The Department of Homeland Security (“DHS”) announced on October 11 that employers should continue to use the current I-9 form after the October 31, 2022, expiration date.
DHS will advise when the new I-9 form is operational. They first need to publish a notice in the Federal Register. The next generation form is rumored to be shorter.
Quick I-9 Tips
As a reminder, Sheppard Mullin offers the following I-9 tips to employers:
- Avoiding Discrimination: Some I-9 situations can be very complicated including which foreign nationals have automatic extensions of their EAD work permits and who does not. When in doubt, contact experienced I-9 counsel for clarification. If an employer gets it wrong, the applicant or employee may call the U.S. Department of Justice Immigrant and Employee Rights (IER) unit and lodge a complaint. DOJ will then send the employer an informal discovery request about their I-9 practices, and request thousands of pages of documents from the company. This risk is a lot higher than the chances of an ICE audit and fine.
- Employee Gets to Select Documents: The employee gets to select which documents from List A, or List B and C they wish to present as evidence of work authorization. DOJ will come down hard on an employer that is dictating which documents the employee must present.
- Real vs. Fake Documents: These days, it is very difficult to distinguish a real document from a fake one. Unless you are 100% certain it is fake, you should accept it. There is no penalty to an employer if it subsequently turns out the employee is not work authorized as a result of fake documents that looked real. ICE does not expect employers to be document experts. In an ICE audit, the agency will simply ask you to terminate their employment. And denying employment based on an erroneous suspicion that the document is fake could cause the employee to file a complaint with DOJ.
- Expired, Lost, and Damaged Documents: The documents must be valid at the time of hire. However, employees may use a government issued receipt received after filing an application for replacement, which will be valid for work authorization for 90 days. There are also numerous other situations where an I‑797 receipt notice from USCIS will auto-extend work authorization for a period of time specified on the I-797 receipt notice or as indicated in the Federal Register and/or on the USCIS website. In the event someone needs additional time to obtain proof of work authorization, then an unpaid leave of absence is preferred over termination (and cash out PTO if they have any left). In some states, not providing an unpaid leave of absence for a reasonable period of time could be actionable.
- Retention: The USCIS rule regarding retention is confusing – three years from the date of hire, or one year after termination, whichever is later. A simpler rule to remember is to retain the I-9 throughout employment and then for at least three years after termination. As a practical matter, in the unlikely event of an I-9 audit, ICE usually only focuses on current I-9s, and in some cases goes back one year.
- I-9 Software: Purchasing a digital I-9 software system that is compliant with ICE protocols can be very helpful in minimizing I-9 completion errors. Being ICE compliant means that the software provides a complete audit trail of who touches the I-9, when, and what was done. Digital software will flag many errors at the time of completion. Please note that merely scanning a paper I-9 into an Adobe PDF will not comply with ICE requirements.
- Training: Make sure that any individual that is involved in the I-9 process has been adequately trained.
- Consult With Counsel: When you encounter any unusual I-9 issue, consult with experienced counsel to avoid creating liability.