Form I-9 Changes Effective November 1, 2022 - What Employers Need to Know

By Arturo Hernandez - McMahon Berger P.C.

September 27, 2022

As most employers know, completing Form I-9 is one of the most crucial steps in the hiring process. The federal government requires that all U.S. employers complete the form to ensure that companies are hiring people legally allowed to work in the United States. Many employers may not be aware that the Form I-9 requirements were created by the passing of the Immigration Reform and Control Act (IRCA) in 1986. Since that time, the form and the rules on how to complete it have continued to be updated every several years. Although the form is a 2-page document, currently there is a 15-page instruction booklet and over 70 pages in the regulatory manual on completing it.

On October 31, 2022, the current Form I-9 is slated to expire and undergo significant structural changes. So long as current employees have a valid Form I-9 already on file, new Form I-9s will not need to be completed for them. After October 31, 2022, however, the new form must be used for all new hires and certain rehires. Therefore, all U.S. employers should be prepared to implement the new changes, which are intended to simplify and streamline the completion process and help employers to avoid fines, penalties and other worries they regularly face regarding I-9 compliance.

As of September 27, 2022, the Department of Homeland Security (“DHS”) intends to implement the following changes after October 31, 2022:

•    Compressing Sections 1 and 2 from two pages to one page.
•    Making Section 3 (the Reverification and Rehire Supplement), a stand-alone supplemental section that can be accessed only if needed.
•    Updating the List of Acceptable Documents to include a link to List C documents on the U.S. Citizenship and Immigration Services website. Previously, some List C documents were unlisted, making this a helpful resource to employers.
•    Reducing and simplifying the form’s instructions from 15 pages to 7 pages. Online form users also will be directed to the online M-274 Handbook and I-9 Central for all other questions.
•    Removing PDF restrictions to ensure that the form can be completed on more electronic devices and systems, with the goal of reducing problems some users have had due to software issues.
 
DHS To End COVID-19 Temporary Policy for Expired List B Identity Documents

In March 2020, DHS eased its standards for in-person Form I-9 verification and decreased audits due to COVID-19 closures. As of now, DHS is continuing to extend its flexibility regarding the physical presence requirement for I-9 inspection for remote employees until October 31, 2022. After this date, DHS will require employers to verify the physical documents. Therefore, as of November 1, 2022, all NEW employees are required to have their I-9 documents verified in person; by November 3, 2022, all current employees who had their documents verified remotely must provide their documents to their employer in person. When the current employees provide their documents in person, the employer must update their Form I-9 by adding “documents physically examined” to section 2 or 3, as is applicable. Additionally, the recent Form I-9 updates make it clear that employers are no longer permitted to accept expired Form I-9 List B documents.

Form I-9 Compliance Requirements and Penalties

During an audit or investigation, Immigration and Customs Enforcement (ICE) agents or auditors may find technical or procedural violations. In that situation, an employer is given 10 business days to make corrections. For all substantive and uncorrected technical violations, an employer may receive a monetary fine, and in certain situations may face criminal prosecution. Furthermore, a federal contractor who has been found to have knowingly hired or continued to employ unauthorized workers faces potential debarment, meaning the contractor will be prevented from participating in future federal contracts and receiving other government benefits.

Monetary penalties for knowingly hiring and continuing to employ unauthorized workers range from $375 to $16,000 per violation, with repeat offenders receiving penalties at the higher end. Penalties for substantive violations range from $110 to $1,100 per violation.

DHS has also increased the fines for paperwork violations to $252 on the low end up to $2,507 per Form as of January 11, 2022. Thus, it is recommended that employers perform regular audits and correct any problems before the government gets involved. Retaining experienced counsel can help to minimize potential liability.

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