This year, a new Form I-9 for 2023 will be launched, with revised processes and fewer pages. Once the form is in place, employers typically have 90 days to use it in a compliant fashion. When the new procedures are approved, Immigration Control and Enforcement (ICE) will issue an official timeline. Due to a recent increase in fines, compliance is especially important. The current Form I-9 has been extended indefinitely until The changes are implemented, despite their expiration date of October 31, 2022. Employers should become familiar with the 2023 Form I-9 changes.
Penalties range from $252 to $2,507 for a first offense and significant violations or unfixed technical errors on Form I-9. This has increased from the earlier $237 to $2,360. The following list will assist employers in better preparing for future changes and ensuring compliance.
Section 2 of the Form I-9 Permanent Remote Process
One of the upcoming changes is the possibility of a permanent remote process for Section 2 completion to replace the temporary one introduced during the COVID-19 pandemic. This process could include the use of E-Verify. The current remote completion procedure has been extended until July 2023. This modification would be permanent.
Last August, a proposed rule for remote completion was introduced with a 60-day comment period and was well received by employers. This new rule would allow ICE to not only extend these flexibilities but also to provide alternative options or run a pilot program to build an alternative remote option for employers.
DHS indicated in the Notice of Proposed Rulemaking that the I-9 would include a check box for employers to indicate on that particular I-9 that they used remote Section 2 procedures. This would allow ICE’s audit procedures to be adjusted to account for the process. Additionally, DHS notes that for employers who use alternative remote methods, mandatory training to address fraudulent documentation and Anti-discrimination training may be in play.
It is also worth noting that the procedure may eventually be limited to specific employers who have registered with and use E-Verify in a compliant manner and that employers who have recently had unfavorable audits or have otherwise had penalties levied against them for noncompliance may be barred from participating.
Form I-9 Sections 1 and 2 Simplified
Other changes could include shortening or simplifying Form I-9 so that Sections 1 and 2 appear on the same page, and Section 3 becoming a supplement only used in cases such as rehire or expired work authorization.
The use of N/A in blank fields is required
ICE proposes eliminating the requirement to enter N/A in blank fields. Employers would no longer have to use N/A in place of every blank space, saving them a lot of time.
Moving ahead on Form I-9 Compliance
Employers should be aware that new processes can cause confusion, which, when combined with higher penalties, can be extremely painful.
Employers should take the following steps to ensure that they are making their best “good faith” effort to comply:
- Create an SOP manual for their I-9 processes to ensure continuity in the wake of employee attrition and to show ICE auditors that the employer has a solid and orderly plan for I-9 completion and storage.
- Conduct some kind of annual self-audit—while a full annual audit may be impractical, a spot check to identify training opportunities can be extremely beneficial.
- Include annual I-9 training for those who are required to complete Form I-9.
