immigration Services (USCIS), “if employers are performing inspections remotely (e.g., over video link, fax or email, etc.) they must obtain, inspect, and retain copies of the Section 2 documents within three business day of hire. In addition to completing Section 2, Employers also should enter ‘COVID-19’ in the Additional Information field.”
Then, when “normal operations resume,” all employees whose documents were presented via remote verification must, within three business days, undergo the required “in-person” examination of documents. The person conducting the physical examination should write the words “documents physically examined” in the Additional Information box in Section 2, and should include their name and the date of inspection.
It is important to keep in mind that the DHS’s relaxed requirements apply only to employers who are operating remotely. According to the guidance, if there are employees physically present at a work location, then you must follow the normal in-person physical inspection rules. However, if newly hired employees or existing employees of an employer who still has employees present at a work location are subject to COVID-19 quarantine or lockdown protocols, “DHS will evaluate this on a case-by-case basis.”
While employers appreciate the DHS’s temporary relaxation of the in-person document inspection rules, some questions are not addressed by either DHS or USCIS. Here are the most common questions we have seen and the best practices to follow.
On Jan. 31, 2020, USCIS published the Form I-9 Federal Register notice announcing a new version of Form I-9, Employment Eligibility Verification, that the Office of Management and Budget approved on Oct. 21, 2019. This new version contains minor changes to the form and its instructions. Employers should begin using this updated form as of Jan. 31, 2020.
The notice provides employers additional time to make necessary updates and adjust their business processes. Employers may continue using the prior version of the form (Rev. 07/17/2017 N) until April 30, 2020. After that date, they can only use the new form with the 10/21/2019 version date. The version date is located in the lower left corner of the form.
USCIS made the following changes to the form and its instructions:
Revised the Country of Issuance field in Section 1 and the Issuing Authority field (when selecting a foreign passport) in Section 2 to add Eswatini and Macedonia, North per those countries’ recent name changes. (Note: This change is only visible when completing the fillable Form I-9 on a computer.)
A revised Spanish version of Form I-9 with a version date of 10/21/2019 is available for use in Puerto Rico only.
The federal government’s Form I-9, used by HR departments across the country to verify workers’ employment eligibility, is expiring at the end of this month.
The Department of Homeland Security (DHS) is expected to extend the current version of the form (marked 8/31/2019) without changes, although minor clarifications will be made to the form’s instructions. The agency has directed employers to continue using the current version of the form despite the expiration date until a revised version is available.
Here are three of the proposed revisions:
In the past week, Immigration and Customs Enforcement (ICE) has significantly increased the number of Notices of Inspection issued to employers nationwide, leading to a dramatic spike in I-9 audits. Unlike the enforcement initiative rolled out by federal authorities in February of this year, the latest sweep is no longer concentrated in Southern California but appears to be nationwide in scope.
There appears to be somewhat of a pattern with regard to which employers are targeted by this effort. ICE seems to be focusing on businesses operating in states, counties, and cities that have designated “sanctuary” status, and has also ramped up efforts to follow up with employers who have been subject to an I-9 audit in the past.
Regardless of whether you fall into either of these two categories, you are at increased risk of a visit from federal immigration authorities. What should you do today to prepare for a possible knock on the door from federal officials tomorrow?
The federal government’s electronic employment verification system will be unavailable this weekend due to system upgrades.
U.S. Citizenship and Immigration Services (USCIS) announced that E-Verify will be shut down from midnight March 23 to 8 a.m. March 26 Eastern Time. E-Verify users are encouraged to complete and close any open cases prior to the system shutdown.
The Department of Homeland Security and the Social Security Administration will not be able to assist employees with case resolution issues during the outage. myE-Verify, the system’s resource portal for workers, will also be unavailable.
“During the suspension, employers will not be able to access their E-Verify accounts and employees will be unable to resolve E-Verify tentative nonconfirmations,” said Michael H. Neifach, an attorney in the Wahington, D.C., regional office of Jackson Lewis. “The E-Verify outage does not change any Form I-9 requirements,” he added. “Form I-9s must be completed no later than three business days after employment.”
To minimize the shutdown’s impact, the agency stipulated:
USCIS is prepping for a move to an upgraded user interface later this month. Enhanced features are expected to include a streamlined process for creating and managing cases, modernized data-matching to reduce tentative nonconfirmations, and improved data integrity.
U.S. Citizenship and Immigration Services (USCIS) has released an updated version of the Form I-9, Employment Eligibility Verification. The new Form I-9, dated 11/14/2016N, will become mandatory on Jan. 22, 2017, replacing the version dated 03/08/2013 N, which may continue to be used until Jan. 21, 2017.
The new Form I-9, which must be used for all newly hired employees and those who require the re-verification of their U.S. employment eligibility, contains a number of new features, including but not limited to:
1) Clarification of the “other names used” field in Section to request only “other last names used” and the numbering of immigration status categories in Section 1;
2) Additional details regarding the preparer/translator category, including the ability to select multiple preparers/translators;
3) A designated area to enter additional information that previously needed to be entered as a margin note, such as the auto-extension of an individual’s work-authorized status, where applicable;
4) A separate page (Page 3) for Section 3 of the Form I-9;
5) Additional prompts and electronic enhancements, such as drop-down lists and calendars, to facilitate the proper entry of required information.
The current version of the Form I-9, the most fundamental tool used to determine if applicants are eligible to work in the U.S., expired on March 31. Until further notice, though, employers should keep using the expired form until the recently proposed “smart” I-9 is in effect, according to U.S. Citizenship and Immigration Services (USCIS).
Dave Basham, a senior analyst in the verification division at USCIS, has been answering the following question a lot recently: “What will happen on March 31, 2016, when the Form I-9 expires?” Basham says: “Employers should continue to use the current version of the form as it continues to be effective even after the OMB [Office of Management and Budget] control number expiration date March 31, 2016, has passed.”
On March 28, 2016, USCIS published a second round of proposed changes to the form in the Federal Register, giving the public 30 days to comment. Once the comment period ends April 27 and comments are considered, USCIS may make further changes before sending the proposal to OMB, which will need to review and approve it. The form will be available for download at www.uscis.gov upon being approved.
“Employers must continue to use the current version of Form I-9 until the proposed version is approved and posted on the USCIS website,” said Amy Peck, an immigration attorney in the Omaha, Neb., office of Jackson Lewis.
The proposed, revised form is designed to address frequent points of confusion that arise for both employees and employers.
The proposed changes specifically aim to help employers reduce technical errors for which they may be fined, and include:
The proposed changes will have far-reaching impact because all employers are required to complete and maintain the Form I-9 for each employee hired to verify their identity and authorization to work in the United States.
Failure to thoroughly complete I-9 paperwork has left an event-planning company with a fine of $605,250 (the largest amount ever ordered) serving as a reminder that employers need to be taking I-9 compliance very seriously.
On July 8, 2015, the Office of the Chief Administrative Hearing Officer (OCAHO), which has jurisdiction to review civil penalties for I-9 violations, ordered Hartmann Studios to pay the fine for more than 800 I-9 paperwork violations.
Immigration and Customs Enforcement (ICE) audited the company in March 2011.
The bulk of the violations charged against Hartmann were due to a repeated failure to sign section 2 of the I-9 form. Employers are required to complete and sign section 2 within three business days of a hire, attesting under penalty of perjury that the appropriate verification and employment authorization documents have been reviewed.
ICE found 797 I-9s where section 2 was incomplete. About half of these incomplete forms related to individuals from the International Alliance of Theatrical Stage Employees Union Local 16A, who worked for Hartmann on a project-by-project basis during the term of a collective bargaining agreement. Even though the union workers worked on a project-by-project basis, they were not terminated upon completion of a project and remained “on-call.” The union created a “three-in-one” form that combined a portion of a W-4 form, parts of sections 1 and 2 of an I-9 form, and a withholding authorization for union dues. No separate I-9 form was completed for these workers nor did Hartmann sign section 2 of the union form.
Hartmann could have been charged with the more-substantive offense of having failed to prepare any I-9 form at all for the 399 union members, because the union’s form is not compliant, but OCAHO declined to do so.
Hartmann told OCAHO it believed that the union form was sufficient to confirm that the workers had proper employment authorization, and that nothing further needed to be done to confirm their eligibility for employment. The company also said that it did not know signing section 2 of the form was a legal requirement.
In addition to failing to sign section 2, Hartmann was also cited for:
This case demonstrates the need for employers to conduct routine self-audits of their I-9 inventories to ensure that the forms have been properly completed and retained and are ready for inspection.
Employers should also ensure that acceptable proof of audits and training is kept so that it may be used as evidence of good faith in court proceedings.
The Immigration Customs and Enforcement division (ICE) of the Department of Homeland Security, continues to issue Form I-9 Notices of Inspection to businesses of all sizes across the nation. In fiscal year 2012, ICE served over 3,000 Notices to businesses, resulting in over $12 million in fines. Additionally, ICE made 520 criminal arrests tied to worksite enforcement investigations. These criminal arrests involved 240 individuals who were owners, managers, supervisors, or human resources employees.
The Notices of Inspection allow ICE to inspect employers I-9 forms to determine compliance with employment eligibility-verification laws. Once the Notice of Inspection has been issued, the targeted employer has three days to provide ICE with the company’s I-9 forms to be reviewed. In addition to I-9 forms for current and recently terminated employees, employers will be asked to turn over payroll records, list of current employees, and information about the company’s ownership.
Civil penalties for errors on the I-9 form can range from $110 to $1,100 per violation. Civil penalties for knowingly hiring and continuing to employ unauthorized workers range from $375 to $3,200 per violation for first time violations. In determining penalty amounts, ICE considers five factors:
1) The size of the business;
2) Good-faith efforts to comply;
3) The seriousness of the violation;
4) Whether the violation involved unauthorized workers
5) Any history of previous violations.
Here are 12 tips to help protect your company and limit exposure for I-9 violations:
1. Make sure you are using the correct I-9 form. U.S. Citizenship and Immigration Services recently released a new version of the I-9 form. Beginning May 7, 2013 only the 03/08/13 version of the I-9 form will be accepted.
2. Have employees complete the form in a timely manner. For a new hire, the employee must complete Section 1 before starting work on the first day. You must complete Section 2 and the Certification by the end of the third business day.
3. Ensure that the Preparer/Translator Section is completed if the employee received assistance completing Section 1 of the I-9 form.
4. Don’t accept any expired documents.
5. Avoid discrimination or document abuse. When completing the I-9 process, do not require the employee to provide specific documents or more documents than minimally required.
6. Don’t play detective. If a document presented by the employee is on the List of Acceptable Documents, reasonably appears to be genuine, and relates to the person presenting it, you may accept that document to complete Section 2 of the I-9 form.
7. Re-verify expiring work-authorization documents before they expire and do not allow any employee to continue to work after a work-authorization document expires.
8.Don’t re-verify U.S. passports or passport cards, Permanent Resident Cards, or List B Identity documents.
9. Keep I-9 forms in a separate binder for current employees and another for terminated employees. Do not keep I-9 forms in employee personnel files.
10. Train the individuals in your company who complete the I-9 process.
11. Conduct self-audits. Correctable errors on the I-9 form should be fixed, the change should be initialed and dated, and the words “Per Self Audit” should be placed beside the correction.
12. Know your rights. If ICE appears to review your I-9 forms and conduct an audit, insist on a written Notice of Inspection and your right to have three business days before you turn over your original I-9 forms.
It’s clear from recent events that ICE will continue auditing employers’ I-9 forms to ensure that all employers are complying with immigration laws. Creating a culture of compliance and auditing your company’s forms is the best way to prepare your company for an ICE I-9 audit.
Please contact our office regarding any questions that you may have on performing an I-9s or how to perform an I-9 audit.