New Year.  New You.  New Form . . .  sort of.  By now, employers are aware of the revised and released Form I-9, Employment Eligibility Verification (August 2023).  The grace period for implementation has expired and the revised form is in full effect.  Those of us around in the early years (1986) remember the days of the single page form, that caused great angst for the practitioner – if we mess up, we have to share the news with the employee and complete the form again.  My oh my, have we come a long way.  Again, sort of.  The revised form is now four (4) pages, with only the 1^st page requiring completion for the vast majority of new hires.  And here comes technology to the rescue . . .  sort of.

With the advances in technology, many employers have opted use a payroll platform or other SaaS to complete the Form I-9.  All is well and good, but be sure to read the fine print of the Handbook for Employers, M-274.  There are a few clarifications that you most certainly want to be aware of and ensure that, as an employer, with the ultimate responsibility, you are remain compliant. 

1. Not Applicable (N/A) – This was the standard and expected response for not entering data within a required field. This is no more, a void of data, is a blank.  “Employees who have no apartment number may leave this field blank.”
2. Social Security Number – This entry used to be optional and employees may have previously exercised their right to not complete this field, well, it is a little less optional, especially if your employer is a federal contractor or subscribes to a payroll services/SaaS that subscribes to e-verify. This is almost always the case if the employer participates in co-employment PEO (professional employer organization) relationship. “Employees may voluntarily provide their Social Security number or leave this field blank. However, if you are enrolled in E-Verify, your employees must provide their Social Security number.”

3. Employee Document Retention – How, where and when employee documents are retained remain an important step in the verification process. Provided below is a small excerpt from the published guidance.

4.1 Retaining Copies of Documents Your Employee Presents

You may make copies (or electronic images) of the documentation you reviewed, but must return original documentation to the employee. If you make copies, they should be made consistently for all new hires and reverified employees, regardless of national origin, citizenship, or immigration status, or you may violate anti-discrimination laws.

 Employers participating in E-Verify are required to retain a copy of certain documents if the employee chooses to present them. These documents include the U.S. Passport, passport card, Permanent Resident Card (also called a Green Card), or Employment Authorization Document (EAD). If you are an E-Verify employer who chooses to copy documentation other than those you are required to copy for E-Verify, you should apply this policy consistently with respect to Form I-9 completion for all employees.

 If you choose to remotely examine employees’ documents, you must retain clear and legible copies of the front and back (if two-sided) of ALL Form I-9 documentation an employee presents remotely with the employee’s Form I-9. For further guidance on remotely examining documents, please see Section 4.5, Remote Document Examination (Optional Alternative Procedure to Physical Document Examination), I-9 Central and E-Verify.gov.

You must always complete Section 2 by reviewing original documentation, even if you copy an employee’s document(s) after reviewing the documentation. You are still responsible for completing and retaining Form I-9.

You must retain copies and present them with Forms I-9 in case of an inspection by DHS, the Department of Labor or the Department of Justice.

4. Retaining the Form I-9 – If you blow past bullets 1 through 3, STOP here. This is the must-read section.  The requirement for retaining the Form I-9s are explicit and not performing this process could lead to non-compliance.  Specifically, we wanted to emphasize language from Section 10.1, Form I-9 and Storage Systems of the Handbook for Employers, M-274.

Using an Electronic Storage System for Form I-9

 You may retain Form I-9 using either a paper or electronic system, or a combination of both. If you complete a paper Form I-9, you may scan and upload the original signed form, correction or update, and retain it electronically. You may destroy the original paper form after you have securely stored it in an electronic format. Any electronic system you use to generate Form I-9 or retain completed Forms I-9 must include:

• Reasonable controls to ensure the system’s integrity, accuracy, and reliability;
• Reasonable controls designed to prevent and detect the unauthorized or accidental creation of, addition to, alteration of, deletion of, or deterioration of an electronically completed or stored Form I-9, including the electronic signature, if used;
• An inspection and quality assurance program that regularly evaluates the system and includes periodic checks of electronically stored Form I-9, including the electronic signature, if used;
• An indexing system that allows users to identify and retrieve records maintained in the system; and
• The ability to reproduce legible and readable paper copies.

If you choose to complete or retain Form I-9 electronically, you may use one or more electronic generation or storage systems, as long as any Form I-9 retained in the system remains fully accessible and meets the regulations. You may change systems as long as each electronic system used meets regulatory performance requirements. For each electronic system used, you must maintain and make available upon request complete descriptions of:

• The system, including all procedures relating to its use; and
• The indexing system that identifies and retrieves relevant documents and records. You do not need to maintain separate indexing databases for each system if you can achieve comparable results without doing so.

Employers have the option to print the M-274 and keep it for reference, the website indicates updates may occur.  Our recommendation is to bookmark the link provided and check back periodically for changes.  The current guidance was last refreshed July 28, 2023.  

In closing, the utilization of standard naming conventions and documented retention processes is a requirement.  If, after a quick review of your Form I-9s, you realize there may be some gaps or challenges with compliance, don’t panic.  The program and processes are fixable.  Our recommendation is to reach out to a professional, whether that be SeeKing HR or your employment attorney for guidance on next steps. Doing nothing isn’t the answer; and doing too much too quickly may make the situation worse.  A methodical approach towards compliance using clear and concise communication and a documented timeline of discovery and resolution will help dramatically mitigate the risk. Our motto for Form I-9 resolution - Discover. Develop. Deliver.

Disclaimers

The numbered items in this narrative were not intended to be inclusive of all changes.  Items where highlighted based on relevancy for a daily practitioner (AKA Signature of Employer or Authorized Representative)

Some word and/or sections were been bolded, italicized and underlined for emphasis and may be formatted differently in the approved guidance.