By Allen Smith, J.D.
The Form I-9 was born in 1986 but still creates tension between business needs and legal requirements, particularly with remote hires, said John Fay, an attorney and director of product strategy at Equifax Workforce Solutions in Phoenix. I-9 audits by U.S. Immigration and Customs Enforcement (ICE) are another pain point.
A policy of allowing I-9s to be inspected remotely over video to accommodate changes instituted during the COVID-19 pandemic is coming to an end July 31. Employers must physically inspect I-9s that were completed remotely by Aug. 30, Fay said at the SHRM Annual Conference & Expo 2023 on June 13 in Las Vegas.
Physical Inspection Plan
This means employers need a physical inspection plan, which Fay said should include:
- Identifying I-9s that need physical inspection.
- Deciding if physical inspection will occur at the worksite or remotely through the use of an authorized representative.
- Drafting employee communications.
- Ensuring employers have the required written documentation, such as a telework policy.
- Initiating physical inspections and auditing the results.
Most organizations are using authorized representatives to do the I-9 physical inspections. Fay said the representatives can be family members or friends of the employee. However, he added that if the documents presented with the I-9s aren’t real, the employer is on the hook.
Some employers may think there is a conflict of interest with a spouse or friend being the authorized representative. These organizations may decide not to use family or friends as the representatives, especially if the employers are prone to audits, and opt instead to use a notary, attorney or accountant.
Be sure to communicate to remote employees that this physical inspection has to happen and why. The workers otherwise may not know the virtual review was a special circumstance and wonder why they have to do it again. They might even complain to the U.S. Department of Justice if the need for a physical inspection isn’t adequately explained, claiming the employer is requiring overdocumentation.
If a remote employee has left the organization but their I-9 has not been physically inspected, add a note to the I-9 form saying the employer was unable to perform the physical inspection because of the employee leaving and note the date of the separation, Fay recommended.
Audits are another place where business needs and legal requirements can collide, Fay said. He added that audits by ICE can be unpredictable and stressful.
There are two types of violations, substantive and technical, he noted. Substantive violations can include not signing I-9 Section 2 or not completing an I-9 for an employee, a common failure.
Technical violations can include forgetting to enter the employee’s address on the form, for example. ICE will give employees 10 days to correct a technical violation, meaning that if the employer corrects it quickly, “it goes away,” Fay said.
There is inconsistency in audits across the nation, according to Fay, but he said it still pays off to try to correct violations as soon as possible.
He listed the following best practices:
- Start by conducting a self-audit. If an employer does this before ICE shows up, ICE may not fine h even for substantive corrections that have been made.
- Make sure to self-audit both paper and electronic I-9s.
- Find mistakes and make corrections.
Fay noted a new Form I-9 is coming. It will be shorter, creating concerns that employers may make errors on paper I-9s, because the font size will be so small. “No one knows” when the new form will be released, he said.
More states, soon to include Florida with a new law effective July 1, are requiring the use of E-Verify, the digital immigration verification tool run by the federal government, he added.
A glimmer in the eye is a platform called Next Gen that would integrate I-9 and E-Verify and put employees in the driver’s seat. With this system, a mismatch would alert the employee, rather than the employer.
Closer on the horizon is the possibility of permanent virtual I-9 inspection. But it’s likely to come with mandatory E-Verify participation and is “conjecture at this point,” Fay said.
Next Gen and permanent virtual I-9 inspection “would revolutionize the I-9 compliance world,” he said.