Five Fast Findings: Form I-9 Highlights from the Annual AILA Conference

i9Success's Associate General Counsel and Director of I-9 and E-Verify Compliance, John Mazzeo, returns from this year's AILA Conference with key Form I-9 takeaways for HR and Compliance professionals.

Remote Verification has Increased E-Verify Participation

As we all know, the Alternatives to Physical Inspection (API) rule that allows employers to complete Form I-9 through a live video interaction requires employers to (among other things) be E-Verify participants in good standing. Speaking in an open forum, the Chief of USCIS' Verification Division stated that E-Verify has onboarded 90,000 participants since the API rule went into effect and 24% of these new enrollees self-disclosed that the ability to complete Form I-9 using the API rule was the reason they signed up in the first place. The pace of registrations is a 23% increase year-over-year from 2023.

Employees Can Opt-Out of a Virtual I-9

The Department of Justice, Immigrant and Employee Rights Section reiterated that it continues to monitor employers for nondiscriminatory implementation of Virtual Form I-9 completion programs although it has not yet brought a case on such facts. Additionally, they stated that the employee has the option to opt-out of a Virtual Form I-9 if they prefer an in-person completion process. Document abuse (requiring more documents than necessary to complete Form I-9 or demanding certain documents to the exclusion of other permissible documents) remains IER's most common case.

E-Verify Plus

USCIS reported that the test group, consisting of five employers, began using E-Verify Plus on April 25. As of the panel on June 13, nearly 100 Forms I-9 had been completed and cases created and the majority of cases were immediately returned as employment authorized. As currently constituted, E-Verify Plus only supports basic functionality and has gaps - such as how to properly store Forms I-9 after they are completed. Simply put, it benefits the employee much more than the employer, and possibly increases the employer's exposure. There is still no timeline for implementing similar functionality through the E-Verify Web Services system, which is what allows i9Success to create and complete E-Verify cases on our clients' behalf.

Homeland Security Investigations (HSI) Form I-9 Audits

The Division Chief responsible for Form I-9 inspections and audits stated that nearly 300 audits were completed in the last year, which is a dramatic decrease from the Trump Administration. However, the same number of arrests were made and penalties levied because HSI is targeting those industries where labor exploitation and document fraud tend to operate and that such audits are used in "egregious" situations. This is subject to change with a different presidential administration. HSI also stated that the Pilot Program allowing for non-E-Verify participating employers to conduct virtual verifications was recently funded and guidelines would take about a year to develop.

Human Resources is a Compliance Minefield

In addition to Form I-9 and E-Verify issues, panelists also discussed the interplay between immigration statutes and onboarding, especially when foreign nationals are involved. Panelists highlighted the Meta and Apple Settlements with DOJ-IER and the pending SpaceX matter as examples of recruiting and immigration practices that may seem acceptable from an onboarding perspective, but have resulted in massive fines and penalties. This is all to say that each part of the recruiting and onboarding process must be viewed from many different angles, including the design and implementation of any immigration program.

Posted: June 18, 2024

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This document and/or presentation is provided as a service to our customers. Its contents are designed solely for informational purposes, and should not be inferred or understood as legal advice or binding case law, nor shared with any third parties. Persons in need of legal assistance should seek the advice of competent legal counsel. Although care has been taken in preparation of these materials, we cannot guarantee the accuracy, currency or completeness of the information contained within it. Anyone using this information does so at his or her own risk.

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