What Talent Leaders Need to Know about Form I-9 Changes

Interview with: Chapelle Ryon, Chief Executive Officer, WorkBright

"Form I-9 has been modernised and the instructions for employers are shorter, but there are still certain areas that are error prone and confusing for employers," said Chapelle Ryon, Chief Executive Officer, WorkBright.

WorkBright was a service provider at the Marcus Evans Talent Management Summit 2023.

Tell us about the recent Form I-9 and Department of Homeland Security (DHS) changes. How do they impact talent and HR leaders?

DHS hiked fines for all I-9 infractions last year. Employers know every new employee must fill this form within three days, and how critical accuracy is, but the recent changes have raised some new questions. Virtual reviews were allowed during Covid, but that ended in July. That caused a lot of panic as some employers had to get hundreds or even thousands of forms physically reinspected. Ten days before that deadline, they announced they were releasing a new Form I-9 that included a new version of virtual review called “alternative procedure”. This new alternative procedure would be allowed for certain employers, but that all segments that had been virtually reviewed before 8/1/2023 needed to be reinspected again. Everything had to be reconciled by the end of August.

Despite the confusion and the late notice for many employers that had already complied, this is a positive step. It is the first real modernization of the form, in acknowledgment of the changing workforce. It is simpler, Section 1 and 2 are on a single sheet, instructions were reduced to 8 pages, the acceptable documents list was revised, and it can be completed on a tablet or mobile. It has a check box to indicate when alternative review is being used. These are big changes that we've been advocating for.

What are employers likely to get wrong?

The way alternative procedures work, employees have to send ahead of the video call all the documents they will use in the virtual review. This is the first thing that employers are likely to get wrong. The document says there must be a secure method for collecting and retaining documents. It is a major concern that people will start emailing copies of their passports and driver's licences. Employers need a process to collect those documents upfront, and a secure method to store them with specifications on who can access them. Unlike before, if you choose to use alternative procedure you must retain all copies of documents and be able to produce in the event of an audit.

Another point that many employers have not understood is that they cannot pick and choose when to do E-Verify or when they can use alternative procedure. It must be done for all employees if you choose to use this method. They also ask whether they can still use physical review in-house or via an authorized representative. Yes, that is still recommended as best practice. It is still unclear how they will audit or view those alternative procedures.

Employers also ask if their virtual review during Covid-19 flexibilities is now compliant. No, they need to reconcile all those virtually reviewed I-9s. This is a big misunderstanding right now. Even if they completed a virtual review the first time, they will need another virtual review to reinspect those documents.

How can talent leaders ensure compliance and accuracy are always maintained?

This is a tricky one, and why many organizations use third party providers. If they put Form I-9 in the hands of non-trained HR representatives, then they must ensure there is a compliance team on the back-end prepared to do spot checks and annual audits. Form I-9 is burdensome for the HR team. Companies often have a large team devoted to the process to avoid any fines.

Compliance starts with having clearly defined processes, and making sure that whoever is completing the form is monitoring the documents. There are all kinds of issues that might arise, from employees not knowing how to complete the form properly, or not knowing where their passport is, missing the three-day deadline. Employers need processes to handle not only the regular workflow but also the errors that come up. There are technologies that can manage the workflow better. For example, solutions like WorkBright use OCR technology to pull document numbers instead of an employee typing in their information, which is where most errors creep in. Companies sticking to a paper world, sending emails back and forth, are setting themselves up for potential misuse of I-9 and major security concerns. On top of compliance, there are throughput issues. Form I-9 is the most burdensome new hire form and by reducing friction on completion, you can secure talent and get them to work faster. We can take form completion down to an average of 90 minutes, with no need to wait for an HR rep.

How will these changes truly impact talent recruitment and retention, especially in industries where finding talent is already difficult?

The more you can ease the burden of I-9, the better chance you have at moving your employees through the whole paperwork process and securing that talent. When it is very tough to get talent, often times people apply to multiple jobs at the same time. If they complete the paperwork before they even start their first day, they are more likely to take that job because they are all set and ready to start their first shift.

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