DHS Ends Form I-9 Requirement Flexibility
During the height of the COVID-19 pandemic, many employers had to make significant changes to the way employees were hired and onboarded due to the physical precautions set in place across the nation. One of those changes included how employers verified an employee’s authorization to work in the United States via Form I-9. Initially announced in March 2020, the Department of Homeland Security (DHS) provided employers with the flexibility to examine employees’ identification and employment authorization documents remotely (e.g., over video link, fax, or email), with the expectation that physical examination of these documents would occur in the future.
New DHS Announcement and Deadlines
DHS has recently announced that employers now have until August 30, 2023 to perform all required physical examination of identification and employment authorization documents for individuals hired after March 20, 2020 and who have only received a remote examination under the flexibilities.
However, DHS clarifies that employers who used the flexibilities during the pandemic (March 20, 2020 to July 31, 2023) will not be required to physically examine the documentation of those hired under those flexibilities so long as the employer:
- Was enrolled in E-Verify at the time of hire, or;
- Created an E-Verify case for that employee and;
- Performed the remote inspection between March 20, 2020, and July 31, 2023
Unless these conditions are met, employers must physically inspect the documentation of those hires whose identification or employment authorization documents were examined remotely no later than August 30, 2023. This requirement also applies to re-verification as well.
Remote Work and In-Person Document Inspection
Our company began operating remotely during COVID-19 and will not return to work in the office. Must we still conduct the in-person document inspection for each employee who we hired or reverified while using the COVID-19 remote inspection flexibilities?
Yes. Employers must physically examine documents for those employees who were hired on or after March 20, 2020, and for whom the employer has to date only conducted a remote inspection consistent with the flexibilities first announced in March 2020. Employers will have 30 days after the end date of the flexibilities on July 31, 2023 – that is, until August 30, 2023 – to complete an in-person physical inspection.
If our employees are all working across the country rather than in my location, how can I complete the in-person inspection? Are there alternative options?
Alternative Options for In-Person Inspection
If an in-person inspection is a difficult feat, employers do have alternative options to help complete this requirement:
Using an Authorized Representative
Employers may designate an authorized representative to fill out Forms I-9 on behalf of their company, including personnel officers, foremen, agents, or notary public. DHS does not require the authorized representative to have specific agreements, certifications, or other documentation for Form I-9 purposes. If an authorized representative fills out Form I-9 on behalf of the employer, the employer is still liable for any violations in connection with the form or the verification process.
When completing Form I-9, the employer or authorized representative must physically examine, with the employee being physically present, each document presented to determine if it reasonably appears to be genuine and relates to the employee presenting it. Reviewing or examining documents via webcam is not permissible.
If the authorized representative refuses to complete Form I-9 (including providing a signature), another authorized representative may be selected. If the employer hires a notary public, the notary public is acting as an authorized representative of the employer, not as a notary. The notary public must perform the same required actions as an authorized representative. When acting as an authorized representative, the notary public should not provide a notary seal on Form I-9.
Use a Third-Party Vendor to Complete Form I-9s
There are third-party vendors that offer the completion of Form I-9 Section 2 through an authorized I-9 representative near your new hires at a time that’s convenient for them. Typically available for an additional fee, this service helps with offsite I-9 completion.
For a list of reputable I-9 Verification Vendors, you can visit this website.
E-Verify and Remote Verification
In addition to the above options, employers who may plan to continue to verify employees’ I-9 documents remotely can enroll in using E-Verify. DHS published an accompanying document in the Federal Register describing and authorizing employers enrolled in E-Verify the option to remotely examine their employees’ identity and employment authorization documents under a DHS-authorized alternative procedure, provided they follow certain steps.
The Federal Register document provides an alternative for certain employers to remotely examine Form I-9 documents instead of the current requirement to examine documents physically in person. To participate in the remote examination of Form I-9 documents under the DHS-authorized alternative procedure, employers must be enrolled in E-Verify, examine and retain copies of all documents, conduct a live video interaction with the employee, and create an E-Verify case if the employee is a new hire.
Employers can enroll in E-Verify at any time.
Importance Of Compliance
It is important for employers to be compliant with DHS’s requirements related to Form I-9s, as non-compliance can result in hefty fines. For example, mistakes or technical violations on Form I-9s can range from $252-$2,507 for first offenses and $1,161-$2,322 for second and subsequent paperwork offenses per violation. According to Paycor, in 2019, ICE delivered 6,500 Notices of Inspections and reached $14.3 million in fines, penalties, and forfeitures.
EnformHR’s seasoned professionals can help you navigate these important changes. Reach out to our team today to see how we can assist you.