The COVID-19 pandemic required many adjustments to the workplace to meet the new world’s demands. Before the shutdown in March 2020, remote work was seen as a benefit for only a few employees and onsite work was the default. However, this quickly changed during pandemic lockdowns and stay-at-home orders. Excluding essential workers, many employees began working remotely and have continued to do so now permanently or on a hybrid model. Employers of remote workers are still required to verify the identity and employment eligibility of all new hires, and until the pandemic had to do so with a physical document inspection. Fortunately, the Department of Homeland Security (DHS) has been taking baby steps in 2023 to evolve this compliance process and assist employers in this new remote world.
On May 5, 2023, Immigration and Customs Enforcement announced the end date of July 31, 2023, for the COVID-19 temporary flexibilities for Form I-9, Employment Eligibility Verification. During the pandemic, many employers operating remotely relied on the remote verification option flexibility to hire new employees and complete the I-9 requirements. Thus, with the end in sight, a grace period up to August 30, 2023, was given for employers to complete in-person physical document inspections for employees whose identity and work authorization documents were inspected remotely from March 20, 2020, to July 31, 2023.
While employers rushed to comply with the in-person physical document inspections, two revisions to the employment verification process occurred on August 1, 2023:
- USCIS published a new edition and revised Form I-9. The new Form I-9 has been reformatted to include Sections 1 and 2 in a one-page form and moved other fields and sections as supplements, including Section 3, Reverification and Rehire.
- ICE published a final rule creating an alternative option to the in-person document examination by allowing for remote document inspection to certain employers participating in E-Verify. The new Form I-9 complements the new alternative procedure for remote document inspection, as it includes a checkbox for employers to mark that they used the optional remote I-9 verification process.
The COVID-19 flexibility to defer in-person inspection of documents was not limited to E-Verify-participating employers because it was only meant to be temporary. The final rule has now created a permanent optional remote I-9 verification process for E-Verify participants who are in good standing. To be E-Verify participants in good standing, the rule states that the employer must utilize E-Verify concerning all hiring sites in the United States, use E-Verify to confirm the employment eligibility of newly hired employees in the United States, and comply with all other requirements of the E-Verify program.
Further changes are in the development process for E-Verify. Currently, employers participating in E-Verify must complete Form I-9s for each employee in addition to subsequently transferring that information into the E-Verify system. The employer alone bears the burden of accuracy. Any mismatch between the Form I-9 and E-Verify requires the employer to initiate a resolution process. Failure or delays to follow the resolution process steps, including delivering a Further Action Notice to employees, can result in incorrect employment eligibility confirmations that end in the termination of the employee. Given the complexity of the current system, DHS wants to modernize the program. Thus, on June 29, 2023, USCIS provided a 60-day Notice and Request for comment on the new E-Verify Program known as “E-Verify Next Gen”.
E-Verify NextGen will integrate and streamline Form I-9 and the verification process for employees and employers. Specifically, it is expected to have the following benefits:
- Employees will be able to create their own accounts to enter their information and documents. This will grant employees more privacy and security for their personal identifying information while improving efficiency and reducing data entry errors.
- Employees will receive direct notification of employment status. If further action is needed by the employee, the system will include the next steps to follow in a secure and private setting. Employers will receive notifications of any mismatch but will not have to act as a middleman to initiate a resolution process and potentially delay the employment verification confirmation.
- Employees can transfer the verification status to new employers.
- Once the employee receives confirmation of the employment verification, the employer can perform the in-person (or remote, if a qualifying employer) examination of the identity and employment authorization documents.
- After the employer has completed the verification of the documentation, the submitted information will create a completed Form I-9 for the employer to download and retain.
- Employers can manage all cases, standard or NextGen E-Verify cases, in one place. The new system should ease the onboarding process for many employees and employers and could ultimately eliminate the need to do paper-based Form I-9s.
The E-Verify program has always been viewed with dubious eyes by employers, as many see participation in the program could potentially cause audit triggers by the Social Security Administration or Department of Homeland Security. However, after three years of working with the COVID-19 flexibilities of remote Form I-9 document inspection, many employers saw the advantage of E-Verify after the final rule allowing for optional remote document inspection was published. Now with the upcoming option of NextGen, E-Verify may streamline the onboarding process and potentially, help avoid mistakes that may have caused triggers for government audits in the past.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the December 13, 2023 edition of The Legal Intelligencer© 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
