The hospitality industry has always thrived on adaptability, and the realm of compliance is no exception. Amidst the ongoing evolution of regulations, one crucial development that hoteliers need to be well-versed in is the revised Form I-9 and its revamped verification process, published by USCIS (U.S. Citizenship and Immigration Services) this summer.
A Long-Awaited Breakthrough
Since the introduction of the I-9 process in the 1980s, in-person physical verification has been required. This involves an employer representative reviewing the original I-9 documents in the presence of the employee to determine whether the documents reasonably appear to be genuine and relate to the employee. The employer representative must also attest that they have done so. However, the landscape has evolved, and COVID-19 demonstrated to the Department of Homeland Security (DHS) that a virtual option is a viable alternative for employers. As of Aug. 1, 2023, a new virtual verification process became available for qualified employers, marking a significant shift in the way we handle I-9 compliance.
To qualify for the virtual process, employers must be enrolled and maintaining “good standing” in E-Verify. Employers must also complete fraud and anti-discrimination training, be enrolled in E-Verify at all hiring locations where the virtual process is used, and use the virtual process consistently and in a non-discriminatory manner at each hiring site.
If not already enrolled in E-Verify, employers should consider whether E-Verify is a good fit for their organization. When taking this under consideration, employers must review the Memorandum of Understanding employers are required to execute with DHS so they have a firm understanding of the additional obligations and requirements that attach to E-Verify users. They should also review the E-Verify user manual and consult with their legal counsel.
For employers, the introduction of the virtual verification option holds the promise of streamlined hiring and onboarding processes. It offers an alternative to the logistical complexities of in-person verification, potentially saving time, effort, and resources. However, while this option presents opportunities, it also demands a closer look at the accompanying obligations. Unraveling Changes
The revised Form I-9 and remote verification process introduces changes that demand attention. The new Form I-9 condenses Section 1 and 2 to one page and has new supplements to replace old sections. Supplement A replaces the preparer/translator section and Supplement B replaces the reverification section. The list of acceptable documents now acknowledges that certain expired documents are acceptable, provides some receipt information, and links to I-9 Central. The new Form I-9 also reduces the amount of instructions, includes information about the new virtual process, and clarifies that optional fields can be left blank (writing “N/A” is not required).
Under the new virtual process, Section 1 can now be completed remotely. After completion and within three days of hire, the following steps must be taken:
- The new hire provides soft copies of documents (front and back if the document is two-sided).
- The employer examines documents to determine if they reasonably appear to be genuine.
- The employer conducts a live video interaction with the new hire, during which the new hire must present the same documents so the employer can ensure that the documentation reasonably appears to be genuine and relates to the individual.
- The employer completes Section 2 (or Supplement B if a re-verification) and checks the box that the alternative procedure was used.
- The employer retains copies of the documents (front and back) and Form I-9. Another important step is for employers to familiarize themselves with these changes to ensure accurate completion of the new Form I-9 and to confirm they are in “good standing.” We are still awaiting guidance on what an employer in “good standing” means, but struggling with E-Verify processes, such as failing to resolve tentative non-confirmations (TNCs) or creating and submitting E-Verify cases late, could jeopardize your standing. It’s essential to seek guidance to ensure compliance.
Due Diligence
While the virtual verification option opens exciting possibilities for employers, it’s essential to recognize that with new avenues come new responsibilities. Not all employers will find the virtual option seamlessly fitting into their operational structure. Technological readiness, security concerns, and resource availability are just a few factors that need to be considered before adopting the virtual verification process.
Employers should be prepared to fulfill obligations related to technology infrastructure, data security, and remote employee training. As companies may need to retain more documents than normal depending on their current practices, organizations must ensure they have a secure method for sending and storing these documents electronically. The transition to virtual verification requires careful planning and an investment in resources to ensure compliance with the evolving landscape of employment verification.
Besides the technical and data security considerations, employers must use the virtual process consistently and in a non-discriminatory manner at each hiring site. If the alternative procedure is offered at a hiring site, the employer must offer it consistently for all employees at that site. An employer may choose to offer the alternative procedure for remote hires only while continuing to apply physical examination procedures to all employees who work onsite or in a hybrid capacity, but the employer must be careful to avoid discriminatory practices.
Conclusion of COVID-19 Flexibilities
The hospitality industry, like others, benefited from temporary flexibilities in Form I-9 verification due to the COVID-19 pandemic. However, these concessions have reached their conclusion and employers had until Aug. 30 to do a physical inspection of documents to come into compliance. While this topic’s relevance may have waned slightly due to the deadline, it’s essential to briefly touch on it for the sake of completion.
If employers missed this deadline, it is still important to complete the physical inspection in a timely manner. U.S. Immigration and Customs Enforcement (ICE) has indicated they will not focus resources on this issue particularly if the employer can document they took good-faith steps to accomplish compliance within a reasonable period of time. Qualified employers can use the new virtual alternative procedure to accomplish physical inspection, but again, there are requirements such as having been enrolled in E-Verify during the COVID-19 flexibilities, having created a case in E-Verify for the employee, and maintaining good standing in E-Verify. An Agile Approach to Compliance
While we’ve only briefly touched on the conclusion of COVID-19 flexibilities, the recent updates are a testament to the rapidly evolving nature of compliance. In this ever-changing landscape, employers must stay agile in their approach. The introduction of the virtual option for Form I-9 verification opens new possibilities for employers, allowing them to embrace technology-driven efficiencies. However, it’s essential to carefully evaluate the practicality of this option against the backdrop of your hotel’s unique operational environment and seek legal guidance when needed.
Tips for Hiring Managers: Ensuring a Streamlined Verification Process
The new I-9 form and recent updates to the verification process are a testament to the rapidly evolving nature of compliance. To navigate these changes effectively, we recommend hoteliers consider these best practices:
- Complete the entire process on the first day of work to help avoid delays and interruptions.
- Treat rehires as new hires to prevent errors and ensure compliance.
- Updating the form for a name change is optional but can be done in Supplement B. The employee should provide evidence of the legal name change, and that documentation should be retained.
- If an employee discloses a new identity indicating he or she was unauthorized but now is authorized, employers may terminate based on honesty policy. Or, if an employee is now authorized and the employer elects to retain the employee, a new Form I-9 must be completed with the original hire date. The new form should be attached to the old form with an explanation.
