One thing that is common to most small businesses is that they hire employees. Employees can be an integral part of a business’s operations, whether the business has several employees or just one. From a legal perspective, there are several different laws that govern the hiring and maintaining of employees. These laws address areas such as anti-discrimination, health and safety, and immigration, amongst several others. The application of these laws can differ depending on whether the employer is one that the law covers (typically requiring a minimum number of employees). One legal requirement that governs all employers, regardless of size, is the United States Citizenship and Immigration Services’ (USCIS) obligation that all employees complete the Form I-9.
On August 18, 2022, the Department of Homeland Security (DHS), the agency responsible for overseeing USCIS and Form I-9 processes, proposed a change to the federal regulations that would affect the Form I-9. This post will explore what the Form I-9 is, how its processes have changed with COVID-19, how the proposed law will change the Form I-9, and what small businesses need to be aware of if the rule is adopted as-is.
What is the Form I-9?
The Form I-9 is used to “verify the identity and employment authorization of individuals hired for employment in the United States.” As stated previously, all employees in the United States are required to complete the form when they are hired by their employer. The responsibility is placed on the employer to ensure that it is completed correctly. The Form I-9 requires basic identifying information, such as name, address, and date of birth.
Most importantly, the Form I-9 requires that the employee present “acceptable documents as evidence of identity and employment authorization.” An employee must provide either one document from “List A” or two documents, one from “List B” and one from “List C,” as proof that they are eligible to work in the United States. The employer is required to examine these documents within three business days of when the employee starts employment and determine whether they appear legitimate. These documents must be retained for three years after the date of hire, or one year following the termination of employment.
How did COVID-19 Change the Form I-9 Process?
During the peak of the COVID-19 Pandemic, remote work increased throughout the United States. While the Form I-9 had always required employers to examine documents in person, these rules were temporarily relaxed during COVID-19 due to the increase of remote work. DHS issued guidance that employers who “work exclusively in a remote setting” were temporarily exempt from the in-person physical examination requirement of the Form I-9. Documents from these employees could be examined through remote inspection (which is considered an “alternative procedure”). Employers who had employees who continued to report to work in person, however, were still required to abide by the physical examination requirement.
The guidance from DHS was initially issued early in the Pandemic and has continued to be extended, most recently through July 31, 2023. DHS has also issued guidance that employers begin to verify identification documents for employees who were hired during the Pandemic that have now transitioned to in-person work. This background is important when discussing the new proposed regulation, as the regulation considers how COVID-19 changed the American workplace.
What Will the Proposed Rule Change?
On August 18, 2022, DHS published a “Notice of Proposed Rulemaking.” Essentially, this Notice lets employers know that the agency is proposing a change to the current Form I-9 procedure. When a federal agency wants to change a regulation, the agency must post the proposed change on the Federal Register to notify the public. Then, they must allow a time period for the public to comment on the proposed rule. After the comment period, the agency will draft and publish the final rule, which will become law.
At this point, the proposed rule has concluded its comment phase. If the rule is passed as-is, it will have several effects on businesses. While the rule does not itself authorize alternative document examination processes, it would grant DHS the power to authorize these options if necessary. This change would also be reflected on the form itself by adding a box for employers to check if alternative procedures were utilized. The rule also suggests implementing fraudulent document and/or anti-discrimination training for employer representatives who use the alternative procedures.
How Small Businesses Can Ensure Compliance
Should this proposed change become law, employers would need to pay close attention to authorized alternative procedures from DHS and ensure that they are in compliance with the newest guidance. They will also need to implement any additional training that the final rule would end up requiring. Employers who allow in-person work should continue to verify documents in person. Employers who allow for remote work may continue to verify documents remotely, but they must keep in mind that this guidance may change and that they may need to do an in-person evaluation eventually. Employers should also consider doing an audit of their current Form I-9s to see if there is any employee who needs to have their documents verified in person. If necessary, employers can seek guidance from an attorney as to whether their Form I-9 practices are in compliance with the current DHS guidance.
Most of the time when an entrepreneur or a small business owner thinks about hiring employees, the last thing that comes to their mind is immigration compliance. However, all employers are required by law to ensure that they only employ individuals who are legally able to work in the United States. The Form I-9 is a part of this process and employers are tasked with the responsibility of ensuring compliance with the law. For more information about the Form I-9, visit https://www.uscis.gov/.
Sources:
https://www.uscis.gov/i-9-central/form-i-9-related-news/temporary-policies-related-to-covid-19
https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-3
Photo Sources:
https://www.uscis.gov/about-us/organization/uscis-signature
https://www.uscis.gov/sites/default/files/document/forms/i-9-paper-version.pdf
https://fitsmallbusiness.com/i-9-form/
https://www.thf.cpa/2021/02/10/audit-vs-review-vs-internal-controls-assessment/
Abigail,
You did a splendid job on explaining the Form I-9. It was easy to read and everything was clearly understandable. I especially like that you integrated current exceptional circumstances which were cased by the Covid-19 to your article. This article must be a great help for small business owners who are planning to hire their employees. Great job!
Abigail,
This was a very informative and interesting blog post. I had never heard of Form I-9 before reading your blog post, and I thought you did a great job of simplifying a complex topic and making it very easy to read. In your introduction paragraph, you did a very good job of outlining each topic you were going to discuss in the blog post which made it easier to follow along. I also believe you did well in explaining how the pandemic changed the Form I-9 process. Overall, great job.
Great job! You did a phenomenal job laying out the who, what, when, where, how, and why. I found the information to be easily digestible, explained in layman terms, and I have better understanding of the future of I-9s after reading this article. I didn’t know that covid changed the I-9 process. Great job brining awareness to something most wouldn’t even think of. Overall great job.