DHS proposes Form I-9 overhaul and extends pandemic-related compliance flexibilities

The Department of Homeland Security is proposing an overhaul of its Employment Eligibility Verification form a/k/a Form I-9. This form is used by employers to verify the identity and employment authorization of every employee hired in the United States, regardless of citizenship. According to the Bureau of Labor Statistics, 78 million people were hired over the past twelve months, so any changes to Form I-9 will affect millions of employers and employees alike.

DHS is proposing the following changes to Form I-9 before the current version expires October 31, 2022. The public is invited to submit comments about the proposed revisions until May 31, 2022.

• Compress Sections 1 and 2 from two pages to one page to reduce paper use and storage burden on employers. Section 1 (Information and Attestation) is completed by the employee. Section 2 (Review and Verification) is completed by the employer or its authorized representative.
• Change Section 3 (Reverification and Rehires) to a supplement that provides three separate areas to enter reverifications and rehires within 3 years of the date of the initial execution of an employee's Form I-9. Employers would only print and use the supplement as needed, further reducing paper use and storage burdens on employers.
• Update the List of Acceptable Documents to include a link to List C documents issued by DHS and acceptable receipts that may be presented in lieu of a listed document for a temporary period.
• Reduce and simplify the instructions from 15 pages to 7 pages, further reducing paper usage.
• Remove electronic PDF enhancements to ensure that it can be completed on all electronic devices and is not software dependent.

DHS also extended the pandemic-related Form I-9 flexibilities until October 31, 2022. Per the initial flexibility announcement in March 2020, the requirement that employers inspect employees’ Form I-9 identity and employment eligibility documentation in-person applies only to those employees who physically report to work at a company location on any regular, consistent or predictable basis. An employee working exclusively in a remote setting due to COVID-19 are temporarily exempt from the physical inspection requirements 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.

The broad use of Form I-9 means that any changes will affect all employers. Though transitioning to a new Form I-9 should not be too disruptive, employers need to recognize that confusion and error typically accompany change. Since the failure to ensure proper Form I-9 procedures may expose an employer to civil and possibly criminal penalties, steps must be taken to ensure a smooth and effective transition to the new Form I-9. Employers also need employment practices liability insurance (EPLI) to protect against the uncertainty that accompanies the enactment of any new law.

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