The Department of Homeland Security (DHS) recently announced that they have released, effective August 1st, an updated Form I-9 which businesses can begin using immediately. All businesses may continue to use their current Form I-9 through the end of October of this year, but must begin to use the updated form on November 1st.
Remote Worker Hiring and Form I-9
For the hiring of remote workers, the DHS announced that employers will be able to continue to use video to complete the Form I-9 verification process, but only if the business is enrolled in E-Verify.
Along with other changes to the Form I-9, there is a checkbox to indicate if an employee’s Form I-9 documentation was examined using DHS-authorized remote inspection.
Remote Video Form I-9 Process
Businesses considering the video verification procedure need to be mindful of the following:
- Employers may only use the alternative procedure if they are a participant in good standing in E-Verify.
- E-Verify users must complete an E-Verify tutorial that includes fraud awareness and anti-discrimination training.
- Within three business days of an employee’s first day of employment, an employer who chooses to use the remote process must follow these steps:
- Employee should send a copy of their Form I-9 document(s) to the employer for examination;
- A video meeting with employee is than conducted, in part to ensure documentation submitted is in fact a likeness of the individual;
- Employer checks the proper box on the Form I-9, indicating use of this alternative procedure;
- Employers must keep a copy of all documents presented by the employee.
New Form I-9 Availability
The new Form I-9 is available for download at www.uscis.gov/i-9.
Handling of Form I-9s During COVID-19
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.
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.
A Form I-9 should never be completed until a job offer is made and E-Verify should never be used until the Form 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 Form I-9 documents.
Non-Compliance with the Form I-9 Process
While employers should always strive to have perfect Form I-9s, if they have any doubts as to whether someone is work authorized, they should consider reaching out to Marzano Human Resources Consulting. The federal government will hold employers strictly liable for any inadvertent denial of employment due to a misunderstanding of whether an employee is work authorized. Along with that comes a burdensome investigation, mandatory training, heavy fines, and a public relations nightmare.
Should a business have the practice of not completing a Form I-9 on new hires and the government finds out, the business will be targeted for huge penalties which could jeopardize their continued existence.
Services Offered by Marzano Human Resources Consulting
With this increased focus on the Form I-9, businesses need to ensure they are completing this process for all new hires, and within 72 hours of hire date.
Along with following the rules regarding Form I-9 completion, a Form I-9 retention policy is important to ensure compliance with anti-discrimination and privacy laws.
When conducting an HR audit, Marzano HR Consulting many times comes across a business that is not in compliance with the Form I-9 process.
Marzano HR Consulting can offer businesses guidance on ensuring they are in compliance with Form I-9 regulations. If a business has not completed Form I-9s on their new hires, or have not completed them correctly, we can discuss a compliance strategy.