[Podcast] Workshop | Navigating the I-9 Changes: Pitfalls, Compliance, and the Future

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Show notes

  1. In today’s episode, we dive deep into the world of I-9 processes and the impending changes that are set to impact the staffing and recruiting industry. Kortney Harmon, an industry principal at Crelate, is joined by Chris Thomas, an employment attorney specializing in immigration law.
    In part one of our discussion, we explore the recently released new Form I-9 and its alternative procedure. We also highlight potential pitfalls and compliance strategies that businesses need to be aware of. But that’s not all! We also touch upon the speculation and uncertainty surrounding the virtual verification for I-9 purposes, including the possibility of legal challenges and the continuation of old rules and framework.

    So, join us as we embark on this insightful journey and gain a glimpse into the future of I-9 processes. Stay tuned for part two, where we will delve even deeper into this topic and answer your burning questions in our audience AMA segment. Don’t forget to subscribe to our podcast and join us for our upcoming events.Additional Resources:

    1. Alternative Procedure: Optional Alternatives to the Physical Document Examination Associated with Employment Eligibility Verification https://www.federalregister.gov/public-inspection/2023-15532/alternative-procedure-optional-alternatives-to-the-physical-document-examination-associated-with
    2. Alternative Procedure: Optional Alternative 1 to the Physical Document Examination Associated with Employment Eligibility Verification https://www.federalregister.gov/public-inspection/2023-15533/alternative-procedure-optional-alternative-1-to-the-physical-document-examination-associated-with
    3. Introduction of a New Version of Employment Eligibility Verification Form https://www.federalregister.gov/public-inspection/2023-15667/introduction-of-a-new-version-of-employment-eligibility-verification-form
    Ogletree Deakins information:
    Telephone: 303-318-7497
    [email protected] | www.ogletree.com


Kortney Harmon [00:00:00]:

We get to the point everybody wants to know about all the other changes, the AI and all these other stuff, but they often forget these things are more crucial. They want the shiny, they want the shiny object, but they forget the hoops that they have to jump through to avoid legal ramifications and financial ramifications from that. So it’s easy to get distracted by all those things, but it really coming back to the things that foundationally you have to have done within your business. It’s negotiable. Hi. I’m Kortney Harmon, staffing and recruiting industry principal at Crelate. Over the past decade, I’ve trained thousands of frontline recruiters and have worked with hundreds of business owners and executives to help their firms and agencies grow. This is the full desk experience where we will be talking about growth blockers across your people, processes and technologies. On today’s episode, we have Chris Thomas back with us. He is so highly knowledgeable and after speaking with him, I think the first time at this point has been a month ago. Chris, we had our first live podcast, I think two weeks ago, and laws changed the day after. It was the morning after it got turned on its head. And so excited to have you back. I know again, we normally focus on growth blockers across people, processes and technologies, but again, want to be your go to webinar or podcast for things that are timely topics in our industry. So I don’t want to talk too much. Please welcome Chris. He’s an accomplished employment attorney specializing in immigration law. Today, Chris is going to shed light on those impending changes on the I Nine processes, how it’s going to impact the staffing and recruiting industry, and we’ll explore maybe key updates, potential pitfalls compliance strategies, and maybe even get a glimpse of what the future holds now that I think there is something going into the future. So without further ado, let’s dive in with this discussion with Chris. Chris, thanks so much for joining us today. I’m so excited. You are so knowledgeable and I loved our Ask Me Anything last time we talked. So I love the ability for people to ask what they have in their situation and come to you. I am so excited to have you here.

Chris Thomas [00:02:11]:

Well, thank you. It’s so good to be here with you.

Kortney Harmon [00:02:13]:

I love that. So, with that being said, I know we did this last time, but tell me a little bit about your organization, kind of what you do in our industry or how it relates to the topic that we’re talking about at hand today.

Chris Thomas [00:02:23]:

Sure. So I am an Equity shareholder at Ogletree Deacons. We’re an international law firm, 55 offices, and I am one of the co chairs of the world of immigration compliance. So we get to see all the horrifying things that happen when things go wrong and work with companies to help them avoid those horrifying things.

Kortney Harmon [00:02:42]:

I love it I feel like we should play some scary music in the background. All those horrifying things. I love it. So this is the last time we talked. I know this was a topic that you were getting multiple calls a day about. Is that still happening? Do you think people feel at ease a little bit more about the changes since the last time we talked, or is this still a pretty hot topic?

Chris Thomas [00:03:02]:

Well, we’re getting more calls because people want to know about the new regulation. I would say that it is less terrifying at this point. People are feeling as if they have more options and feel a little more comfortable about where they’re going going forward.

Kortney Harmon [00:03:14]:

I love it. So let’s talk about that. What are the updates for the inine laws that our staffing and recruiting organizations should essentially be aware of? Like, what were they? Where did we stand? Kind of foundational. And then I know as of two weeks ago, we didn’t have the new impacts of what that looked like, and now we do. So I think there’s a lot to cover just in this first question alone.

Chris Thomas [00:03:34]:

There is, and so we should give a little bit of context. When COVID hit, it became clear that company personnel could not meet directly with their employees as they were bringing them on. Most people were working remotely at the time. And so Homeland Security introduced a temporary rule which allowed people to review forms or electronic documents visually over a video conference call or by email or whatever. Say somebody produces a driver’s license, Social Security card, establish identity and employment eligibility, and then the person on the other side of the company would complete the I Nine and do it by that virtual format. That rule expired officially yesterday, July 31. But there was a 30 day grace period given to all employers for them to catch up and try to get everybody done that they had done virtually during the COVID era, which apparently is over now as of yesterday, and help them catch up with doing a fiscal review of all I Nine documents up through the end of August or August 30. And so companies were scrambling nationwide thinking, well, how are we going to get this done? How do we meet with people? Do we use the authorized, representative approach to outsource this? Do we use maybe one of those companies out there like Equifax or others that have a network of people who can complete this process for us and then suddenly, like mana from heaven two weeks ago, we ended up receiving this new regulation that essentially provided the opportunity to do these virtual verifications on an ongoing basis forever, starting August 1 today.

Kortney Harmon [00:05:08]:

So essentially, people were scrambling over the past few months and really trying to figure out, if I have 300 people out to work, what does that look like? So as they think of this, if they’ve done anything in the past for COVID. Do they have to go back and make anything up like the last conversation we had?

Chris Thomas [00:05:26]:

They still do. So we’re talking to somebody who has terrible judgment, and they ended up hiring me in the middle of COVID say, March 30 of 2020. And I was processed virtually. I showed my us. Passport or whatever I wanted to show from list A or combination of B and C documents to complete the I Nine verification process. And then I continued to work remotely ever since. And so the question became, well, what do we do as these temporary rules expire? How do we get Chris’s documentation to be properly verified in person as the law requires, as it reverts back to what those law was? And so companies were scrambling. They were thinking, well, what do we do? Chris lives in Denver, Colorado. We don’t have an office there. How are we going to take care of that? And they were working with ideas of using librarians or authorized representatives of other types, notaries et cetera, who could sit down with me as a representative of the company and review my documents physically and then update my I Nine. What’s different now is that that can be done virtually again, does have to be done. Once again, though, we don’t get to ignore the fact that this temporary rule has expired. There is a new rule. And now the approach would be that if you’re in Human Resources, Courtney, you could reach out to me and you could say, all right, Chris, we need to go through this process again. Let’s do a video conference. Why don’t you show me your documents front and back? Could you upload those documents for me? Because I need copies front and back of those documents. And then if you were enrolled in E Verify all the way through COVID, and you continue to be enrolled in E Verify today and in good standing, then you would meet all the criteria necessary to go ahead and process me remotely and do that necessary update. In the additional information box, it would just say, Alternative procedure, put the date, your name, confirming that you had, in fact, verified me on this August 1 of 2023.

Kortney Harmon [00:07:24]:

So obviously there’s still action to be required. So that’s noted first, what are the consequences? I know we said there were consequences before, if not compliant by the end of August 30, are there still any consequences or implications for employees who fail to comply with these new changes by the allotted date?

Chris Thomas [00:07:41]:

Certainly there are, right. The date, again, as we said, the deadline for all of this is going to be at the end of August 30. And there is some mildly comforting guidance out there that came out from Homeland Security just recently, saying if we see evidence that you were, in fact, involved in a good faith effort to clean up your I Nine s to get them updated, then we’re going to be in a position where you will not be an enforcement priority for us. And that’s kind of terrifying language because if you think about it, that’s not real clear guidance for anybody. What is? Good faith. So the idea is that everybody would try to have everything completely updated as we get to the point of August 30 rolling around.

Kortney Harmon [00:08:28]:

That’s scary. Okay, fair. When you’re thinking about this process and people are actively in good faith trying to do this right and employers are looking at this, are there any hidden pitfalls or challenges that employers should be cautious about when implementing this new I Nine changes and revisiting this whole process?

Chris Thomas [00:08:49]:

Certainly, yes. First of all, they need to be able to ensure that they’re checking all of the boxes. Right. New form I Nine has now been officially released and this I Nine even has alternative procedure as a box next to the additional information section. And the new I Nine is really quite spiffy by the way. It has everything on the same page now. So section one and section two appear on the same page. Section three is now gone, but it can be used still as supplement b to the four by nine. So several changes. They’re always changing the four by nine. Someday they’ll finally realize they’ve got it perfect and they won’t need to do it any further. But back to your question on what are some of the pitfalls? Well, the pitfalls are going to be that the process has to be followed exactly. So for example, if we return to the example we had and I was process three verify back in March of 2020, then you would go ahead and take one of two approaches with me. I could either show you my prior documentation and you would fill in the additional information box. Or if we get to a situation where yeah, not so clear that I have my documents, I lost them. I’ve got a new document that I’d like to present that’s okay. I can go ahead and present that new document. And you would do a section two, another section two, and then associate that section two with the previously completed sections one and two of your ini. What are the pitfalls? The pitfalls will be situations where employers push too far. For example, if they insist on specific documents, say I gave my driver’s license and Social Security card before. If somebody says, well I want to see those again and I say, I’m sorry I don’t have those anymore, but here’s my US. Passport. If somebody were to push it farther and say, no, we need the prior documents. Now you’re getting into what’s called an unfair documentary practice. And the Civil Rights Division at the Department of justice could investigate not only my case, but to see whether there’s a pattern or practice of engaging in such activity with others. Another area there will be a concern is to ensure that we’re doing this correctly, right? That we’re checking the box, that we are using the alternative procedure, that we’re doing the proper updates in the additional information section. So the list is long in ways in pitfalls that people could fall into here.

Kortney Harmon [00:11:08]:

Interesting. And I’ve never heard the word I Nine and spiffy in one sentence. So thanks for setting that precedence.

Chris Thomas [00:11:15]:

People use the word spiffy.

Kortney Harmon [00:11:17]:

I love the word spiffy, but I Nine. We get to the point everybody wants to know about all the other changes, the AI and all these other stuff, but they often forget these things are more crucial. They want the shiny, they want the shiny object, but they forget the hoops that they have to jump through to avoid legal ramifications and financial ramifications from that. So it’s easy to get distracted by all those things, but it really coming back to the things that foundationally you have to have done within your business. It’s a non negotiable.

Chris Thomas [00:11:46]:

Fair enough.

Kortney Harmon [00:11:47]:

I love it. So obviously we had talked last time about new permanent rulings. This is the permanent ruling. I would assume this is not something that is going to be changed or foreseen in the future or altered. Give me your gut feeling on that because these are not laws that are changed frequently.

Chris Thomas [00:12:05]:

Well, we hope they don’t change frequently. Everything’s possible. Who knows how all of this plays out? Some employer right, group or whatever kind of group out there could challenge this and say that Homeland Security went too far. For example, this regulation was initially thought out and presented back in August of 2022, but then it kept dragging out with a lot of internal dissent, by the way, at Homeland Security as to whether it was really possible under the current statutory scheme to do this sort of virtual verification for I Nine purposes. And so the question becomes, will somebody challenge this in court? Right now, I think every employer out there wants the virtual I Nine approach. And so I doubt that it’ll be any of the employers we deal with at least. But anything’s possible that somebody could challenge it and say they didn’t quite follow the administrative procedure accurately. And even Homeland Security did reserve the right to change the rules if it turns out that there’s a higher incidence of fraud or something starting to develop under this new regulatory scheme.

Kortney Harmon [00:13:08]:

Okay, fair enough. So as we have these offices and that have hundreds of people, maybe thousands of people working for them, if we go back to this, what steps should they take to ensure that they’re in compliance with these new Ilan laws? Is there anything step by step, what is your advice to make sure that they’re following that process?

Chris Thomas [00:13:24]:

So it’s a two tiered analysis, right? We’re talking first about going forward as of today and going forward in that situation. If you want to use this approach, it’s the alternative procedure approach as it’s phrased. So you still have the other options that you previously had. For example, you could have somebody come in on their first day of employment, meet with that person physically, they present their documentation, you review it, and you complete the I Nine within three days of the person’s first day of employment. That is still the old law, and it still continues. It’s still an option. You can also use the authorized representative approach. You could send people out if they’re remote workers, have them meet with the local librarian or whoever that person selects, and have that person complete the section Two as your authorized representative of the company and still have the physical review. So nothing’s taking away these old processes that were in place. The difference, though, is that you now have the option also going forward as of today, to complete this all virtually, it does require the following. You have to be enrolled in E Verify and be in good standing with them. You have to do a remote review of the documentation and a live video conversation. So I would hold up my driver’s license for you. You would review it, say, flip it over. Great, looks good to me. Now let me see, what other document do you want, Chris? I’ll say. Here’s my unrestricted Social Security card. Hold that up front and back. You take a look at it, and you could either be taking screenshots of those documents, or you could have me upload and send copies to you. And so that’s an option going forward. And then you would, of course, as treating me as a new hire, you would just complete the I Nine as if we had met in person. You would check the alternative procedure box, you would run me through Evarify, and you would have a perfectly completed I Nine in that context too. The second tier, second part of the analysis is, okay, well, what do we do to catch up? We hired all these people virtually during COVID What are we going to do to get everything done by August 30? And really those same procedures are still in place. You can have people come in and do the physical review with those individuals. You can have authorized representatives take care of this for you wherever they happen to be in the country. Or you could decide to do this virtual approach, but only if you are enrolled in E Verify all the way through COVID and in good standing during that time period. And then if you meet that criteria, then you’re going to be in a position where you can do the virtual updates. We have some clients who have called us and said, we’re going to do a blend of all three. Some of them are saying we’re going to meet with our new people at the offices one on one, and we’re just going to complete I Nine s the way we always have, and others are saying, we’ve already got this notary network arrangement with one of those I Nine vendors out there. They’re taking care of most of this in person catch up for us, which is fine too. But a lot of others are saying we’re changing course completely and we’re going to, number one, use this approach to catch everything up and make sure that our internal team gets the Section Two s updated correctly. But there are also companies out there that are now saying, I’m thinking of a large bank nationwide where they say a lot of the branches don’t get it right. So we’re just going to establish a center of excellence here in headquarters where we have I Nine experts, and they’re going to be responsible for onboarding everybody nationwide in a virtual context so that we get our I Nine right.

Kortney Harmon [00:16:54]:

Okay. You mentioned something that going back to our previous conversation and you mentioned the concept of authorized representative. And last time you had mentioned there are some maybe some guidance or some suggestions on people you can use. Can you talk to us a little bit more about that authorized representative if you choose to use a blend of all of these things? So what does that person entail? Is there any special requirements? Give me the lowdown on that piece for our audience members.

Chris Thomas [00:17:20]:

Sure. So the authorized representative approach has been around for a long time, trucking companies and so on. We’ve been using this for decades with some clients. The general principle and guidance now is that any person can serve as your authorized representative and do the update for you in Section Two. So that’s one of the things to keep in mind as we’re talking through this, that we can have any person do it. Now that gives a lot of companies heartburn. They think, well, wait a second, if you’ve got somebody who’s having his sister do the Section Two update and they both came into the country unlawfully together and got each other paid green cards and say, well, it looks good to me and sign off, then that’s a potential concern from a compliance perspective. So some companies have expanded and said, well, we’re going to use notaries. Notaries is kind of a dangerous approach too, though, because in California, for example, notaries are not allowed to complete Section Twos unless they’re bonded immigration consultants in California. And the truth is that Notaries love to notarize things. So they’ll often just notarize it, put their stamp on it, and they don’t do the section to the way you’d want anyway as an employer. Other companies have taken a blended approach where they have an authorized representative, such as the sister sitting next to your new employee, but they join in by a zoom call or something just to review what’s being done and ensure that everything looks like it’s kosher as that person signs off as our physical authorized representative.

Kortney Harmon [00:18:47]:

So what I’m hearing, and correct me if I’m wrong, that authorized person can be the one that’s doing the virtual, the new process as well, correct?

Chris Thomas [00:18:56]:

Well, good question. Most people are going to be using electronic I Nine systems.

Kortney Harmon [00:19:01]:


Chris Thomas [00:19:02]:

We think going forward. And so they would need to have access to the system.

Kortney Harmon [00:19:06]:


Chris Thomas [00:19:06]:

So there are companies out there that are already taking the steps necessary to serve as your authorized representatives nationwide and just to handle that virtual video conference and everything so that we’ve got people properly verified on their first day of employment. So a lot of companies will probably try to outsource this process to those vendors. It’s kind of pricey. And so a lot of companies are going to say, yeah, we’re not doing that. We’ll establish our own location or locations where we’re just going to do everybody virtually as we complete our I Nine.

Kortney Harmon [00:19:38]:

How do employers mitigate risks associated with non compliance of these changes? We might have already covered that at this rate.

Chris Thomas [00:19:46]:

Yeah, maybe we have, but maybe we should play with that just a little bit farther because all of the old I Nine rules are still in place. All of the statutory framework and all of the criminal case law is still in place too. So remember that section two is signed under penalty of perjury and visa fraud, two different felony statutes. And what we need to understand as we’re signing off for people is that we’re saying that we’ve met with this person, that the person presented documentation which to us appeared to be reasonably authentic and to the best of our knowledge, this person’s authorized to work in the United States. So one of those pitfalls that we need to keep in mind is that if document does not look right sometimes you should probably have an escalation process within a company not to get overzealous. Because we see some people sometimes reject documents that were good and that can get you in trouble with civil rights division at the Department of justice. But on the other hand of it is if it’s an obviously fake green card, we do not want you signing off saying, hey, looks good to me, and signing off on it because remember, it is a good faith or reasonableness standard. And if you’re failing to meet that, you’re veering into a potential criminal exposure realm as an individual, not just as a company.

Kortney Harmon [00:21:03]:

Good to be aware of. I love the idea of have an escalation point. Think about this as processes moving forward. What is the next step? Like if this then that kind of concept, right? Yeah.

Chris Thomas [00:21:15]:

We’ll even offer that to the people listening. We love fake documents around here. If you get a good fake, send it our way, we’ll just verify it and then you have the defense of advice counsel also where we can say yes, speak for the following seven reasons and you’ll feel solid going forward.

Kortney Harmon [00:21:31]:

That’s amazing. That’s such amazing advice. I know we talked about this before, but there are any other specific industries or types of businesses that maybe are particularly affected by these changes?

Chris Thomas [00:21:43]:

Yes, we have some clients in particular that do not have any bricks and mortar offices. They are purely virtual at this point, and I imagine some of those who are listening to us today are among that crowd. The truth is that they don’t have a way to meet with people physically. And so this virtual I Nine approach is going to be a godsend for them.

Kortney Harmon [00:22:04]:

Love it. Resources and tools. I know we talked about this briefly available to help employers navigate these impending changes. Anything that you could suggest?

Chris Thomas [00:22:14]:

Absolutely. There are some exceptional vendors out there who have really come up with some very good ini products, and they’re now creating the framework where they can serve as authorized representatives for your company. So somebody completes section one with the link that was sent to them. That then goes to the individual who’s that vendor of yours, and they take care of it for you. I’m probably not in a spot where I can mention companies safely, but there are some companies that are very good and others that are less good. Maybe we’ll leave it at that. You want to carefully vet any vendor they end up using?

Kortney Harmon [00:22:51]:

I think that’s great advice. Now, I already know Katie has a bunch of questions. My only question left for you, anything that we didn’t cover, are there any additional considerations or advice that you would provide to employers regarding these changes that we haven’t discussed thus far?

Chris Thomas [00:23:06]:

Well, I know that there are a lot of companies where this won’t affect them at all. Manufacturing companies, for example, are really not interested in doing the virtual I Nine completion. People are going to come in, they’re just going to continue to do the old approach that they’ve always done, meeting with somebody physically. The virtual approach looks like it’s going to open up the door for people to establish what some companies are calling centers of excellence, where they will just have a group of skilled professionals who know how to get it done right and will complete these I Nines correctly. What I worry about is that people will try to take approaches that will not comply with existing regulations. Still, for example, you complete a virtual I Nine, you think you’re doing everything correctly, and then people are going to be tempted to do things that will skirt the other regulations. For example, they could type in their name and count that as a signature. When it’s not an electronically authorized program, you got to have a process for storage. Also, you’ve got to have audit trails and so on. And we’ve run into companies recently where they just have electronically completed I Nine s, but they don’t comply with the regulations and they’re just storing them on their desktops and other such things, which is not appropriate. So again, there’s a lot more to this whole analysis. We want to make sure that people remember that it didn’t throw out all the prior regulations. You still need to comply with storage requirements, either physical signature requirements or electronically authorized signature approaches, et cetera.

Kortney Harmon [00:24:36]:

And that wraps up part one of our must listen discussion with Chris Thomas. Stay tuned for part two, dropping this Thursday, August 10, when we’ll dive into the insightful audience AMA portion. It was so good. With so many great inquiries, we had to give it its own spotlight. So listen in on Thursday. I’m Courtney Harmon with Crelate. Thanks for joining the full Desk Experience. If you enjoyed the show, be sure to subscribe and rate our podcast wherever you listen. We appreciate you spending time with us and look forward to bringing you more captivating conversations soon. I’m Kortney Harmon with Crelate. Thanks for joining the full Desk Experience. Please feel free to submit any questions for next session to [email protected] or ask us live next session. If you enjoyed our show, be sure to subscribe to our podcast wherever you listen, and sign up to attend future events that happen once a month.

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