It’s that time of year again! With January and February being the busiest hiring months, we want to take this moment to remind all you employers out there of the importance of Form I-9 compliance. Not only is employer liability for incomplete, incorrect, or missing I-9s an integral part of the law (yes, even with remote workforce levels at a historic high), but so is employer liability for discriminatory job postings and/or hiring practices.
Even though there’s some evidence of a recent decline in issuance of new USICE I-9 audit notices, the IER agency responsible for enforcing anti-discrimination rules is still spending 80% of its time on I-9 related violations, due mainly to employers rejecting valid work authorization documents, or demanding to see specific documents. Both of those practices are easily avoidable I-9 mistakes, which should be reviewed with your HR teams regularly.
So, while your talent acquisition team is out recruiting, be sure to remind them to:
- Avoid language that asks for or allows for employment-based visa sponsorship. The IER has ruled that such language has a chilling effect on potential U.S. worker applicants.
- Carefully review all default settings in job board postings, as some systems will automatically insert language that the IER views as “discriminatory”.
- Assume that anything posted online will live forever and be viewed by the IER.
- Remember that, if a prospective employee says they will not require immigration sponsorship now or in the future, you cannot go digging for further information about the source of their immigration status or U.S. work authorization. You have to accept what they tell you and deal with it later, if it turns out the applicant is confused or lying.
Employers and their legal counsel need to carefully assess whether there are any restrictive options as to immigration status tied to the process required for the job posting and hiring practices. We are always happy to help review that with you.
If your company, like so many others, is looking to hire truly remote workers, you’ll be glad to hear that the temporary rule allowing for virtual I-9 document review and verification has been extended through July 31st, 2023! Multiple government agencies are proposing and discussing permanent virtual I-9 options, and there’s a chance that we all may see a final rule on that yet this year. Keep in mind that there will likely be an implementation period once we have the final rule, but we’ll keep you updated with the details on that as we get them.
Don’t worry about that outdated (10-31-2022) edition date on the Form I-9 either. A new edition is in the works, but for now you can still use the same one you’ve been using.
In the meantime, if you haven’t already physically re-inspected and re-verified your remote (or in-house) employees’ I-9 documents, which you temporarily inspected virtually during COVID, be sure to get on that now.
And, as always, if you have any questions about whether you need to reinspect/reverify I-9s for specific groups of employees, or just need a quick I-9 refresher training course, as your U.S. Immigration Business Partners, AMS Global is always here to help.
Rebecca Phyle Schantz
Immigration Attorney
