This year, a new Form I-9 for 2023 is expected to be introduced with updated processes and fewer pages. Once the new processes are approved The Department of Homeland Security (DHS) will publish a notice through the Federal Registrar as the new version becomes available and USCIS will issue timelines for its use. Compliance is particularly important due to the recent increase in Form I-9 fines. Until the new form arrives, the current Form I-9 has been extended, despite the expiration date of October 31, 2022.
1. Permanent Remote Process for Section 2 Verification
On October 26, 2021, USCIS published a notice in the Federal Register seeking input from the public regarding I-9 document examination practices. A vast majority of the comments collected supported a remote I-9 document verification option, which can help to alleviate burdens on both employers and their employees. An additional comment period was conducted in August, 2022 for proposed rule-making regarding Section 2 verification. The proposed rule change includes a permanent remote process for completing Section 2, replacing the temporary one introduced during the COVID-19 pandemic.This method could involve the use of E-Verify or another process to be announced. The current flexibilities for remote I-9 verification has been extended through July 2023, and this potential change could establish a permanent one.
The proposed rules would allow DHSto not only extend these flexibilities, but alternatives may be implemented through a pilot program, for some or all employers (or authorized representatives acting on an employer's behalf). In the Notice of Proposed Rulemaking, DHS indicated that the I-9 would include a check box for employers to indicate that they used remote Section 2 procedures.. This may also allow for an adjustment to I-9 audit procedures used by Immigration and Customs Enforcement (ICE).. Additionally, mandatory training may be required to address fraudulent documentation and anti-discrimination practices for employers who use the alternative remote options.
It is important to note that the procedure may ultimately be limited to specific employers who are registered with and use E-Verify. Employers who have had recent unfavorable outcomes as a result of a failed I-9 audit,or may have otherwise had penalties levied against them for non-compliance related to Form I-9 could be excluded from participating.
2. Simplifying Sections 1 and 2
Additional changes to the new Form I-9 may include shortening the form so Sections 1 and 2 appear on the same page, and Section 3 may become a supplement only used for rehires or reverifications.
3. Requirement of N/A in Empty Fields
DHS is proposing the removal of the requirement to supply the N/A in empty fields. This means employers no longer need to use N/A in place of every blank space.
It is essential for employers to familiarize themselves with these 2023 Form I-9 changes to avoid lengthy audits and potential penalties. Currently, penalties for a first offense or administrative Form I-9 errors range from $272 to $2,701..
Employers should be aware that new processes can cause confusion, which coupled with higher penalties can be very painful. To ensure compliance, employers should create standard operating procedures and best practices for their I-9 processes, conduct some sort of annual self-audit to identify training opportunities, and incorporate some sort of annual I-9 training for those who are asked to complete Form I-9. While the form itself may not change often circumstances surrounding it may, like new enforcement positions and regulatory requirements.
Employers can lean on Clear I-9’ s trusted I-9 compliance experts to learn how to get a head start on complying with potential changes or improving their organization's overall I-9 management process.
