In 1986, Congress passed the Immigration Reform and Control Act (IRCA). IRCA forbids employers from knowingly hiring individuals who do not have U.S. work authorization. To ensure that employers hire individuals with authorization to work in the U.S., IRCA introduced the Employment Eligibility Verification form, known as the Form I-9. IRCA requires all U.S. employers – no matter their size – to verify the employment eligibility of all employees by completing a Form I-9 for each employee and by maintaining and updating the Form I-9 and associated records strictly, thoroughly and in a timely manner.
In a previous article, we communicated to clients the risks of non-compliance with the letter of the law with respect to employment eligibility verification, Forms I-9 and associated record keeping. We have also advised clients to designate a person or persons within the organization to designate an I-9 Coordinator who will be trained on the law and its requirements, be responsible for ensuring strict adherence with the rules, prepare and maintain Forms I-9 and communicate with the work force to ensure that records are kept up-to-date. To review the previous advisory for Employment Eligibility Verification, click here.
As an update to the previous advisory, please note: As part of its response to the disruptions arising from the Covid-19 pandemic, ICE implemented “Flexibility Policy” with respect to the requirement of in-person inspection and verification of original documents confirming immigration status and work authorization. The Flexibility Policy applied only to employers who have employers working from home or other remote or virtual worksites. As to those employers, the Flexibility Policy authorized employers to inspect the required documents remotely via e-mail, Zoom, video link, or fax and to then obtain hard copies of the documents by mail within three business days of the commencement of employment.
Since the onset of the pandemic in March 2020, the Flexibility Policy has been extended periodically, most recently on May 4, 2023. According to the most recent pronouncement, the Flexibility Policy for inspecting and verifying documents will remain in place until July 31, 2023. In its announcement, DHS informs employers who have been using remote inspection under the Flexibility Policy to be prepared to revert to previous practices by August 30, 2023. At the same time, DHS has informed the business community that it is working on a modification to the regulations which would make permanent the “flexibility rules” permitting remote inspection and verification of employment eligibility documents. To view the DHS announcement, click here.
At the Law Office of Matthew I. Hirsch, we can answer your questions regarding the law and regulations, and we can assist your company’s I-9 coordinator to implement best practices for I-9 compliance. In the event that your company is selected for an audit or work site inspection, we can provide both legal and practical advice on how to respond. There has never been a more crucial time to ensure your company’s full and complete compliance with strict rules relating to employment eligibility verification