Completing the Form I-9 in 2022? Here’s what you need to know.
With roughly 11 million job openings and 7 million people looking for work in the US, human resource professionals can look forward to another frenetic hiring season in 2022, filled with the typical (and predictable) onboarding challenges and demands along with the added complication of a global pandemic that refuses to go away.
And when it comes to hiring challenges and conundrums, none is more acute than completing the error-prone and time sensitive Form I-9 employment eligibility verification process. During the past three years, the government has implemented a significant number of new I-9 and E-Verify related policies and procedures, due in large part to COVID-19 and its varying effects on both the hiring process and the underlying documents needed to prove identity and work authorization.
At the same time, we’ve also witnessed several new immigration-related policies from the Biden administration that in some cases, make meaningful changes to how employers verify work authorization of their newly hired employees.
If you’re new to HR or would simply like a refresher, read below for my “top 10” things to know for I-9 compliance in 2022!
(1) The COVID-19 “virtual verification” policy is in effect, until at least April 30, 2022.
In December, we wrote about a (relatively) early holiday gift from the government – an extension of their highly popular “virtual verification” policy whereby employers can remotely inspect I-9 documents for employees who are working remotely due to COVID-19. Employers availing themselves of this option may continue to do so until April 30, 2022, although it’s highly possible that the government may once extend this in the future.
But remember, this is merely a “deferment” of the in-person inspection requirement. According to the current rules, employers must eventually meet up with the employee to conduct an in-person physical inspection of the employee’s documents.
Employers with remote hires can also choose to use an authorized representative to complete the I-9 – which many organizations consider a more streamlined “one and done” approach. You can read about our best practices for choosing an agent here.
(2) You can still accept identity documents that expired on or after March 1, 2020, but note that some require additional follow-up
Early on in the pandemic, many individuals faced difficulties obtaining renewed identity documents such as state driver’s licenses and state ID cards as a result of COVID-19 stay-at-home orders and DMV online renewal service restrictions. In response, the government relaxed the typical “no expired document” rule and announced that employers can accept expired List B documents with an expiration date after March 1, 2020 so long as the issuing (e.g. the state) has formally extended the expiration date.
In these situations, employers can complete the Form I-9, enter “COVID-19 EXT” in the Additional Information Field, and submit to E-Verify (if applicable). No further follow-up required.
And for states and issuing authorities that have NOT extended the expiration date, employers can still accept a List B document set to expire on or after March 1, 2020, but the document should be treated as a receipt (which must eventually be updated). For more information, check out my blog from last year where I discussed the COVID-19 temporary List B rules.
(3) Employers can now accept alternate replacements for lost, stolen, or damaged documents
Speaking of receipts, the USCIS recently published an update to its Form I-9 receipt policy when an employee presents a receipt for a lost, stolen, or damaged document. Under the new guidance, employers can now accept an alternate document or combination of documents in lieu of the original document for which the previously provided receipt was issued.
For example, imagine your employee provides you with a receipt for a replacement social security card. Under the regulations, you need to ensure that the employee presents the replacement document to you within 90 days of the hire date. But what do you do if the employee instead provides a different document, such as a birth certificate? Or even a US passport?
According to the government’s new guidance, you can now accept these alternate documents. They also instruct employers to complete a new Section 2, attach it to the original Form I-9, and provide a note of explanation either in the Additional Information box included on page 2 of the Form I-9 or as a separate attachment.
For more details, read our blog from last July.
(4) Some E-Verify TNC cases are still stuck with no end in sight
Last year, the government announced that E-Verify was extending the timeframe for employees to take action to resolve Social Security Administration (SSA) tentative nonconfirmations (TNCs) due to SSA office closures to the public. As a result, there are thousands of pending E-Verify cases that are essentially frozen in time.
We wrote about this phenomenon last November, including a somewhat cryptic update from the government about some of these cases moving forward. But by and large, employers will need to hold onto to these frozen TNCs for the foreseeable future, or until the local Social Security offices begin taking routine visits.
(5) There are new work authorization rules for certain non-citizen spouses
Effective November 12th, 2021, USCIS automatically extended employment authorization for foreign nationals in certain employment eligibility categories who file an application to renew their EADs. Under the new guidance, H-4, E, and L-2 dependent spouses may receive automatic extensions of their employment authorization and/or EAD for up to 180 days.
The November 12 Policy Alert also announced that E and L-2 dependent spouses are now considered employment authorized incident to status and will not be required to present an EAD (once the government makes an update to their I-94 documentation).
You can read more about these new rules in our blog here.
(6) I-9 related penalties are increasing (yet again)
In October, the Department of Homeland Security announced an increase to the civil penalties that can be assessed against employers for failing to complete their I-9s as required under the law. Pursuant to this rule, employers can be fined $237 to $2,360 for each I-9 that has a substantive or uncorrected technical violation assessed after October 18, 2021 where the associated violation occurred after November 2, 2015. We explained this rule in more detail here.
Separately, the Department of Justice just announced their inflationary adjustment on December 13, 2021 which increases the fines for unfair immigration-related employment practices (which often happen during the I-9 process) to a range of $487 to $3,901 per individual discriminated against.
(7) Employers must consider immigration-related provisions in state laws when conducting recruitment
Speaking of discrimination, there have been an increasing number of state laws that 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, as compared with federal law where “citizenship discrimination” only protects U.S. citizens, U.S. nationals, asylees, refugees, and recent lawful permanent residents.
As a result, HR will now need to carefully consider the questions they ask potential job applicants, especially with regards to immigration status and future sponsorship. And it’s not just Illinois either. I recently blogged about a very similar law in Washington state that was being used in a lawsuit against Zoom communications by a DACA employee.
(8) A new version of E-Verify will be required for electronic I-9 providers
Electronic I-9 and Web services providers must incorporate a new version of the E-Verify interface control agreement (ICA) called “version 31” no later than March 31, 2022. The v31 upgrade modifies the duplicate case checking process, adds the ability to close a case during the scan and upload step, requires users to download the Further Action Notice before referring a case, and adds a new case delay reason – “Awaiting response on case created with incorrect information.”
(9) A bad electronic I-9 system can get you into hot water
Last year, we wrote about several Department of Justice discrimination investigations that were due, in part, to an employer’s use of an improperly designed electronic I-9 system. In one case, the electronic I-9 platform improperly sent e-mails requesting updated work authorization documentation to all non-U.S. citizen employees, even when reverification was not required.
In another settlement agreement, the government noted that the company’s “reliance on an electronic human resource management system (which had electronic Form I-9 functions) contributed to the company’s discriminatory conduct.”
Employers using electronic I-9 systems need to conduct their own due diligence, preferably working with experienced immigration counsel, to ensure that their I-9 system of choice is programmed correctly and not opening them up to even greater risks from the various government agencies.
(10) The future of I-9 compliance may be changing (for the better)
Last but not least, the government is considering a bold new I-9 policy shift whereby employers would be able to remotely inspect identity and work authorization documents (without an in-person meeting) on a permanent basis, with some strings attached. To that end, the DHS solicited comments and suggestions from the public on the pros and cons of virtual verification, the lists of acceptable documents, and the use of the E-Verify program. We wrote about this interesting development last fall.
Based on the comments they’ve received (available for public viewing here), it seems that employers overwhelmingly support a permanent remote inspection process and would likely accept E-Verify participation as a requirement if needed. Many other commenters also noted that DHS should nix the “follow-up” or “secondary” in-person inspection, which is both onerous and duplicative in the grand scheme of things.
Finally, many organizations advocated for improving the entire verification process and enhancing the Lists of Acceptable Documents to reflect the many combinations and options that are not easily discoverable by employers and compliance managers alike.
As my friend and I-9 mentor, Eileen Scofield, noted: “As should be apparent, for workers and employers alike, the ease of compliance will increase compliance.” Quite right. Hopefully DHS will listen to the many great comments and suggestions, and implement changes that protect work authorized employees, while also ensuring employers are not unjustly overburdened.
Have questions about this alert or I-9/E-Verify compliance? Please drop us a line. And if you’d like to learn more about the Guardian Electronic I-9 and E-Verify system which simplifies and standardizes I-9 compliance, you can contact us here.