Spring has Sprung: 7 Form I-9 Takeaways from AILA's Spring Conference

USCIS Announces Multiple Noteworthy Changes for Employers

On April 27-28, 2023, the American Immigration Lawyers Association held its annual spring meeting, cordially referred to as the "regulatory roundup." Representatives of many agencies - including US Citizenship and Immigration Services (USCIS), the Department of Justice's Immigrant and Employee Rights Section (DOJ-IER), and US Customs and Border Protection (CBP) - spoke on the status of current initiatives and preview upcoming initiatives and announcements. Below, please find key takeaways for employers:

    • Form I-9 COVID-19 Flexibilities will not be extended further and will expire July 31, 2023. BIG has posted guidance here on this issue, and the official USCIS guidance is available here. USCIS has also posted suggested methods of updating these Forms I-9, and ICE has announced that employers will have until August 30, 2023 to conduct an in-person, physical inspection of documents. The original ICE guidance can be found here, while BIG's most recent update can be found here.

    • The new version of Form I-9 is unlikely to be published before July, 2023. As you know, the current version of the Form I-9 expired on October 31, 2022 and USCIS has instructed practitioners to continue using that version until further notice.

    • DOJ-IER is increasing headcount and investigations. DOJ-IER is looking to hire additional attorneys and has signaled an intent to open more investigations that closely scrutinize the use of electronic tools in hiring and Form I-9 completion for possible discriminatory impact. Organizations are encouraged to work with counsel to vet and examine current policies and products for discriminatory intent.

    • Mobile Driver's Licenses are not acceptable for Form I-9 purposes. USCIS went so far as to say such documents are "unequivocally unacceptable" for Form I-9 purposes due to security concerns.

    • Virtual Form I-9 completion is coming. USCIS announced that the final rule allowing for permanent virtual Form I-9 completion is in the last stages of review and should be announced in the coming months. There are very few details on this exciting development, but rest assured BIG will be at the forefront of this revolution.

    • USCIS will begin holding "listening sessions" on updating the List of Acceptable Documents (LOAD). As many of you know, the LOAD contained on page three of Form I-9 and listed on the USCIS website contains a mere fraction of the universe of acceptable document combinations for Form I-9 purposes. This has been an issue AILA has raised multiple times with USCIS, and the planned "listening sessions" are the most concrete action USCIS has taken in response.

  • CBP will update electronic Forms I-94 to show the petitioning employer where appropriate. Form I-9 requires employers to accept any valid Form I-94 showing work authorization or risk a DOJ-IER violation. Employers of certain employees, such as H-1B, E, or L visaholders (to name a few) must confirm that they have filed a Form I-129 on behalf of that individual during the Form I-9 process. Once of the acceptable version of the Form I-94, the electronic printout from the CBP website do not list the employer, creating a possible compliance gap. This change would close that gap. CBP did not give a timetable on when the change would be made, citing competing humanitarian obligations, but BIG will make an announcement as soon as one is released.

If you have any additional questions, please contact your sales executive, account manager, or our customer service team.

Posted: May 31, 2023

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This document and/or presentation is provided as a service to our customers. Its contents are designed solely for informational purposes, and should not be inferred or understood as legal advice or binding case law, nor shared with any third parties. Persons in need of legal assistance should seek the advice of competent legal counsel. Although care has been taken in preparation of these materials, we cannot guarantee the accuracy, currency or completeness of the information contained within it. Anyone using this information does so at his or her own risk.

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