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Form I-9 Compliance and Preparedness
May 30, 2023 9:00:00 AM
As we enter the post-COVID era, governmental agencies, such as the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE), are turning their attention toward Form I-9 compliance. As recently as April 2023, DHS and ICE released updates that will taper off previously granted flexibilities, which will affect the Form I-9 process. Due to these updates and increase in Form I-9 observation, it is important that you revisit your Form I-9 policy and procedures to ensure that your business is staying compliant and proactively preparing for the potential of an I-9 audit.
Updates in Form I-9 Requirements
Due to the pandemic, certain flexibilities were created to accommodate the large surge in the remote workforce landscape. First implemented in March 2020, ICE and DHS allowed virtual I-9 verification for employees working remotely due to COVID-19. This has been extended several times in an effort not to impede business operations as the world adjusted to remote work.
Effective July 31, 2023, these flexibilities will no longer be granted. Employers will have 30 days from the previously mentioned effective date to reinstitute physical inspection of Form I-9 identity and employment eligibility documents as well as any annotations made to the Form I-9 for current employees whose documents were completed during this period and for any remote employees hired going forward.
Preparedness
Facing an I-9 audit can be daunting, but it doesn’t have to be. Staying prepared, organized, and ahead of I-9 compliance will make any potential I-9 audit process simpler and will decrease the need for panic if the time comes that your business is faced with an I-9 audit.
Preparedness Tips:
- Create a straightforward, secure, and efficient system for Form I-9 filing. Employers should keep Form I-9 separate from employee personnel files and in a secure location that is readily accessible. To avoid confusion, it is best to keep one folder for current employees and another folder for past employees.
- Designate one point of contact, or department, as the responsible party for I-9 completion. Ensure this designated person or entity is educated on the I-9 completion process and stays up to date on new guidance provided by DHS and ICE.
- Create and frequently review policies and procedures surrounding Form I-9 Completion. Having policies and procedures in place can limit common form I-9 mistakes. Ensuring frequent review of these policies and procedures, as it aligns with business changes and governmental updates, is key to keeping practices up to date.
- Only accept valid and unexpired documents. A list of acceptable documents can always be referenced on the U.S. Citizenship and Immigration Services (USCIS) website. Documents should be the original document, no copies, and expiration dates should be checked diligently.
- Develop regular I-9 compliance audits. Developing a process where I-9s are reviewed on a scheduled basis not only safeguards compliance but also helps businesses stay prepared in the event they are faced with an unexpected I-9 audit. The frequency in which a business should schedule internal audits depends on company size and industry. Industries with high staff turnover should conduct more regular audits.
Internal Audits and Form I-9 Inspections
Although not required by law, it is best practice that employers create a culture of compliance. Creating a system for internal audits ensures ongoing compliance with the rules set forth by USICS. When conducting an internal audit of your business's Form I-9s, there are many avenues to consider.
Internal Audit Tips:
- Develop a Checklist. Creating a checklist is a surefire way of making sure there aren’t any steps overlooked or missed during an internal audit. An audit checklist can be used to guide the entity in charge of conducting the audit through a thorough internal I-9 review, including a timeline for purging old I-9s, common errors per section, and a compliant correction process.
- Keep a current census of active and terminated employees. Easy access to employee hire and termination data can make the audit process more efficient.
- Determine how you will conduct the audit. During an audit, employers may choose to review all completed I-9s or a sample group of I-9s, selected and based on non-discriminatory criteria.
- Identifying errors with employees. When errors are identified, affected employees should be informed confidentially.
- Correcting discrepancies/errors on the Form I-9. Errors on Form I-9 should be corrected by whoever completed the form. Section 1 errors should be fixed by employees. Errors in Section 2 and Section 3 should be fixed by the employer and, ideally, the same person who received the documents and signed the certification. If that person no longer works for your company, it’s easiest to fill out a new I-9 (unless only a small change is required).
- Familiarize your business with what to expect during an official audit. Education and awareness of what to expect during an official audit can be beneficial to creating your audit process.
Additional Form I-9 Reminders
- Ensure you are using the most up-to-date Form I-9 when completing the I-9 process. The most up-to-date version is found here on the USICS website.
- The following employees are subject to the verification process:
- All employees hired after November 6, 1986; and
- Employees who left employment and are rehired more than three years after the original hire date.
- Employers must have an I-9 on file for every active employee.
- Employers must have an I-9 on file for every terminated employee for three years following the date of hire or one year following the date of termination – whichever is later.
Form I-9 non-compliance penalties can be costly and problematic; however, your business can decrease the likelihood of fines and liability by staying organized and prepared to ensure ongoing compliance with Form I-9 policy. If you need help reviewing your Form I-9 practices, reach out to your dedicated FrankAdvice Human Resources Consultant for assistance.
