Posted on Author AKC Law Categories General, Featured Updates, Business, Employment

 

The U.S. Citizenship and Immigration Services (UCIS) has published a revised version of Form I-9, Employment Eligibility Verification.

The newly announced change incentivizes employers who are not otherwise required to use E-Verify to voluntarily enroll in E-Verify to take advantage of virtual inspection. Starting November 1st, all employers must use the new Form I-9.

The updated version of Form I-9 includes the following changes:

  • Reduces Sections 1 and 2 to a single sheet;
  • Is designed to be a fillable form on tablets and mobile devices;
  • Moves the Section 1 Preparer/Translator Certification area to a separate, standalone supplement that employers can provide to employees when necessary;
  • Moves Section 3, Reverification and Rehire, to a standalone supplement that employers can print if or when rehire occurs or re-verification is required;
  • Revises the Lists of Acceptable Documents page to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation;
  • Reduces Form instructions from 15 pages to 8 pages; and • Includes a checkbox allowing employers to indicate they examined Form I-9 documentation remotely under a DHS-authorized alternative procedure rather than via physical examination.
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 electronically compares information the employer enters from the Form I-9 to records available to the Social Security Administration and the U.S. Department of Homeland Security.
This verification confirms an employee’s eligibility to work in the United States. The purpose of E-Verify is to improve the accuracy and integrity of the employment verification process. Similar to Form I-9 requirements, employers who use 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.

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 and must be applied consistently to all employees at the worksite to avoid violations 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.

4. Reverification: 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 re-verification process should not be reverified in E-Verify.

5. Retention: 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.)