This is a big change impacting every U.S. business with employees. All U.S. employers must complete Form I-9 for each person they hire for employment in the United States. This includes citizens and noncitizens. What’s changing?
The U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) no longer allow virtual inspection of employment eligibility forms such as a passport or green card. All inspections must be in person, effective July 31, 2023.
There is a 30-day grace period to go back and inspect documents from your current employees. So, businesses will need to ensure that all employees’ I-9 forms have been physically inspected by August 30, 2023, regardless of whether their firms operate remotely, in a hybrid model, or in person. We’ll explain what that means for remote employees and how to proceed to keep your business compliant with the changing regulations.
The HR experts at Asure protect businesses from employment law penalties and can train your managers on I-9 compliance. Connect with an HR expert to learn more.
What Is Form I-9?
Form I-9 is employment eligibility verification. It verifies that an employee is eligible to work in the U.S. Form I-9 is also used to verify an individual’s identity by requiring the worker to provide the employer with acceptable documents as evidence of identity and employment authorization. You can find a list of acceptable documents as required by the USCIS here.
The Journey to Current Requirements
All U.S. employers are obligated to submit documentation that verifies the identity and work authorization of each person they hire through a form known as Form I-9. Employers, or their authorized representatives, have been required to physically examine the employee’s documents, such as passports or citizen ID cards, in the employee’s presence, as instructed by the U.S. Citizenship and Immigration Services (USCIS).
However, during the pandemic, as companies shifted to remote work arrangements, groups like the Society for Human Resource Management (SHRM) lobbied the government to grant flexibility in I-9 compliance. The aim was to facilitate hiring for companies responding to the pandemic’s challenges. Consequently, the Department of Homeland Security (DHS) temporarily allowed employers to inspect I-9 documents via video, fax, or email instead of requiring in-person verification.
2023 Changes and Compliance
The flexibility granted during the pandemic is set to end, with Immigration and Customs Enforcement (ICE) announcing the sunset of these allowances on July 31, 2023. HR departments will need to ensure that all employees’ I-9 forms have been physically inspected by August 30, 2023.
So, what does this mean for businesses with remote employees?
A physical inspection does not require employees to travel to company headquarters. The government has long permitted an “authorized representative” to inspect I-9 forms, enabling companies with distributed workforces to comply. The authorized representative can be any person designated by the employer to complete and sign Form I-9 on their behalf, such as a friend or family member of the employee.
However, if the documents are expired, falsified, or otherwise unacceptable forms of proof of employment eligibility in the U.S., it is the business that is ultimately liable. It’s highly recommended to audit employees’ I-9 forms to comply with the government’s regulations. Your business can make a list of whose I-9 documents need to be physically inspected and make arrangements with those employees.
The USCIS states, “An employer or an authorized representative of the employer completes Section 2. Employers or their authorized representatives must physically examine the documentation presented by the employee and sign the form.”
Don’t Risk Fines and Federal Inspections into Your Business
In our 2023 HR Survey of over 2,000 businesses, we discovered that 1 in 5 of all companies are at risk of a failed Immigration and Customs Enforcement audit because they do not train hiring managers and staff how to complete I-9s compliantly. You can download your copy of our 2023 Small Business HR Benchmark Report at no cost here.
Mary Simmons, VP of HR here at Asure, alerts employers, “Not knowing or pretending you don’t know about I-9s will not defend you in any shape or form. For example, if you’re driving down the highway and you’re going 90 MPH, and the police officer pulls you over… if you say, ‘Oops, sorry officer, I didn’t know the speed limit was 65,’ tell me whether or not he’s going to give you a ticket. For sure, you’re getting a ticket, and you’re getting a fine and, in some states, that might even put you in jail depending on how far you are over the speed limit.”
Here are the 2023 penalties for non-compliance with Form I-9:
Civil penalties for I-9 paperwork violations: $272 to $2,701
Knowingly hiring or retaining an undocumented worker – 1st offense: $676 to $5,404
Knowingly hiring or retaining an undocumented worker – 2nd offense: $5,404 to $13,508
Knowingly hiring or retaining an undocumented worker – 3rd offense: $8,106 to $27,018
Fraudulent Documentation (USC 1324c(a)((1)-(4)): $557 to $11,162
Fraudulent Documentation (USC 1324c(a)((5)-(6)): $472 to $9,413
Violation or Prohibition of indemnity bonds: $2,701
Adhering to Form I-9 rules and employment verification is required for U.S. businesses, regardless of their size or whether they are in-person, hybrid, or remote. With the end of leniency granted during the pandemic, businesses must have someone physically inspect employment eligibility forms for each employee.