December 16, 2022

Tips for I-9 Compliance in the New Year

The approach of a new year always presents a great opportunity for employers to review and, as necessary, revise existing policies and practices. Immigration documentation in the workplace has seen some significant changes over the past year with further developments expected in 2023. Below are a few key tips to help you remain complaint in the new year.

Always use the most current form I-9. As discussed here, employers may continue using the current Form I-9 even though its expiration date was October 31, 2022. According to the Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE), a new version of the Form I-9 will be published via Federal Register notice which is expected sometime in early 2023. The new form proposes significant changes including combining Section 1 and 2 onto a single page in an effort to reduce paper use and streamlined AI scanning to reduce errors. Updates to Section 3 are anticipated to include a ‘use as needed’ designation for rehires, name changes and updating.

Utilize USCIS resources to help avoid errors. The ICE website contains several employer-focused resources that can assist in reducing errors and provide guidance. In addition to helpful FAQs, ICE has also updated its I-9 Inspection Process Flowchart. The chart provides useful details on various Notices (e.g., Notices of Suspect Documents, Notices of Discrepancies and Notice of Technical Procedures/Failures).

Be mindful of temporary “flexible” COVID-associated remote document inspection rules. As discussed here, ICE has repeatedly extended its temporary “flexible” rules since the onset of the COVID-19 pandemic. While employers are currently allowed to operate under the flexible rules, it is important to keep in mind that in-person inspection is required once the employee stops working remotely and begins to report – on a regular, consistent or predictable basis – to the physical worksite. Relaxed rules are in place until July 31, 2023 unless extended or adopted permanently.