Disclaimer: The information provided in this blog post is intended for informational and educational guidelines and purposes only. It is not to be considered as a substitute for legal employment advice that can be provided by your lawyer or immigration specialist, financial advisor, or any other qualified expert. Each employer is responsible for conducting detailed due diligence and carefully reading all directions on the DHS website related to the topic discussed in this post. Additionally, seeking input from your employment law advisors is highly recommended to ensure compliance with all relevant regulations and requirements. Remember that every situation is unique, and individual circumstances may require specific guidance from qualified professionals.
Over the last few years, many remote companies have utilized COVID-related processes for remote I-9 verifications. However, these temporary flexibilities for Form I-9, Employment Eligibility Verification, will end today, July 31, 2023. This means that employers must now perform in-person physical document inspections for new employees and those whose documents were previously verified remotely.
For fully remote companies, this may seem like a challenging task. In this blog post, we will cover suggestions on this issue and provide guidance on how to effectively re-verify your employees by August 30. However, please note the disclaimer above - this advice was gathered through reading all documentation on the DHS website, is an opinion, and is not intended as a replacement for your own due diligence or legal advice from your employment lawyers.
Background on Changes: In response to the COVID-19 pandemic, the Department of Homeland Security (DHS) had loosened the rules for I-9 verification, allowing for remote verification methods. However, as of July 31, 2023, this flexibility comes to an end. As a remote start-up, it is crucial to familiarize yourself with the recent changes in the I-9 verification processes. The temporary COVID-19 flexibilities for remote verification will end on July 31, 2023. Starting from August 1, a new version of Form I-9 will be in use, and in-person physical document inspections will be required for new employees and those verified remotely during the temporary flexibilities by August 30, 2023.
New Form I-9: Starting from August 1, 2023, a new version of Form I-9 will be in use. Newly hired employees must complete and sign Section 1 of the form no later than their first day of employment, but it can be done as soon as they accept the job offer. As for Section 2, employers or authorized representatives must complete and sign it within three business days of the employee's hire date. The completed form must be kept for record-keeping purposes. Detailed instructions on how to complete the I-9 form can be located on the DHS website.
Approaches for remote companies to in-person physical inspections: In-person physical inspections may seem like a daunting task for companies who may have determined they will stay fully remote. It is difficult to imagine meeting the expectation of completing the I-9 within the required 3-day period, while jetting around the country to your remote employees locations, in order to verify it in person, and even more so, doing re-verifications for your existing workforce.
Fear not! There is a simple approach to this that we will cover here, as well as provide guidelines on how to effectively re-verify your employees by August 30th.
Utilize Authorized Representatives (New Hires and Re-verification of Existing Employees): One solution to efficiently handle in-person I-9 verification is to designate authorized representatives to act on your behalf. These representatives can be any individual over the age of 18, other than the employee, located in the employee’s area, such as, neighbors, friends or family of the employee, personnel officers, agents, notary publics (except in CA), or members of the general public. It is important to note that in California, notaries are no longer permitted to be an authorized representative, unless they are also an active and verified Immigration Consultant.
You are not required to have a contract or other specific agreement with your authorized representative for Form I-9 purposes.
However, employers must keep in mind that anyone else who completes Section 2 or 3 of Form I-9 on the company’s behalf must carry out full Form I-9 responsibilities. Please know that all liability of incorrectly completing these forms, is carried by the company. As such, we recommend that the company share detailed internal policy and instructions for both the employee and authorized representative to ensure full I-9 compliance, and that it reviews the returned forms in detail requesting changes where any errors may be committed.
All directions for completing the Form I-9 can be located on the DHS website as well as the Handbook for Employers M-274.
The authorized representative must verify Section 2 of Form I-9 in-person, based on the new rules. It's crucial to note that employers remain liable for any violations committed by the authorized representatives they designate. (See more information below)
New Hires: Effective August 1, 2023 employers are required to use the new Form I-9 effective August 1, 2023, as well as to follow the updated in-person verification procedures for all new hires. Unless you are using E-Verify (this blog is not intended cover guidelines for employers using the service), you will no-longer be able to verify remotely. You can do so using the Utilize Authorized Representatives information above and reading through the DHS website directions for completing the Form I-9 as well as the Handbook for Employers M-274.
Re-verifying Existing Employees: By August 30, 2023, employers must complete in-person document inspections for employees hired on or after March 20, 2020, and for whom only a remote inspection was conducted. This allows employers additional time to fulfill the in-person physical document inspections.
Additional Guidance for Post COVID Flexibilities Re-verification
Who should be re-verified?
Employees who were hired on or after March 20, 2020, and/or for whom the employer has, to date, only conducted a remote inspection consistent with the flexibilities first announced in March 2020. (Note: As a practice, you should already be re-verifying any employees employment authorization documentation is or has expired, to assure they are still authorized to work. Where it comes to expired documents, Employers do not need to reverify:
U.S. citizens and noncitizen nationals;
Lawful permanent residents who presented a Form I-551, Permanent Resident or Alien Registration Receipt card for Section 2, including conditional residents; or
List B documents
More information on standard re-verifications (not related to remote covid flexibilities changes happening now) can be located here: https://www.uscis.gov/i-9-central/complete-correct-form-i-9/completing-supplement-b-reverification-and-rehires-formerly-section-3 )
How exactly do I re-verify using an authorized representative?
Conduct an audit of current I-9s before you start and identify all employees eligible for re-verification.
Ask eligible employees to locate a local person to be the authorized representative – this can be a partner, family member, neighbor or local bank notary (note, that notaries are NOT to notarize any of these documents). It is important to note that in California, notaries are no longer permitted to be an authorized representative, unless they are also an active and verified Immigration Consultant.
Provide eligible employees with specific but simple directions to share with the designated authorized representative, to assure that they are aware of exactly what they need to do.
Review and insure that all returned I-9 are verified appropriately
File all forms (original I-9s and the additional new Section 2)
Some additional guidelines for creating Directions for the Authorized Representative:
For new hires and standard re-verifications: Employer to create instructions/directions for Authorized Representative by using the instructions located on the DHS website as well as the Handbook for Employers M-274. It will be in your best interest to create an easy to read, step by step guide using this information for any person that becomes your authorized representative.
For Post COVID flexibilities re-verification due by August 30, 2023: Create an easy to read, step by step guide for any person that becomes your authorized representative including details below. In the current case of having to re-verify employees who were onboarded using COVID related remote verification the Authorized Representative will have to address as follows:
If employee has the original documents as they were presented in their original I-9, the authorized representative will need to:
Physically, and in the employee’s presence, handle and review for authenticity, the employee’s verification documents as presented in their original I-9,
Confirm that they match with the entries in the original I-9 Section 2 and
Notate in a New Section 2 document, under additional information box: Remote Inspection completed on [insert date of original inspection] COVID 19 Documents physically examined on mm/dd/yyyy By [Name of Authorized Representative]
They will then need to complete the attestation and Section 3 of the I-9 form. An example of a completed form can be located here: https://www.uscis.gov/sites/default/files/images/article-i9-central/USCIS_Physical-Inspection-Reverification_760%402x.png
Return the new Section 2 to be attached to and filed with the original I-9
If the employee DOES NOT have the original documents as they were presented in their original I-9: Authorized representative will need to:
Assure that the employee is presenting the right documents from each list as listed on DHS’s site here: https://www.uscis.gov/i-9-central/form-i-9-acceptable-documents
Physically, and in the employee’s presence, handle and review for authenticity, and assure that they match photocopies employee has of these documents
Complete the document information in the appropriate list columns in a new Section 2 and
Notate in Section 2 document, in the additional information box: Remote Inspection completed on [insert date of original inspection] COVID 19 Documents physically examined on mm/dd/yyyy By [Name of Authorized Representative]
They will then need to complete the attestation and Section 3 of the I-9 form.
Return the new section 2 to be attached to and filed with the original I-9 along with copies of the provided documents.
If your start-up is in need of assistance with creating or updating your I-9 verification policies and procedures, or if you require help with conducting I-9 re-verification for your employees, I'm here for you! Reach out to me today, and together we'll ensure your start-up's HR processes are handled with care and efficiency!
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