Completing Form I-9 is one of the most crucial steps in the hiring process, as it is used to verify an employee’s identity and their ability to legally work in the United States. At the same time, this is a complicated process that carries significant risk, making it necessary for employers to monitor any changes to Form I-9 compliance requirements in order to avoid fines and penalties and keep up with all government regulations.
While the Department of Homeland Security (DHS) introduced certain flexibility changes to Form I-9 compliance requirements during the COVID-19 pandemic in May 2020, there are new Form I-9 updates related to the decline of COVID-related leniency, documentation requirements, and more. Therefore, understanding how these changes affect your company and employees is critical for avoiding an audit resulting in potential penalties or complications for internal processes.
Four 2022 Changes to Form I-9 Compliance Requirements
While there has been a decrease in audits due to COVID-19 closures, employers should ensure their I-9 processes are compliant at all times. To do this effectively, you need to monitor the DHS and ICE workforce enforcement announcements for updates and revise policies regarding Form I-9 completion, storage, and maintenance.
Documentation of Employment Authorization for Certain E and L Nonimmigrant Dependent Spouses
On March 18, 2022, United States Citizenship and Immigration Services (USCIS) issued a Policy Alert titled ‘Documentation of Employment Authorization for Certain E and L Nonimmigrant Dependent Spouses.’ As of January 30, 2022, USCIS and U.S. Customs and Border Protection (CBP) began issuing Form I-94, Arrival-Departure records, with new classes of admission (COA) codes for certain E and L nonimmigrant dependent spouses who are employment-authorized based on their status.
Here is how this affects the process – the COA designations for E nonimmigrant spouses are E-1S, E-2S, E-3S, and L-2S for nonimmigrant L spouses. Forms I-94 containing these code designations are acceptable as a List C, #7 Employment Authorization Document issued by the Department of Homeland Security.
DHS To End COVID-19 Temporary Policy for Expired List B Identity Documents
The Department of Homeland Security (DHS) is ending the COVID-19 Temporary Policy for List B Identity Documents. One of the changes to Form I-9 compliance requirements is that beginning May 1, employers will no longer be able to accept expired List B documents.
This temporary policy was adopted because of difficulties with renewing documents during the COVID-19 pandemic. Now that document-issuing authorities have reopened and/or provide alternatives to in-person renewals, DHS will end this flexibility. Starting May 1, 2022, employers must only accept unexpired List B documents.
Therefore, if you received an expired List B document from an employee between May 1, 2020, and April 30, 2022, you are required to update your Forms I-9 by July 31, 2022.Use this comprehensive guide to ensure proper I-9 verification, remain compliant with the necessary regulations and avoid any potential violations or penalties.
Form I-9 Guidance for H-2B Workers Seeking to Change Employers
On January 28, DHS and the Department of Labor (DOL) published a joint temporary final rule (87 FR 4722) in the Federal Register to increase limits on FY2022 H-2B nonimmigrant visas and temporarily provide portability flexibility for H-2B workers already in the U.S., so they can begin work immediately with a new employer after an H-2B petition is received by USCIS and before it is approved.
Portability under this temporary rule only applies if:
- The new employer’s extension of stay H-2B petition is pending on January 28: The new employer may employ the H-2B worker while the extension of stay petition is pending for a period not to exceed 60 days, beginning on the employment start date on the petition or January 28 whichever date is later, or
- USCIS receives the H-2B petition during the period between January 28 and July 27, 2022: The H-2B worker is authorized to begin employment with the new employer for a period not to exceed 60 days beginning on the Received Date on Form I-797, Notice of Action, acknowledging receipt of the petition requesting an extension of stay or if the start date occurs after the I-797 Received Date, for a period up to 60 days beginning on the employment start date on the petition.
To complete Section 2, the new employer should enter under List A:
- The unexpired foreign passport information;
- Unexpired Form I-94 information; and
- In the Additional Information field, “60-Day Ext.” and the date you submitted the extension of stay H-2B petition (Form I-129, Petition for a Nonimmigrant Worker) to USCIS.
I-9 compliance flexibility policy due date is fast approaching – April 30
Due to the continued precautions related to COVID-19, DHS will extend the flexibilities in rules related to Form I-9 compliance requirements initially granted last year, until April 30.
This extension will continue to apply the guidance previously issued for employees hired on or after April 1, 2021, and work exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.
Focus on Changes to Form I-9 Compliance Requirements
The DHS recently increased the I-9 fine levels for paperwork violations and, as of January 11, 2022, the fine range is $252 to $2,507 per Form I-9. This is one of the many reasons for employers to review their Form I-9 practices and strengthen their compliance efforts.
The easiest way to make mistakes is by failing to stay up-to-date on new 2022 changes to Form I-9 compliance requirements. If unsure how to address challenging I-9 questions, you should take the guesswork out of the equation, automate Form I-9 management, and rely on experts that understand Form I-9 management and know what ICE will look for following the recent changes to Form I-9 compliance requirements.Simplify I-9 processing with an electronic I-9 solution fully integrated with E-Verify and experience the efficiency, consistency, and control that results in seamless processing of all Forms I-9.