United States - General Immigration (2024)

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The COVID-19 pandemic required many adjustments to the workplaceto meet the new world's demands. Before the shutdown in March2020, remote work was seen as a benefit for only a few employeesand onsite work was the default. However, this quickly changedduring pandemic lockdowns and stay-at-home orders. Excludingessential workers, many employees began working remotely and havecontinued to do so now permanently or on a hybrid model. Employersof remote workers are still required to verify the identity andemployment eligibility of all new hires, and until the pandemic hadto do so with a physical document inspection. Fortunately, theDepartment of Homeland Security (DHS) has been taking baby steps in2023 to evolve this compliance process and assist employers in thisnew remote world.

On May 5, 2023, Immigration and Customs Enforcement announcedthe end date of July 31, 2023, for the COVID-19 temporaryflexibilities for Form I-9, Employment Eligibility Verification.During the pandemic, many employers operating remotely relied onthe remote verification option flexibility to hire new employeesand complete the I-9 requirements. Thus, with the end in sight, agrace period up to August 30, 2023, was given for employers tocomplete in-person physical document inspections for employeeswhose identity and work authorization documents were inspectedremotely from March 20, 2020, to July 31, 2023.

While employers rushed to comply with the in-person physicaldocument inspections, two revisions to the employment verificationprocess occurred on August 1, 2023:

1. USCIS published a new edition and revised Form I-9. The newForm I-9 has been reformatted to include Sections 1 and 2 in aone-page form and moved other fields and sections as supplements,including Section 3, Reverification and Rehire.
2. ICE published a final rule creating an alternative option tothe in-person document examination by allowing for remote documentinspection to certain employers participating in E-Verify. The newForm I-9 complements the new alternative procedure for remotedocument inspection, as it includes a checkbox for employers tomark that they used the optional remote I-9 verificationprocess.

The COVID-19 flexibility to defer in-person inspection ofdocuments was not limited to E-Verify-participating employersbecause it was only meant to be temporary. The final rule has nowcreated a permanent optional remote I-9 verification process forE-Verify participants who are in good standing. To be E-Verifyparticipants in good standing, the rule states that the employermust utilize E-Verify concerning all hiring sites in the UnitedStates, use E-Verify to confirm the employment eligibility of newlyhired employees in the United States, and comply with all otherrequirements of the E-Verify program.

Further changes are in the development process for E-Verify.Currently, employers participating in E-Verify must complete FormI-9s for each employee in addition to subsequently transferringthat information into the E-Verify system. The employer alone bearsthe burden of accuracy. Any mismatch between the Form I-9 andE-Verify requires the employer to initiate a resolution process.Failure or delays to follow the resolution process steps, includingdelivering a Further Action Notice to employees, can result inincorrect employment eligibility confirmations that end in thetermination of the employee. Given the complexity of the currentsystem, DHS wants to modernize the program. Thus, on June 29, 2023,USCIS provided a 60-day Notice and Request for comment on the newE-Verify Program known as "E-Verify Next Gen".

E-Verify NextGen will integrate and streamline Form I-9 and theverification process for employees and employers. Specifically, itis expected to have the following benefits:

• Employees will be able to create their own accounts to entertheir information and documents. This will grant employees moreprivacy and security for their personal identifying informationwhile improving efficiency and reducing data entry errors.
• Employees will receive direct notification of employmentstatus. If further action is needed by the employee, the systemwill include the next steps to follow in a secure and privatesetting. Employers will receive notifications of any mismatch butwill not have to act as a middleman to initiate a resolutionprocess and potentially delay the employment verificationconfirmation.
• Employees can transfer the verification status to newemployers.
• Once the employee receives confirmation of the employmentverification, the employer can perform the in-person (or remote, ifa qualifying employer) examination of the identity and employmentauthorization documents.
• After the employer has completed the verification of thedocumentation, the submitted information will create a completedForm I-9 for the employer to download and retain.
• Employers can manage all cases, standard or NextGen E-Verifycases, in one place. The new system should ease the onboardingprocess for many employees and employers and could ultimatelyeliminate the need to do paper-based Form I-9s.

The E-Verify program has always been viewed with dubious eyes byemployers, as many see participation in the program couldpotentially cause audit triggers by the Social SecurityAdministration or Department of Homeland Security. However, afterthree years of working with the COVID-19 flexibilities of remoteForm I-9 document inspection, many employers saw the advantage ofE-Verify after the final rule allowing for optional remote documentinspection was published. Now with the upcoming option of NextGen,E-Verify may streamline the onboarding process and potentially,help avoid mistakes that may have caused triggers for governmentaudits in the past.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circ*mstances.