By John Fay
During the past few years, HR departments across the US have faced a significant number of new government rules relating to I-9 and E-Verify, due in large part to COVID-19 but also as a result of emerging immigration-related policies that in some cases, make meaningful changes to how employers verify work authorization of their newly hired employees.
While many of these changes were designed to make onboarding easier for employees and candidates, HR departments often struggle to keep up with the new requirements (which can sometimes change at a moment’s notice) and worry about the potential impact in the event of a government audit or inspection.
As we enter the new year, we’re taking a look back at 5 of the most pressing I-9 related issues facing employers today, many of which have arisen as a result of recent policy changes.
And to help make sense of these changes (and their practical effects on employers), I’ve asked three I-9 aficionados from the American Immigration Lawyer’s Association (AILA) Verification and Documentation Liaison Committee to offer their insights.
Katie Minervino from Pierce Atwood LLP reminds us that we’re still “in a waiting game” with respect to a new proposed I-9 form version that is currently being reviewed by the Department of Homeland Security (DHS). In 2022, DHS invited the public to share comments on the agency’s proposed revisions, which includes several structural and policy-related changes to our favorite onboarding form.
While the agency finalizes their review process, employers are instructed to continue using the current version of the Form I-9 (with a 10/21/19 edition date) until further notice, even though the form has an expiration date of October 31, 2022 in the top-right corner.
While the thought of a new I-9 version may sound disruptive, DHS has indicated in their public comments that they will provide employers with a grace period for adopting the new form once released. As we often say in the I-9 world, stay tuned for further updates.
As previously reported, DHS is considering a more permanent version of its popular COVID-era “virtual verification” option for examining I-9 documents of newly hired, rehired, or reverified employees. Many organizations have been using the so-called “temporary” virtual verification option for employees hired during the pandemic who are working remotely due to COVID concerns. Per the DHS rules, employers may “virtually” inspect the employee’s documents (using video, email, fax, etc.) and then perform a later in-person physical inspection when the employee begins non-remote employment on a regular, consistent, or predictable basis. DHS recently extended the temporary virtual policy until July 31, 2023.
In the meantime though, DHS is considering a permanent expansion of the program, which may include new requirements such as mandatory E-Verify participation, employer specific training, fraudulent document detection and/or an anti-discrimination training, and may require additional or different retention requirements of employers. Additionally, the rule may restrict users from participation if they have been subject to a fine, settlement, or conviction related to Form I-9, amongst other things. DHS invited public comments and suggestions on the new framework earlier this summer, and the agencies are currently reviewing the submissions.
But the question remains….will a new virtual verification program be available anytime soon? Not necessarily, according to Katie Minervino. She notes that it may be a year or longer before we see a final rule from DHS (which takes into account a second 30-day Federal Register notice and opportunity for public comment).
Katie also notes that the final rule may not take effect immediately, since the government may introduce permanent virtual through an implementation period or even a “pilot” phase. Regardless of this future program, Katie advises employers to follow the “current” rules with respect to the COVID-19 temporary policy, which includes performing the follow-up physical inspection of documents, a step that will likely be reviewed in the event of an audit by Immigration and Customs Enforcement (ICE).
Speaking of audits, employers also need to remember that ICE is not the only agency that enforces the I-9 requirement. The Department of Justice (DOJ), through its Immigrant and Employee Rights section (IER) enforces the anti-discrimination provisions of the law. And IER has been extremely active as of late, particularly in regard to citizenship discrimination and unfair documentary practices complaints.
Helen Konrad of McCandlish Holton, P.C. notes that citizenship discrimination can occur in the hiring, firing, and recruitment steps when an employer treats an individual differently based on their protected class. A classic example is when an employer improperly imposes a “US citizen only” policy that is not required by law, regulation, or applicable government contract.
Recent examples of DOJ discrimination settlements include a firearms manufacturer that had a policy of unlawfully screening out certain non-U.S. citizen job candidates, including asylees and refugees, as well as a grocery store chain that had required newly-hired non-U.S. citizens to show their green cards to prove their permission to work, even though they had already provided valid documentation. Both settlements resolved allegations that the employers were in violation of the Immigration and Nationality Act (INA) and show that citizenship discrimination complaints will continue to be a hot topic into 2023.
Employers may wish to inquire about an applicant’s citizenship status in order to determine whether they require visa sponsorship. IER has long said that the following inquiries may be used:
Are you legally authorized to work in the United States?
Will you now or in the future require sponsorship for employment visa status (e.g., H-1B visa status)?
Such questions are generally permissible since these individuals (such as those on an H-1B visa) are not “protected” under the statute for citizenship status discrimination. The problem though, according to Helen Konrad, is that a foreign student working on an EAD may answer yes to the first question and no to the second – especially, when they have an extended amount of time left on their EAD. The employer may then find themselves in a situation where they will need to sponsor the individual in the near future in order to retain their employment.
While some have suggested asking more detailed citizenship status questions (as a means of discerning these sponsorship-requiring individuals), IER strongly advises against this – noting that additional questions about one’s citizenship status may confuse the applicant and/or lead to the perception of discrimination in the event the applicant is not chosen. For all those reasons, IER continues to refer employers back to the two original questions for sponsorship inquiries, despite their limitations.
And employers also need to think about state law implications too. While immigration-related provisions are typically governed by federal law and regulatory procedure, several new and emerging state laws also prohibit employers from making employment decisions based on an individual’s immigration status or their length of status. For example, Illinois Public Act 102-0233 ensures that anyone with federal work authorization, is protected from employment discrimination – providing a much broader scope than federal law.
Last but not least, Kimberley Best Robidoux with Wolfsdorf Rosenthal LLP reminds us that I-9 compliance can be exceedingly complex for HR, particularly when trying to understand the various immigration-related documents that may be presented by employees.
And those document combinations are constantly changing, whether due to COVID relaxations, new immigration policies, or just internal government changes. As a recent example, the United States Citizenship and Immigration Services (USCIS) announced that employers can now accept expired green cards along with receipts for certain naturalization (citizenship) applications as explained here.
According to Kimberley, the USCIS acknowledges the challenges faced by employers and has expressed a strong interest in making the “known universe” of acceptable document combinations more accessible by working with stakeholders from AILA and other organizations. In the meantime, employers should consult the M-274 Handbook for Employers for the most in-depth coverage of I-9 rules and procedures from the government.
As Form I-9 and E-Verify rules continue to evolve at a rapid pace, employers must recognize that they are being held to a much higher standard than ever before. If you’re new to the wonderful world of Form I-9, we highly recommend that you carefully review your I-9 program (including the use of new electronic tools) to help you ensure you’re staying ahead of the curve in 2023 and beyond.
If you are looking for assistance with managing your I-9s for your organization, take a look at our I-9 Management suite of services, or learn more by downloading our HR Checklist for I-9 Enforcement.
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