Immigration
Important Information for All Employers – Especially in Florida
By Dilip Patel
We previously discussed the new Florida law, which took effect on July 1, 2023, aimed at restricting the ability of undocumented individuals to live or work in Florida. This article focuses on the I-9 Employment Verification requirements because we have received many inquiries from small employers who are not familiar with the requirements. We also include important new information about the I-9 process.
Background
Immigration law requires employees to present documentation establishing proof of identity and proof of employment authorization. Using the I-9 form, the employer attests to having physically examined those documents, and the individual attests to their citizenship or immigration status and the genuineness of the documents presented. Employers are not required to submit the executed I-9 forms, but they are required to retain copies and present them within three business days in the event of a DHS/Immigration and Customs Enforcement (ICE) audit. Employers are required to maintain copies of the I-9 form for all active employees hired after Nov. 6, 1986. For terminated employees, the form must be retained for: 1) three years after the date of hire; or 2) one year after the date of termination – whichever is later.
The most recent version of the Form I-9 (Rev. 10/21/2019) was set to expire on Oct. 31, 2022, but it remains valid through Oct. 31, 2023. A new version of the form released Aug. 1, 2023 (Rev. 8/31/2023) replaces this prior version.
The I-9 regulations have always required that the employee’s documentation be physically examined; however, in March 2020, at the onset of the Covid-19 pandemic, DHS/ICE announced that it was relaxing the physical inspection requirements for employers who had shut down their in-office operations completely due to Covid-19. This flexibility was set to expire on Oct. 31, 2022 (the same anticipated expiration date as the I-9 form); however, the flexibilities were extended through July 31, 2023. The employers that took advantage of the flexibilities and conducted I-9 verification remotely during the Covid-19 pandemic must complete the in-person inspection by the end of this month, Aug. 30, 2023, unless they are eligible to use DHS’ new alternative live video procedure explained in further detail below.
To be eligible to use the new alternative procedure, employers must have performed remote examination of an employee’s documents between March 20, 2020, and July 31, 2023; been enrolled in E-Verify at the time they completed the Form I-9 for that employee; created a case in E-Verify for that employee (except for reverification where an E-Verify query wouldn’t be necessary); and be currently enrolled in and continue to participate in E-Verify.
Federal penalties for failing to comply with employment verification requirements can result in fines of up to $2,701 per form. Florida has more penalties.
New I-9 Form
As of Aug. 1, 2023, the new I-9 form has been published, and employers are able to use either the former or updated form until Oct. 31, 2023. Starting Nov. 1, 2023, employers must utilize the updated I-9 form. The new I-9 form expires on July 31, 2026.
The new I-9 form has condensed the absolutely necessary information down from two pages to one page and added two supplemental pages that may or may not apply to the individual based on the circumstances. The Form I-9 instructions have also been reduced from 15 pages to 8 pages.
Section one of the I-9 is completed by the employee. There are formatting changes to this section on the new form but no substantive changes. The section to be completed by the preparer and/or translator was removed from the first page of the old I-9 and relocated to an addendum titled Supplement A, found on page 3 of the new form.
Section two of the I-9 is completed by the employer and covers the review and verification of the employee’s documents. Under the “additional information” section, the new I-9 form has an option to “Check here if you used an alternative procedure authorized by DHS to examine documents,” which we discuss further below.
Section three of the old I-9 form was for employers to execute if they were reverifying employees or rehiring former employees. In the new I-9 form, this section three has been relocated to Supplement B, found on page four of the new I-9 form. The I-9 reverification also inquires whether the employer utilized an alternative procedure authorized by the DHS.
Two other positive improvements include the elimination of the word “alien” to describe certain workers, which has been changed to “noncitizen,” and technology changes to allow the form to be filled out on tablets and mobile devices.
Remote Attestation
As of Aug. 1, 2023, employers are no longer able to rely on the Covid-19 flexibilities for executing the I-9 with remote workers; however, DHS/ICE has developed an alternative. On July 25, 2023, DHS published a Final Rule and Notice in the Federal Register. This rule only applies to employers that are enrolled in the E-Verify program, and the option is only available for hiring sites where E-Verify is being used. This rule allows employees to present copies of their documentation within three business days of their first day of employment, and the employer must inspect those documents over a live video followed by checking the new “Check here if you used an alternative procedure authorized by DHS to examine documents” box which is included on the new I-9 form.
Employers are not required to use the alternative procedure and can continue performing physical inspections of documents. However, if the live video option is offered, it must be offered consistently to all hires at the hiring site. A qualified employer may choose to offer the alternative procedure for remote hires only but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity, so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on a protected characteristic.
Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email [email protected]