I-9

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President-elect Trump’s announced (and rumored) Cabinet member selections confirm that immigration enforcement will be a top priority from day one. With less than two months before inauguration day, US employers should take action now to ensure they are compliant with immigration regulations, are prepared for worksite ICE (Immigration & Customs Enforcement) or DOJ (Department of Justice) raids or enforcement activity and are ready to respond to government investigations or employee complaints regarding the employment of foreign workers.

We recommend the following three steps:

1. Conduct an Internal I-9 Audit

We expect to see a significant rise in worksite inspection and I-9 audits from the incoming administration. All employers are required to verify the work authorization of all employees in the United States by completing and maintaining the Form I-9. Employers should conduct internal I-9 audits every 2-3 years to identify potential liability and make necessary corrections; conducting an internal audit with counsel is a helpful tool to protect the audit under attorney/client privilege. Immediate steps employers can take include:

  • Conduct an internal I-9 audit if one has not been completed in the past 3 years.
  • Review current protocols and conduct internal training to ensure a consistent and complaint work verification procedure and prevent future errors.
  • Review electronic platforms to ensure they are complaint with I-9 regulations and audit ready.

Continue Reading The Pre-Inauguration Playbook: Steps US Employers Should Take to Ensure Immigration Compliance as We Enter a New Era of Enforcement

New guidance from USCIS provides a new alternative, starting August 1, 2023, allowing employers that participate in E-Verify to inspect documents presented for I-9 completion remotely. This update will free qualifying employers from the burden of performing a physical verification.

To qualify, employers must be in good standing with E-Verify. This significant change in USCIS policy provide a pragmatic solution for qualifying employers, particularly those with large remote-working populations. The new guidance is also timely – as it is effective the day after USCIS’ COVID-19 flexible guidance is set to expire.Continue Reading Update: USCIS Modernizes I-9 Verification Process Allowing for Virtual Verification

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.Continue Reading Mandatory E-Verify in Florida and the End of I-9 Flexibility for Remote Workers: Major Changes to Immigration Compliance Landscape on the Horizon

Special thanks to co-authors Eunkyung Kim Shin and Alexandre Lamy.

Last month, the U.S. Department of Justice issued a new fact sheet reminding employers of how to simultaneously comply with export control regulations and avoid running afoul of anti-discrimination provisions contained in the Immigration and Nationality Act. The new fact sheet aligns with recent…

In an increasingly digital world, many employers are looking to rely less on paper and move to electronic systems. In recent years, the concept of electronic Form I-9 completion and maintenance has become an attractive option for companies looking to achieve this goal.

The U.S. Department of Homeland Security has provided some guidance relating to …

ICE Releases Guidance Relaxing I-9 Requirements For Certain Employers

The US Department of Homeland Security (DHS) has issued guidance that provides flexibility for certain employers to comply with Form I-9 requirements due to COVID-19.

Which employers does the new guidance apply to?

The relaxed requirements apply only to employers and workplaces operating remotely due to COVID-19. If there are employees physically present at a work locations, no exceptions will apply. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate on a case-by-case basis.Continue Reading UPDATE: Onboarding New Employees During the COVID-19 Pandemic ICE Releases Guidance Relaxing I-9 Requirements For Certain Employers