A New Form I-9 and a New Reason to Use E-Verify
A new edition of the Form I-9 was recently published allowing employers who are enrolled in E-Verify and in good standing to virtually inspect the identity and work authorization documents presented by new hires. The newly announced change incentivizes employers who are not otherwise required to use E-Verify by state or local law or a federal contract with the Federal Acquisition Regulation (“FAR”) E-Verify clause to voluntarily enroll in E-Verify in order to take advantage of virtual inspection.
The announcement is welcome relief in light of the temporary Form I-9 flexibilities which came to an end on July 31, 2023. Under the temporary Form I-9 flexibilities, employers with employees taking physical proximity precautions due to the COVID-19 pandemic were allowed to temporarily defer physical examination of the employees’ identity and work authorization documents and, instead, examine the documents virtually by video link, fax, or email.
Employers who took advantage of the temporary Form I-9 flexibilities have until August 30, 2023 to perform another examination of any identity and work authorization documents which have been examined only virtually to date. In light of the recent announcement, those employers who were already enrolled in E-Verify and who submitted a case in E-Verify at the time of the virtual inspection completed as part of the temporary Form I-9 flexibilities may undertake the subsequent examination of the documents virtually utilizing the new edition of the Form I-9. However, those employers who were not must undertake the subsequent examination of the documents in person rather than virtually.
Overview – What is Form I-9 and E-Verify?
Form I-9, Employment Eligibility Verification, is used to verify the identity and employment authorization of individuals hired to work in the United States. Federal law requires employers to have their new hires complete Section 1 of the Form I-9 no later than their first day of employment. Thereafter, employers must examine the identity and work authorization documents presented by their new hires and complete Section 2 of the Form I-9 within three business days of their first day of employment. If employees present temporary work authorization, employers must reverify their employment authorization via Section 3 of Form I-9.
E-Verify is a free online tool that may be used to electronically verify the identify and employment authorization information captured on the Form I-9. The purpose of E-Verify is to improve the accuracy and integrity of the employment verification process by matching employee information provided on the Form I-9 against records available from the Social Security Administration (“SSA”) and the Department of Homeland Security (“DHS”). Similar to Forms I-9, employers who utilize E-Verify must do so within three business days of the employee’s first day of employment.
E-Verify Top 5 Compliance Tips:
1. Participation in E-Verify Is Sometimes Required:
At a federal level, E-Verify is a voluntary program, except for employers with federal contracts or subcontracts that contain the FAR E-Verify clause requiring them to enroll in and use E-Verify as a condition of federal contracting. Some states and localities also have passed legislation requiring participation in E-Verify by public agencies, state contractors, private employers, or some combination thereof. By way of example, the State of Nebraska requires both public agencies and state contractors to be enrolled in E-Verify, as well as certain private employers seeking certain tax incentives under state law. Moreover, the City of Fremont, Nebraska, requires all city contractors as well as private employers within city limits to use E-Verify.
2. E-Verify for New Hires vs. Current Employees:
Employers who enroll in E-Verify should use E-Verify for all new hires as of their enrollment date. Being selective with which new hires are run through E-Verify may run afoul of anti-discrimination laws. Moreover, those employers with federal contracts or subcontracts that contain the FAR E-Verify clause must verify existing employees assigned to a covered contract; these employers also have the option of verifying their entire workforce. Employers without federal contracts or subcontracts that contain the FAR E-Verify clause may never verify existing employees. Employers who wish to stop using E-Verify should officially terminate their participation in the program.
3. Tentative Nonconfirmations (Mismatch):
Employers may not terminate, suspend, delay training, withhold or lower pay, or take any other adverse action against an employee because the employee received a Tentative Nonconfirmation (“TNC”), until the mismatch becomes a Final Nonconfirmation. A TNC occurs when information entered in E-Verify does not match DHS or SSA records but does not necessarily mean that the employee is unauthorized to work. Indeed, a TNC could mean that there is a record error on an identification document, the employee’s status has changed, or the employer did not enter information correctly into E-Verify. When a TNC is received, the employer should present the employee with the Further Action Notice generated regarding the mismatch. The employee decides whether to take action to resolve the mismatch. Only if/when a Final Nonconfirmation is generated in E-Verify may the employer terminate the employee.
While the Form I-9 must be completed for new hires as well as existing employees whose temporary work authorization has expired, the E-Verify process is used only for new hires. Employees with temporary work authorization who are subject to the Form I-9 reverification process should not be reverified in E-Verify.
As part of the E-Verify process, upon receiving an “Employment Authorized” case result, the employer should record the case number on the employee’s Form I-9 or print out the Case Details page and attach it to the Form I-9. Moreover, if the employee presents a document used as part of Photo Matching (currently the U.S. passport and passport card, Form I-551 Permanent Resident Card, and Form I-766 Employment Authorization Document), the employer must retain a photocopy of the document presented. (Other documents may be added to Photo Matching in the future.)
If you have questions regarding the new edition of the Form I-9, the remote inspection process, or E-Verify, please contact a member of Koley Jessen’s Employment Group. For further guidance on the end of Form I-9 requirement flexibility and how to manage remote inspections and subsequent physical inspections, you can also refer to the article titled "DHS Ends Form I-9 Requirement Flexibility", which discusses the changes and provides insights for those seeking compliance before the August 30 deadline.