Despite concerns expressed by stakeholders, U.S. Citizenship and Immigration Services (USCIS) has returned to a one-page format for Form I-9, Employment Eligibility Verification. What may seem like a technical change has important consequences for employees and their employers.
For nearly 38 years, employers and certain agricultural recruiters and referrers for a fee have used Form I-9 to verify the identity and U.S. work authorization for new hires. Ensuring work documentation is up-to-date is important and requires vigilance. With the exception of green cards, if a noncitizen’s work authorization documentation has an expiration date, the employer must reverify for continued authorization before that date. Reverification also is required if a former employee is rehired but their employment authorization, as listed on the Form I-9, has expired.
The verification requirements are due to the passage of the Immigration Control and Reform Act. Congress made it unlawful, beginning on November 7, 1986, to knowingly hire a noncitizen unless they are a lawful permanent resident or hold work authorization. Employers also have record-keeping requirements, and may face a range of civil or criminal penalties for violations of the laws governing work authorization.
The new Form I-9 will be available on August 1, 2023, and must be used exclusively as of November 1, 2023.
Form I-9 began as a one-page form and remained so for more than 20 years. But for the last decade, Form I-9 has been two pages.
The American Immigration Lawyers Association (AILA) has concerns about the new shorter form. Based on experience with a one-page form, AILA is concerned employees or employers will accidentally supply information for each other’s sections, which is prohibited. For example, only the employer or its authorized representative may insert information about the documentation the employee provides as to their identity and work authorization. And only the employee may answer the questions as to their “citizenship or immigration status,” unless the employee receives assistance from a preparer or translator. AILA also is concerned that without more informative fields in both sections, employees and employers will make more mistakes. Such errors could have serious consequences, as the employee and employer (or representative) must sign their section under penalty of perjury.
Employers continue to face numerous challenges in determining whether various combinations of documents are acceptable proof of work authorization. USCIS revised the “Lists of Acceptable Documents” to include some receipts and links to USCIS’ “I-9 Central” and USCIS Handbook for Employers M-274. However, there are numerous additional document combinations USCIS has not included. Employers would benefit from more examples in a single location rather than being directed to multiple websites.
In a positive development, in conjunction with the new Form I-9, the Department of Homeland Security/U.S. Immigration and Customs Enforcement (DHS/ICE) established a framework for optional alternatives to in-person physical examination of documents. This final rule, effective August 1, 2023, amends the longstanding regulatory requirement that employers physically examine in-person an employee’s documentation within three business days after the first day of employment.
For many years, AILA and others have pressed for changes to in-person review to reflect the reality of employees whose worksites are far from company offices where trusted and trained personnel review their documentation. In response to the COVID-19 pandemic, DHS/ICE provided some flexibilities for remote examination of documentation, which end on July 31, 2023. DHS/ICE previously announced that employers who had used the temporary alternatives had until August 30, 2023, to physically examine documentation for employees hired on or after March 20, 2020. But DHS/ICE has offered one optional alternative now.
By separate notice, DHS/ICE established one optional alternative, available August 1, 2023, that allows electronic verification with a “live video call interaction.” The option is limited to employers who, as defined in the notice, participate in and are in good standing with E-Verify.
E-Verify is a DHS online system through which registered employers verify whether an employee is employment-eligible. The system relies upon records available to DHS and the Social Security Administration to compare with the information the employer enters from the Form I-9 to assess employment eligibility. Prior to this notice, except during the COVID-19 flexibilities, E-Verify employers also had to comply with the regulatory requirement to verify documentation in-person when completing Form I-9.
Qualified E-Verify employers may select the option for employees hired on or after August 1. Qualified employers who were enrolled in E-Verify during the COVID-19 flexibilities, and who meet other conditions described in the notice, also may use the alternative instead of physically examining documentation by August 30, 2023, that they previously examined using the COVID-19 flexibilities. The notice permits qualified E-Verify employers to use the option for some employees (such as only for remote, but not for hybrid workers at a worksite), without discriminating.
In a July 21 press release about the new option, DHS also stated that for an “otherwise compliant” employer that followed the agency guidance on COVID-19 flexibilities, ICE would “generally not focus its limited enforcement resources on Form I-9 verification violations for failing to complete physical document examination by August 30, 2023,” particularly in cases where the employer demonstrates it took “timely steps” to complete the examination within a reasonable period.
The final rule allows DHS/ICE to establish a pilot program, which it could open to all employers or limit to only some employers. Any pilot program requires a determination by the agency that either the alternative procedures 1) “offer an equivalent level of security” to in-person document review or 2) are temporary to address a public health emergency declared by the secretary of Health and Human Services or a national emergency declared by the president, as provided by certain laws.
The one-page I-9, and the lack of detailed guidance as to combinations of documents that establish work authorization, are likely to frustrate employers and employees and lead to errors. I-9 errors can have serious consequences such as mistaken termination of a work-authorized employee. Two welcome developments, however, are the alternative option to physical examination of documentation and the framework for a pilot program. USCIS and ICE should continue to heed the warnings and good advice of stakeholders who use the form so processes in place for work authorization successfully respond to the evolution of the contemporary workplace.
FILED UNDER: USCIS