Completing Form I-9 is one of the most crucial steps in the hiring process, as it ensures employers are only employing people who are legally allowed to work in the United States. In 1986, I-9s were created by the passing of the Immigration Reform and Control Act (IRCA) and since its creation, new I-9 forms tend to be issued every several years.
This important HR onboarding document, which is used to record employment eligibility verification, is slated to undergo significant structural changes by the time the current form expires on October 31, 2022. So long as current employees have a valid existing I-9 form already on file, new form I-9s need not be completed. However, the new form should be used for all new hires and rehires.
All employers need to prepare for the proposed changes, which are intended to simplify and clarify the completion of Form I-9 and to avoid fines, penalties and complications for employer’s internal processes.
Proposed Changes: Paper Reduction
In an effort to reduce paper, the Department of Homeland Security (DHS) is compressing Section 1 and 2 into one page instead of two. Section 3 will be a separate Reverification and Rehire Supplement that is a “stand alone” section, only accessed if needed for one of those purposes.
Furthermore, the instructions attached to Form I-9 will also be reduced from 15 pages to 7, and users will be directed to the online M-274 handbook and I-9 Central for all other questions. Removing electronic PDF enhancements to ensure that the forms can be completed on all electronic devices aims to reduce problems that users experience due to software issues.
Updating the List of Acceptable Documents
Another proposed change to Form I-9 updates the list of acceptable documents to include a link to C documents (on the U.S. Citizenship and Immigration Services Website) issued by DHS. C documents serve to prove an employee’s eligibility to work in the United States, such as a U.S. Birth Certificate, U.S. Social Security Card, and Certifications of Birth issued by the U.S. Department of State, among others.
On March 18, 2022, United States Citizenship and Immigration Services (USCIS) issued a Policy Alert titled ‘Documentation of Employment Authorization for Certain E and L nonimmigrant Dependent Spouses.’ Moreover, as of January 30, 2022, USCIS and U.S. Customs and Border Protection (CBP) began issuing Form I-94, Arrival-Departure records, with new classes of admission codes for certain E and L nonimmigrant dependent spouses who are employment-authorized based on their status.
Forthcoming, the List of Acceptable Documents will be updated to include a link to the List C resources in the regulations 8 CFR 274a.2(b)(1)(v)(A-C). Forms I-94 containing these code designations are acceptable as List C, #7 Employment Authorization Document issued by the Department of Homeland Security. Since List C is where the unlisted documentation resides, this will be a helpful resource.
DHS To End COVID-19 Temporary Policy for Expired List B Identity Documents
In March 2020, the Department of Homeland Security (DHS) relaxed its standards for in-person I-9 verification and decreased audits due to COVID-19 closures. DHS is continuing to extend its flexibility regarding the physical presence requirement for I-9 inspection until October 31, 2022. Nonetheless, this flexibility only applies to remote employees.
Now that document-issuing authorities have reopened and/or are able to provide alternatives to in-person renewals, employers must re-verify the physical documents when normal operations resume. Therefore, employers who received an expired list B document from an employee between May 1, 2020, and April 30, 2022, are required to update their Forms I-9 by July 31, 2022.
Focus on Changes to Form I-9 Compliance Requirements
Upon inspecting forms for I-9 compliance, Immigration and Customs Enforcement (ICE) agents or auditors may find technical or procedural violations. In this case, an employer is given 10 business days to make corrections. For all substantive and uncorrected technical violations, an employer may receive a monetary fine, and in certain situations may be criminally prosecuted. Furthermore, an employer determined to have knowingly hired or continued to employ unauthorized workers may be subject to debarment by ICE, meaning that the employer will be prevented from participating in future federal contracts and from receiving other government benefits.
Monetary penalties for knowingly hiring and continuing to employ violations range from $375 to $16,000 per violation, specific to repeat offenders receiving penalties at the higher end. Penalties for substantive violations, such as failing to produce a Form I-9, range from $110 to $1,100 per violation.
Additionally, DHS increased the fine levels for paperwork violations, and as of January 11, 2022, the fine range is $252 to $2,507 per Form I-9. Thus, it is recommended that employers perform regular self-audits and correct any problems before the government gets involved.
If you have questions or concerns regarding the updates to Form I-9 and how it may impact you and your business, please contact the attorneys at Rock, Fusco & Connelly.