The month of July will bring forth two notable changes to immigration compliance requirements: (i) Florida will require that all private employers with at least 25 employees use E-Verify as of July 1; and (ii) the United States Citizenship and Immigration Services (“USCIS”) will end temporary flexibilities on July 31 that permitted certain employers to complete the Form I-9 remotely without inspection of the original documents. Employers–throughout the United States–must be aware of how mandatory E-Verify will or could impact their company and how the end of remote I-9 completion will impact its remote workforce.
Mandatory E-Verify in Florida
Governor Ron DeSantis signed SB 1718 into law on May 10, with an effective date of July 1, 2023. The law expands mandatory use of E-Verify to all private employers with 25 or more employees. SB 1718 expands existing State law which requires the use of E-Verify by public employers, private employers which contract with public employers, and private employers which receive state incentives. The new law aligns Florida with other states with mandatory E-Verify requirements, including Utah, Arizona, Tennessee, Mississippi, Alabama, South Carolina, and North Carolina.
What is E-Verify?
E-Verify is an internet-based system that compares information entered by an employer from an employee’s Form I-9, Employment Eligibility Verification, against records available to the US Department of Homeland Security and the Social Security Administration to confirm employment eligibility. The program is additive to and does not replace the I-9 requirement. E-Verify is a meaningful tool that helps employers verify the work authorization of their workforce; it can also serve as evidence of good faith during government investigations relating to I-9 practices. However, employers must meet compliance requirements when using E-Verify, and noncompliance can result in fines and other civil penalties.
Requirements for private employers
The Florida law will require that all private employers with 25 or more employees register for E-Verify and utilize it for new employees hired on or after July 1, 2023. Each employer subject to the new law will be required to retain copies of the E-Verify documentation for at least three years, and will be required to verify compliance on its first return when making contributions to or reimbursing the state’s unemployment compensation or reemployment assistance program. Notably, employers who use E-Verify–whether required or not–will create a rebuttable presumption that they have not knowingly employed an unauthorized worker.
Fines and penalties
Failure to comply with the new law can result in daily fines of $1,000 if the Florida Department of Economic Opportunity determines that an employer fails to use E-Verify as required three times in any 24-month period. Moreover, a violation will result in a one-year probationary period and, if substantial noncompliance continues, can result in revocation of local business operating licenses. The effective date for enforcement of penalties is July 1, 2024.
Private employers in Florida with 25 or more employees (or which may reach that number of employees) should immediately take steps to:
- Review and sign a Memorandum of Understanding to register each worksite within the State of Florida for E-Verify;
- Identify the appropriate team members who will manage the E-Verify process;
- Train the E-Verify team to ensure they understand the logistics of E-Verify completion, the importance of timing, and how to handle a non-verification; and
- Ensure that existing employees are not run through E-Verify (rather, only new employees since the date of enrollment should be run through E-Verify).
Employers located in states without mandatory E-Verify requirements should pay close attention to potential new legislation. As noted previously, E-Verify is a helpful tool that requires consistent use and training of staff to avoid noncompliance. Employers must carefully weigh the pros and cons of enrollment in conjunction with potential requirements in the horizon.
End of I-9 Flexibilities and the Impact on Remote Workers
The US Immigration and Customs Enforcement’s (“ICE”) temporary COVID-19 flexibilities allowing employers to remotely (i.e., over video link, fax, email, etc.) review employees’ I-9 identity and employment eligibility documents ends on July 31, 2023.
On March 20, 2020, ICE initially announced a deferred timeline for employers taking COVID-19 related remote working precautions to comply with the physical Form I-9 documents inspection requirements. ICE noted that it would evaluate employers’ COVID-19 related Form I-9 completion practices on a case-by-case basis. In an updated announcement on March 31, 2021, the US Department of Homeland Security (“DHS”) and ICE provided that employers hiring remote working employees on or after April 1, 2021 due to COVID-19 related precautions are exempt from the in-person, physical inspection requirement of the employee’s identity and employment eligibility documents. Instead, within three business days of the employee’s start date, employers could review these documents over video, fax, or email, and retain copies of the documents. If the employee began working non-remotely, on a “regular, consistent, or predictable basis,” employers were then required to inspect the employee’s I-9 documentation in-person, within three business days.
On May 4, 2023, DHS and ICE announced that employers will have until August 30, 2023 to comply with the physical inspection requirements of identity and employment eligibility documents for those remote working employees hired on or after March 20, 2020, and who only received a virtual or remote examination. If, however, the affected employee(s) begin non-remote employment on a “regular, consistent, or predictable basis” before August 30, 2023, then employers must perform the in-person physical inspection of the I-9 documents within three business days of the normal non-remote employment.
DHS previously published a proposed rule on August 18, 2022 that would allow alternative procedures for examination of identity and employment eligibility documents. DHS is currently reviewing public comments and plans to issue a final rule later this year.
I-9 Employer Takeaways
Employers that have been availing themselves of the I-9 flexibilities should immediately take the following steps:
- Identify the appropriate team members or third-party agents who manage the Form I-9 completion process;
- Task the Form I-9 team members or third-party agents to take swift action to identify all remote working employees hired on or after March 20, 2022, whose identity and employment eligibility documents were virtually/remotely inspected only;
- Have the Form I-9 team members or third-party agents notify each identified affected employee of the upcoming physical documents inspection requirement; and
- Begin the physical inspection of all identified remote working employees’ identity and employment eligibility documents, making sure to complete all physical inspections no later than August 30, 2023.
Employers should keep in mind that, after July 31, 2023, they must comply with the pre-COVID physical inspection requirement of identity and employment eligibility documents for Form I-9 completion purposes for all new hires, whether working remotely or in-person.