There’s a lot happening in the news. Regardless of your politics, our legislators are talking about immigration, health care, elections, and much more. It can be a challenge to keep up with it all.
For example, did you know that the U.S. Citizenship and Immigration Services (USCIS) office just released a new version of Form I-9? I didn’t know this change was coming until I was in New Orleans at the Society for Human Resource Management (SHRM) Annual Conference.
Back in 2013, Equifax Workforce Solutions helped us understand proposed changes to Form I-9. Because they were so helpful, I asked if they would give us an update and luckily Jason Fry, Sr., director of product management at Equifax Workforce Solutions said “yes”.
Jason, I know we’ve covered this before, but briefly tell readers the purpose of the Form I-9.[Fry] Form I-9 as well as the corresponding process that employers must go through, is intended to prove identity and eligibility to work in the United States.
I know that a new Form I-9 was just released. What changes were made to the Form?
[Fry] This is the second new Form I-9 to be released in the past 12 months. We reported in a previous blog post that the new version of Form I-9 was planned to include changes to allow entrepreneurs seeking to enter the country under the ‘International Entrepreneur Rule’ (aka IE Rule) to present their foreign passport and I-94 as List A documents in Section 2.
However, on July 11, a notice was published in the Federal Register regarding a delay in the effective date to the IE Rule to open it up for additional comments. This delay means that the planned updates to address the IE Rule were not included in the new version of Form I-9.
On Monday, July 17, 2017 the new Form I-9 was released and changes include:
- Revision to the instructions and update to the list of acceptable documents to include the Department of State’s Form FS-240 Consular Report of Birth Abroad to List C,
- Changes to language in the instructions related to ‘the end of’ when describing when the Form I-9 must be completed, and
- Revision to reflect the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) name change to the Immigrant and Employee Rights Section (IER) in the Department of Justice’s Civil Rights Division.
How long do employers have to implement the new Form?[Fry] The new Form was published July 17, 2017, but employers have two months to transition to the new form. Employers will have until September 17, 2017 to begin using the new version of the Form I-9. After September 17, 2017, all previous versions of Form I-9 will become invalid.
With this change taking place, is this a good time for employers to consider a Form I-9 Audit? Why or why not?[Fry] It is always a good time for employers to consider a Form I-9 audit. In fact, when auditing Forms I-9 employers should be making corrections in accordance with the law when the I-9 was completed. This means employers do not need to wait until they have transitioned to the new version of Form I-9 to begin uncovering and remediating the risk in their I-9 database.
There are several factors that make I-9 compliance more critical now than ever in the past. Employers need to make sure they have their I-9s in order to mitigate their compliance risk.
- You won’t have time to fix your I-9s when Immigration and Customs Enforcement (ICE) comes knocking on the door. Once ICE serves a Notice of Inspection (NOI) employers have as few as 3 business days to produce documents for audit.
- You definitely have risk lurking in your I-9 archive. According to an industry attorney at Jackson Lewis P.C., on average, 60 – 80 percent of paper I-9s create risk as they are either missing, incomplete, or have errors.
- If you haven’t audited your I-9 files recently, you may still be retaining Forms that are past the retention requirements. Employers will incur penalties for ALL errors, even if they should have been purged months or years ago.
- It will cost you if you don’t address those issues now. Effective August 1, 2016, penalties nearly doubled, and this new fine structure is applicable to any violations incurred after November 2, 2015.
- ICE is cracking down. Homeland Security is requesting 10,000 new ICE officials and ICE audits are expected to triple.
If an employer wants to do an audit, what are 2-3 things to consider?[Fry] The thought of performing an internal I-9 self-audit can be overwhelming. But there are three steps employers can take to help streamline the process:
- Optimize – As you are auditing your Forms I-9, purge those that have met retention requirements. This will help eliminate risk from errors on those Forms and save you and your team the unnecessary time and energy of remediating any issues for documents past the required retention date. When employers are audited they are at risk for all I-9s in their database, regardless of whether an I-9 has met retention requirements. If it’s being retained because of improper data/form retention hygiene, it is subject to an audit and equally at risk for penalties and fines.
- Prioritize – Sort and prioritize your issues to help focus resources on the most critical issues or the issues that are most easily corrected. The Department of Justice and Department of Homeland Security offered joint guidance to help employers perform an internal audit along with proper procedures for correcting errors and omissions.
- Digitize – Go green plus leverage an automated audit and remediation solution that efficiently and thoroughly reviews your entire I-9 archive for issues, providing simple tools to guide your employees through the correction process while delivering a comprehensive electronic audit trail. And be sure to implement a compliant electronic I-9 management system moving forward so you aren’t creating new risk every time you hire a new employee!
My thanks to Jason and Equifax Workforce Solutions for keeping us current on this issue. If you want to learn more about the updates to Form I-9, be sure to check out the Equifax Workforce Solutions blog.
As human resources professionals, I know we spend a lot of time focused on hiring, engaging, and retaining the best talent. Compliance changes, like the ones proposed on Form I-9, can seem like a pesky fly at a summer picnic. But sending the message to our employees that the organization makes staying complaint a priority is a good thing, which sends a positive message that employees can be proud of.