By Julie A. Pace, Heidi Nunn-Gilman, David A. Selden
The penalties for I-9 errors, like everything in life, have increased for inflation. One error on the Form I-9 can result in fines of over $2,700 per Form I-9. Employers need to ensure that they are in full compliance with the employment eligibility verification and I-9 requirements.
I. Companies Using and Relying on electronic I-9 systems Incur Millions in FineS and ALSO Could be DebarreD.
Companies using electronic I-9 systems need to audit third-party electronic I-9 systems to ensure that the electronic I-9 system is compliant. One of the areas where many violations occur is with the audit trail, which must record any action taken (data entered), the person who entered it, and the time at which it was entered. Another area that may face challenges of compliance is the electronic signature. The system should have a pin, password, or other verification that the signature is applied by the employee.
The employer, NOT the electronic I-9 provider the company paid and hired, is liable for fines from ICE. ICE considers any Form I-9 that is created by a non-compliant electronic I-9 system as a Form with a substantive error, regardless of whether the Form I-9 is fully complete or contains any other errors. With penalties over $2,700 per form, a non-compliant electronic I-9 system can be a huge liability. Companies are engaging in litigation with its third party electronic I-9 provider about fines and consequences.
II. TEMPORARY POLICY ALLOWING remote completion of Form I-9 without physical inspection of documents ends July 31, 2023
The temporary policy from USCIS allowing employers to complete the Form I-9 for remote workers without an in-person physical inspection of the Section 2 documents ends on July 31, 2023. Employers must physically inspect the documents for any employees whose I-9 was completed using the COVID-19 remote protocols by August 30, 2023.
Employers who remotely completed the Form I-9 without a physical inspection of the documents must physically inspect the original documents used to remotely complete the Form I-9 notate the physical inspection in the “additional information box” in Section 2 as follows:
a. If the same person who completed the remote inspection completes the physical inspection, write “COVID-19, Documents Physically examined on mm/dd/yyyy by [initials]”
b. If a different person does the physical inspection of documents than did the remote I-9, write “COVID 19, documents physically examined on mm/dd/yyyy by [Name], [Title]”
c. If employee present a different document from the List of Acceptable Documents than what the employee provided for the remote inspection, USCIS advises complete Section 2 of a new Form I-9 and attach to the Form I-9 completed originally with remote inspection of documents.
d. If the document presented for remote inspection at the time of hire has expired, employer may still accept it for in-person inspection and should not request a new unexpired document because the document was unexpired at the time of hire (except if the person was an alien with temporary work authorization and work authorization expired)
e. If an employee has separated prior to the date a physical inspection of documents can be completed, note this in the Additional Information box on page 2 of the Form I-9.
f. If an employee refuses to provide documents for an in-person physical review of the documents, USCIS has stated that an employer cannot continue to employ the individual.
III. Options for remote completion of the Form I-9.
After the temporary COVID rules expire, an employer representative must physically inspect documents to complete Section 1. For remote hires, the employer may designate another person to physically inspect the documents and complete Section 2. The employer, however, remains liable for errors.
A designated representative can be essentially anyone, including another employee, but employee cannot complete Section 2 of their own Form I-9. Notary publics (except as prohibited by state law and not to notarize I-9), HR consultant, employment law attorney, etc. can be employer representatives. A family member or friend can be used but not typically recommended because they lack knowledge of I-9 process. Some electronic I-9 systems offer a network of individuals to complete the physical inspection required in Section 2 for remote workers for companies who use the electronic I-9 system.
IV. Proposed pilot program for remote i-9 completion.
On August 17, 2022, USCIS published the Notice of Proposed Rulemaking to revise the I-9 rules to allow USCIS to propose pilot programs for alternative procedures for reviewing documents, other than physical examination of the original documents. The regulations do not propose the alternatives, just allow USCIS to create pilot programs to test various methods. The regulations propose changes to I-9 to require employers to specify when the alternatives methods of reviewing documents were used.
V. Proposed new 1-page form I-9.
The current Form I-9 has an expiration date of 10/31/22. USCIS has instructed that employers continue to use it until a new Form I-9 is issued.
USCIS has proposed a return to a one-page Form I-9 that consists of Sections 1 and 2 on one page. Section 3 for rehires or reverification, as well as the preparer/translator section, would be on a separate page to “supplement” and add to the I-9 if those sections are needed. Stay tuned for a new I-9 to start using when it is available.
