Monthly Compliance Calendar Alert – Keep Your Company Compliant in August: I-9 Updates

• _{Not applicable to HUB100 or GHR Hotline Clients}

Holidays

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Important Dates and Deadlines for this Month

August 1

• COVID-19 temporary flexibilities for Form I-9, Employment Eligibility Verification, have ended on July 31, 2023. U. S. Immigration and Customs Enforcement (ICE) announced that employers must complete in-person physical document inspections for employees whose documents were inspected remotely during the temporary flexibilities by August 30, 2023. 
• A revised Form I-9 will be available for use on U.S. Citizenship and Immigration Services’ website at https://www.uscis.gov/i-9
• Alternative methods for remote review of I-9 documents become available for E-Verify users.

August 30 

• Employers who engaged in remote verification of Form I-9 documents must inspect identity and employment eligibility documents again that were initially inspected remotely by this date.

EEO-1 Reporting UPDATES:

• The EEOC has updated the tentative opening of the 2022 EEO-1 Component 1 data collection to the Fall of 2023. 
• Future updates will be made www.eeocdata.org/eeo1 as they become available.

Topics to Discuss and/or Review

1. Review and Implement New I-9 Form . For clients with access to the Forms Library, references to this section can be found in the folder “United States Citizenship and Immigration Service (USCIS)”.

• Key changes to the I-9 Form:
  • The new Form becomes available as of 8/1/2023.
  • Employers may continue to use the older version of the Form I-9 (Rev. 10/21/19) through Oct. 31, 2023. After that date, they will be subject to penalties if they use the older form.
  • The new form is available on https://www.uscis.gov/i-9 and is also available for download in our Forms Library > United States Citizenship and Immigration Service (USCIS) folder.
  • Starting Nov. 1, 2023, all employers must use the new Form I-9
  • Reduces Sections 1 and 2 to a single-sided sheet
  • Supplement for Preparer/Translator Certification
  • Supplement for Reverification and Rehires
  • Additional Acceptable Documents and guidance for automatic extensions.
  • For E-Verify employers, includes a box to indicate the special remote verification.

2. Review procedures for I-9 physical inspection with remote flexibilities ending.

• Since March 20, 2020, U.S. Immigration and Customs Enforcement (“ICE”) has permitted employers to verify Form I-9 documents remotely for workers working exclusively in remote settings due to COVID-19 related precautions. Remote inspection may have involved video, fax, or email verification. These temporary flexibilities to the general rule that all Form I-9 documents required an in-person physical inspection is set to end on July 31, 2023.
• What this means is Employers who utilized the temporary flexibilities must inspect again the identity and employment eligibility documents for those subject workers by August 30, 2023.
• The U.S. Citizenship and Immigration Services (USCIS) has provided a very useful FAQ as well as instructions on how to notate the Form I-9 when inspected in-person after originally being inspected virtually.  

3. Review Alternatives for I-9 physical inspection for E-Verify users: 

• Under current Form I-9 rules, employers are required to physically examine an employee’s original identity and work authorization documents, which has created compliance challenges for many employers with remote hires.
• DHS authorized an option for qualified E-Verify employers to remotely examine identity and work authorization documents beginning on August 1.
• Qualified E-Verify employers are those employers who are in good standing with E-Verify, have enrolled in E-Verify with respect to all hiring sites that use the alternative procedure, and comply with all E-Verify requirements. 
• Steps involved with Alternative method:
  • Within three business days of an employee’s first day of employment, a qualified employer (or an authorized representative acting on such an employer’s behalf, such as a third-party vendor) who chooses to use the alternative procedure must:
  • examine the copies (front and back, if the document is two-sided) of Form I-9 documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine; (Employees will need to first transmit a copy of the document(s) to the employer and then present the same document(s) during the live video interaction)
  • conduct a live video interaction with the individual presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the individual.
  • indicate an alternative procedure was used to examine documentation to complete Section 2 or for re-verification, as applicable.
  • retain a clear and legible copy of the documentation (front and back if the documentation is two-sided); and
  • in the event of a Form I-9 audit or investigation by a relevant federal government official, make available the clear and legible copies of the identity and employment authorization documentation presented by the employee for document examination in connection with the employment eligibility verification process.

4. Review Alternatives for I-9 physical inspection for verify users during COVID-19 flexibilities:

• Employers who were participating in E-Verify and created an E-Verify case for employees whose documents were remotely examined during the COVID pandemic (March 20, 2020, to July 31, 2023), may now choose to use the new alternative live video procedure starting on August 1, 2023 to satisfy the physical document examination requirement by August 30, 2023.
• The employer must notate “alternative procedure” with the date of video examination in the Additional Information Box on Page 2 of the older version I-9. The employer should not create a new case in E-Verify.
• E-Verify employers hiring remote employees on or after August 1, 2023 should use the new I-9 form and complete the Supplement B designating the alternative procedure.
• Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must complete an in-person physical examination by Aug. 30, 2023 for any employees hired during the pandemic.

5. requirements of use for alternative methods:

• Employers should be mindful of the following key issues:
  • E-Verify is only to be used on new hires. The only exception is employees working on a covered federal contract that requires mandatory E-Verify.
  • An I-9 should never be completed until an offer is made and E-Verify should never be used until the I-9 is completed.
  • Employers that were not enrolled in E-Verify at the time they initially performed a remote examination of an employee’s documents under the COVID-19 flexibilities between March 20, 2020 and July 31, 2023 may not use the qualified video flexibility on employees hired since that time unless the employee was hired after the employer enrolled in E-Verify.
  • A remote employee may elect to come into the employer’s office for in-person examination of their I-9 documents.
  • All employers that enroll in E-Verify and are using a digital I-9 software program that interfaces with E-Verify are required to have all users participate in mandatory anti- discrimination training. https://www.e-verify.gov/book/export/html/3802

6. Conduct I-9 Audit - While not required by law, an employer may conduct an internal audit of Forms I-9 to ensure ongoing compliance. See the following steps:

• Communicate with employees: 
  • It is recommended that an employer develop a transparent process for interacting with employees during any internal audit. This includes informing the employees in writing that the employer will conduct an internal audit of Forms I-9, explaining the scope and reason for the internal audit, and stating whether the internal audit is independent of or in response to a government directive.
  • When a deficiency is discovered in an employee’s Form I-9, the employer should notify the affected employee, in private, of the specific deficiency. The employer should provide the employee with copies of his or her Form I-9, any accompanying Form I-9 Office of Special Counsel for Immigration-Related Unfair Employment Practices 2 documents, and any other documentation showing the alleged deficiency.
  • If the employee is not proficient in English, the employer should communicate in the appropriate language where possible.
  • An employer should also provide clear instructions for employees with questions or concerns related to the internal audit on how to seek additional information from the employer to resolve their questions or concerns.
• Gather All I-9 Forms on File – especially those that were completed from March 20, 2020, through July 31, 2023
  • To prepare to conduct physical document inspections and to annotate Forms I-9 completed remotely, gather a list of those employees whose documents were inspected virtually
  • Notify employees or union reps of expected timing for compliance (no later than August 30 to produce documents) and the potential repercussions for failure to cooperate (i.e. inability to retain employee).
• Obtain Forms I-9 for Current Employees Who Are Missing I-9s
  • If a Form I-9 was never completed or is missing, the current version of the Form I-9 should be completed as soon as possible.
  • If an original Form I-9 exists but either Section 1 or Section 2 was never completed, the employee (for Section 1) or the employer (for Section 2) should complete the section as soon as possible. In both scenarios, the employer should not backdate the form, but should clearly state the actual date employment began in the certification portion of Section 2. The employer should attach a signed and dated explanation of the corrective action taken.
• Audit Forms I-9 of Current Employees and Correct errors. For clients with access to the Forms Library, see the document, “ICE I-9 Audit Instructions” found in the folder “United States Citizenship and Immigration Service (USCIS)”
  • Please note: The employer sanctions provision of the INA makes it unlawful for a person or other entity, after hiring an employee, to continue to employ the employee knowing that the employee is, or has become, unauthorized for employment. By regulation, “knowing” includes not only actual knowledge, but also knowledge which may be fairly inferred through a notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about an individual’s unlawful employment status.
• Retain I-9s and purge I-9 Forms that are past retention date. Employers are required to retain I-9s for three years after the employee's date of hire, or for one year following his or her date of termination, whichever date is later). This does not mean to destroy I-9s three years after hire if the employee is still with the Company after three years – but rather one year after that employee terminates.
  • I-9s must always be stored and maintained separately from all other personnel files. This can be a separate binder or file that is accessible only to a few individuals and stored alphabetically for ease of audit in the future. Supervisors and Managers should not have regular access to I-9 forms and documents due to the nature of employees’ protected information that may be listed on I-9.
  • When purging your files of I-9s in the required timeframe, it’s best to use a secure document destruction protocol to lessen the risk of unauthorized exposure.
  • If electronically stored, these documents should be purged within the same timeframe, using a well-documented and secure data wipe process that prevents info from later being recovered or retrieved.
• Complete the Audit

Tips

More information in reference to the topics discussed in this month’s compliance calendar can be found in our comprehensive online Forms Library, which is available to members 24/7. 

Note: This calendar is designed to help our clients review the key human resources-related reporting and notice requirements that may apply to their organizations. Please note that this list is for general reference purposes only and is not all-inclusive. Many of the compliance requirements are complex ERISA or other statutory legal filings and responsibilities may vary depending on your company’s plans. We encourage you to consult with your insurance brokers, plan administrators, and/or your ERISA and tax advisors for further guidance.