[Podcast] Workshop | Ask Us Anything: Tips and Tricks in Understanding I-9 Compliance for Staffing

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Show notes

In today’s episode, we continue our exploration of the crucial updates and changes to the I-9 form. We’ll be taking a closer look at the additional information section and how it has been modified to accommodate COVID-related details. Whether you’re completing these forms physically or utilizing alternative procedures, we’ve got you covered. Stay tuned as we discuss the potential consequences of non-compliance, the responsibilities of staffing agencies, and tips to mitigate risks. Join us for this live Ask Us Anything episode as we navigate the intricacies of I-9 compliance and provide you with the information you need to ensure your workplace is in full compliance. Let’s get started!


Kortney Harmon [00:00:01]:

Hi, I’m Kortney Harmon, staffing and recruiting industry principal at Crelate. Over the past decade, I’ve trained thousands of frontline recruiters, and I’ve 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. Katie, I see questions still building as Chris keeps talking, so I think it’s your turn to jump in and ask some of these questions to Chris.

Katie Jones [00:00:41]:

Yes. So I have at least one person who would like to come on stage. Veronica, I see that you just asked the question. Can you please just write in the chat if you would like to come on stage? Also, I’ll drop a link for that. I’m going to start in order, so give me a second to scroll up because, as predicted, the chat has blown up. Our first question comes in from Todd, and Todd was wondering if while they’re showing on this video chat option, while they’re showing their IDs and Social Security cards, is recording the video allowed?

Chris Thomas [00:01:14]:

Good question. As long as you tell people in advance, this session is going to be recorded, do you have any problems with that? And the person says no. Then go ahead and proceed. There are statutes out there that forbid surprise recordings in some contexts, but as long as you clarify that we are recording this session and are you okay with that, then no problem at all. I like the idea, actually. It’s a nice way to prove that you were, in fact, in compliance. You did everything right.

Kortney Harmon [00:01:41]:

Is there any storage options of that? Do they have to put that recording in a certain place with having secret information like PII information?

Chris Thomas [00:01:51]:

Certainly we’re worried about all of the privacy related issues in all of this, so please ensure that if you’re doing any type of recording, that you’re doing it in a way where everything is encrypted and properly saved in perhaps an HRIS location, like Workday or something along those lines.

Katie Jones [00:02:08]:

Great. Sergey asked for existing temps. Do we rerun e verify?

Chris Thomas [00:02:15]:

So for existing temps, that’s a real good question and actually opens up a complicated analysis as to who’s a continuing employee and who isn’t. As a general principle, the safest approach to take with temp labor or seasonal labor maybe, is the way we’ll phrase it is that you just complete a new I Nine every time you onboard somebody as a new hire, and when you do that, you’re allowed to run them through evarified too. But some employers out there say, well, that gets complicated for us. We prefer to treat them as continuing employees. And then there’s a much more advanced analysis, probably beyond the scope of this discussion, about who qualifies as continuing and who doesn’t.

Katie Jones [00:02:55]:

You kind of answered Christy’s question earlier about how authorized reps are selected. She jokingly said, does it have to be a notary or could it be the new hire’s mother? Hypothetically, it could be the new hire’s mother.

Chris Thomas [00:03:07]:


Katie Jones [00:03:07]:

Is that how we’re understanding?

Chris Thomas [00:03:08]:

The guidance says any person, so it does not have to be a notary.

Katie Jones [00:03:12]:

Perfect sergey meant to clarify that. He means for attempts on assignment now. So if they’re actual employees doing work.

Chris Thomas [00:03:20]:

Right now okay, so the general principle is that if somebody’s been a continuing employee for this entire time and you ran them through E Verify, say, during COVID under the temporary rule, you would not run them through E Verify a second time. That is an important thing to remember. In fact, just to build on that just a little bit farther, homeland Security runs E Verify, and in that same office suite, they have two sub agency suites in the same place. They have Immigration and Customs Enforcement, who comes after us when we fall a little bit short, and they have Immigrant and employee rights at DOJ, who comes after us if we go too far. And if they were to see somebody being processed to reverify multiple times, they’re going to walk down the hall and say, ABC companies running these people down, running these people three verify on multiple occasions. Would you like to take a look at n the responsibility? Why, yes, we will go take a look at ABC Company.

Katie Jones [00:04:14]:

Sergey says great. So new I Nine needed and no evarify, or no new I Nine needed at all?

Chris Thomas [00:04:22]:

I think we need to get Sergey on the chat so we could ask him some additional questions about these Step workers.

Katie Jones [00:04:27]:

Sergey, would you like to come on, Sergey. So if you want to hop on, I’ll wait and see if he joins us here. I’m going to move on. So Lori asked lori, hold on. Oh, well, you kind of answered this. Are you required to save the video conference or just the screenshots of the IDs or whatever it is? And then you talked about needing to save that in other places.

Chris Thomas [00:04:48]:

Yeah, just to reinforce that we’re not required to record or retain that recording, all we have to do is have a copy front and back of the documents that were presented.

Katie Jones [00:04:57]:

Thank you. Christy asked for compliance with evarify. Users remotely verifying documents what is considered hiring sites. We are 100% remote with no physical office and hire in multiple states. Do we need to list every state as a hiring site?

Chris Thomas [00:05:16]:

That’s a messy one. That would probably require a pretty deep dive into your whole system. But what we would normally tell you is certainly you want to list hiring sites in the ten states that require evarify. So start with that so that you can say that you’re in compliance in those states and then with the other ones. Often you could get away with just having one primary site. So wherever your headquarters happens to be, that’s going to be the location that does the hiring. And they could be responsible for doing all the virtual I Nine s and the verify processes out of that primary location too.

Katie Jones [00:05:48]:

Carmen says, do we need to change all our I Nine previously filled out, or does this only apply to new hires?

Chris Thomas [00:05:55]:

So there are two parts to that question. First of all, if you’ve been physically reviewing everybody every step of the way, just completing your I Nine s in the correct format that was under previous law, you would not have to do any additional changes to those I Nine. You met with people physically, you reviewed the documents physically, you’re good. The only situation where changes would be required to the prior I Nine s would be between the March 2020 through July yesterday, 2023, in which you had processed people virtually. That was a temporary rule that expired yesterday. And so now within the next 30 days, you would need to do updates in the additional information box in section two, where you would just say alternative procedure. If you decide to do it virtually, put your name in that box and date and initial, and we would have an appropriate update. So, long way of saying it depends which approach you took.

Katie Jones [00:06:52]:

Perfect. Okay, I’ve got Barbara again. Barbara, I’m going to try to pull you back up on stage and see if you can hear us better.

Chris Thomas [00:06:58]:

She’s back.

Barbara [00:06:59]:

I’m back. Did I understand you to say that now they’re going to go back to virtually doing it because I was understanding that they were no longer going to do the virtual since it’s post COVID.

Chris Thomas [00:07:12]:

Right. So the virtual rule that was available still under COVID expired yesterday, but a new regulation two weeks ago has been introduced. And so now going forward, we can do virtual reviews going forward. And so you can do those virtual reviews on two ways, either with new hires or you can do them also when you’re doing section two updates, when companies are trying to get up to speed or update their I Nine s that were completed during the COVID era, right.

Barbara [00:07:39]:

For myself, I would like to know instead of having to go through the third party n three, notary I would like to do that myself on my own. So what are the qualification? I think I heard you say that I would have to be e verified or have that system in place.

Chris Thomas [00:07:57]:

So it’s the employer that would have that e verify account. The employer ends in and doing their memorandum of understanding and setting everything up. And then as the I Nine is completed, you are the person who’s serving as the authorized representative who’s helping with the completion of the I Nine. And then it’s probably going to be the employer though, that’s going to have that memorandum of understanding. They’ll run the verify query after you properly complete the I Nine.

Barbara [00:08:23]:

Understood. So I would have to reach out to the employer to get set up as their authorized representative.

Chris Thomas [00:08:31]:

Anybody can come to authorized representative. It says any person, notary or not. If you want to market yourself as somebody who does, that great. And then doing the evarify process would probably be completed on the side of the employer. They would take care of that in their human resources department.

Katie Jones [00:08:47]:

Katie, the chat just keeps going. Oh, my gosh. I know. Good news. We still have 16 minutes left. Veronica has asked we recently conducted an HR audit and found some Tenored employees over 20 years have original I Nine documents missing from our files. Should we follow a similar process as the COVID era hires I Nine updates for these missing I Nine files?

Chris Thomas [00:09:10]:

Yeah, so great question. In that situation, of course we’re missing the I Nine s. That’s a problem. That would be a substantive error findable by up to $2,700 per defective I Nine or missing I Nine. So it’s certainly something you want to remediate. Now, you’re still completing it late because you can’t find the prior I Nine. And so that’s a problem in its own right. But it’s certainly better to have some I Nine, even if it’s late completed than no I Nine at all. And so at this point, you have one of the three options, right? You can either, number one, meet with those people and just do an in person I Nine completion. To have a newly completed I Nine, you could do the authorized representative approach using somebody like Barbara, as we just discussed with her, or you could do the virtual I Nine approach that is now available. If you’re enrolled in Evarify, have been through the appropriate training, the E Verify offers, and then you’re having them show you the front and back as they show you their documentation on screen, and you keep copies of those documents front and back, then you’d be in compliance, even though it’d be a late completed I Nine. Better than no. I nine for sure.

Katie Jones [00:10:19]:

Perfect. Quick follow up to that. Veronica also asked for the corrected I Nine for employees hired in the COVID era with the virtual review. Do they use the old I Nine forms or the new I Nine form for any adjustments?

Chris Thomas [00:10:34]:

Very good question. Thank you, Veronica. We hadn’t hit that yet. And so the answer is that you can use the old form I Nine for any updates all the way from August 1 today through the terrifying day of October 31. And so you’re free to use the old I Nine if you want to during that time period. You may, however, also start to use the new I Nine that has just been released, and you can use that effective today and must use it starting November 1.

Katie Jones [00:11:03]:

Great question. You keep saying terrifying and horrifying. So I definitely am going to have to get the music queued.

Chris Thomas [00:11:12]:

What else could I do, right?

Katie Jones [00:11:14]:

Just like really? Yeah. I love it. Cindy is asking why is a client? I think this has to do with who is the employment of record. But I’ll let you answer, Chris. Why is a client company doing I Nine checks when it is the responsibility of the staffing agency?

Chris Thomas [00:11:30]:

Oh, well, that’s an interesting question and certainly something that you want to be careful about. Any context? If you’re using temp workers through a staffing agency, then that staffing agency should have a very clear responsibility under your contract with them, that they’re responsible for all things under the Immigration Reform and Control Act. So they should be doing I Nine s. Hopefully you’re asking that they do evarify also, but the I Nine is up to the staffing agency, certainly not up to you. The whole world of enforcement is shifting right now, and we’re watching it unfold nationwide, where companies that rely very heavily on staffing agencies are finding themselves in situations where the investigations clarify that there appears to be a joint or co employment arrangement between the staffing agency and the primary employer. And so not only must we ensure that we’re doing our own I Nine s well, but when we’re using staffing agencies, we need to ensure that they are following a good procedure too these days.

Katie Jones [00:12:29]:

Thank you. Kind of circling back up to earlier when we were speaking about continuing employment and what qualifies, gabriel was wondering if a temp only works once every year or two years, can they be considered a continuing employee?

Chris Thomas [00:12:44]:

Well, the definition is that they need to have a reasonable expectation of continuing employment. Sounds like if it’s somebody who comes in for a month once every two years or something, that doesn’t really feel like a reasonable expectation of continuing employment. And maybe the better approach is just to have the placement agency be responsible for the whole part of that process anyway. It sounds like that’s kind of a staffing agency question again, and they would be responsible.

Katie Jones [00:13:11]:

Perfect. We utilize workday, but have some employees who started before we implemented workday, and there’s no I Nine section on them in workday, but they have the employees who started after workday do have an I Nine section. So will they be able to mince some I Nine via inside of workday? But how should they verify those who started before? That was very convoluted before we implemented workday. So basically, I believe the question is, let me reiterate is they have all this employees pre workday. They have employees post workday. How do they update those pre workdays to verify?

Chris Thomas [00:13:48]:

Yeah. Now we’re just to the general framework of I Nine compliance outside of the new alternative procedure regulation that we were talking about earlier. And the guidance is that you can have a variety of storage methods. So say that pre workday, you completed all paper I Nine s. The approach would be that you would either keep those paper I Nine s in their paper format and store them separately, or you could follow the proper migration process through your vendor workday, in this case. And then after post workday, it sounds like everybody had electronically completed I Nine s, and those are just stored in the system already. And so, again, you can have both systems, or you can decide to consolidate everything by going through the migration process. That migration process costs a lot. A lot of employers opt against it. So a lot just have the two storage systems, paper and electronic.

Katie Jones [00:14:40]:

Thanks, Chris. Sergey restated his question, so hopefully to come up with a better answer for him. For existing employees who are still working, having started during COVID with the remote documents verified and evarified completed, do we add to their existing I Nine or fill out a new I Nine dated August 1?

Chris Thomas [00:15:01]:

Okay, you’re adding to the existing I Nine. You’re going into the additional information section. So it probably said COVID, date and had the initials or maybe the name in the additional information box in section two previously. Now you would update those I Nine either physically or using this alternative procedure. Let’s assume you’re going to use the alternative procedure, but either way, you have to do an update for people who were processed virtually during COVID You need to go in, you could say alternative procedure. If you’re using this electronic approach now and then you would put your full name and date in the additional information. So it’d be another update in the Additional Information box in section two.

Katie Jones [00:15:45]:

This is Danita. She says, hi. Chris. I appreciate all the info you mentioned. Some companies mix or use all three different I Nine procedures and ways to verify. Can you give an example of that?

Chris Thomas [00:15:56]:

Yes. So we’ve got situations, for example, where some companies have all of their employees who work at the factory or at the office, whatever bricks and mortar location you have, they just do them in person and complete their IA Nine s as they meet with them in person on their first day of employment. Meanwhile, those same companies have, say, marketing team that’s purely remote, and so they process all of them virtually using the process. We’ve talked about this alternative procedure. And then there are some situations where, because people have technology issues, but they’re still working remotely. In that situation, we would just have them use the authorized representative approach. So they would visit their local, notary like Barbara, and that person would help them complete the update to section two, or complete section two if it’s a.

Katie Jones [00:16:47]:

New hire to clarify virtual, this is by video only and not just a photo. Employees can’t send a picture of their IDs.

Chris Thomas [00:16:56]:

Correct. The guidance is very clear that you must have a live video interaction with the individual. So on that person’s first day of employment, say you’re having that live video interaction like this, where that person is showing you the documentation. Maybe they’re holding up their passport to the side of their face saying, see, same person kind of a thing, because you have to substantiate identity first and then employment eligibility by looking at the documentation to make sure it’s authentic and so on.

Katie Jones [00:17:25]:

Perfect. Thank you, Chris. And then our last question is coming in from Tara, and it’s a good one. I thought I Nine only had to be on file for three years once hired. Is that true?

Chris Thomas [00:17:36]:

That is not true, Tara. So let me walk you through it. And the way to do it is just to simplify the analysis for you. So for all current employees, you should have an I Nine on file, unless you have one of those rare few who were hired before November of 1986 when the law went picked. But all current employees hired after that date should have an I Nine on file. Now, once you terminate somebody, there’s a retention window that kicks in. So it’s three years from the date of hire or one year from the date of termination, whichever of those two dates is later. So suppose that you hire me today and I’m a train wreck, and you fire me today, too. Well, one year from the date of termination only takes us to 2024. But three years from the date of hire takes us to 2026. And so that’s the later of the two dates. You’re going to hang onto it until August 1, 2026. In that context, on the other hand, if you hired me in 1990 and you fire me today, well, 1993 would have been three years from the date of hire. One year from the date of termination takes us to August 1, 2024. So that’s how long you hang on to the I Nine. So you got to follow that retention window. But, yeah, if somebody’s an active employee, you still have an I Nine on file for that person.

Katie Jones [00:18:54]:

Thank you, Chris. And then one final question, guys, and then I’m going to wrap it. Sergey is asking, must we keep a photocopy on file?

Chris Thomas [00:19:04]:

Let me answer that on two levels. First of all, if you’re not using this alternative procedure, you are not required to keep those copies on file. Okay? I will add that it is a best practice to keep those copies on file. That is a best practice because it shows good faith when Homeland Security comes to investigate. They like you much better when you’ve kept copies. It also helps your outside legal counsel get you into compliance. If you’re worried about compliance breakdowns, because we can’t do much if we can’t see copies of the documents that are being presented. It also, by the way, forgives a multitude of sins if you keep copies and you didn’t enter the right issuing authority, for example, then that could be a fineable offense if you didn’t keep the copy. But if you did, it’s a technical error that can be corrected. Now, with the alternative procedure, this new virtual approach, you must keep copies front and back of each document presented that is required as part of the compliance measure in this new regulation.

Katie Jones [00:20:00]:

Chris, how do you obtain copies under the remote virtual? Is it the screenshot? Do they take a picture on their phone and text it to you? What’s the best way?

Chris Thomas [00:20:09]:

Yeah. So we’re seeing the screenshot approach. We’re also seeing companies that are offering a link now where people can just upload their documentation into the system. That way I am much less comfortable about emailing copies of my documents to the employer after that live interaction because I think you got some real potential privacy breakdowns in that context. So screenshot is probably the best approach if they don’t have a way to upload it on your end as the employee.

Katie Jones [00:20:35]:

Okay. And I love Daniel. She’s so funny. She goes, last question, I promise. If staffing agencies are using a third party company for their clients for payroll and verification, is that okay? Would they be the employer of record that needs to do the I Nine, or how would that work?

Chris Thomas [00:20:54]:

Long way of saying it depends. You’ve got so many different arrangements out there with Peos, the staffing agencies and so on, and it really depends on how the contract has been crafted, who has the responsibility. And when I go through I Nine audits and investigations, ice asks for that. They say, we want to see the contract. Who is responsible for the I Nine?

Katie Jones [00:21:14]:

Excellent. Thank you, Chris, so much. I am officially cutting off Tara. You’re going to have to email us or email Chris. And Chris, can you let all the kind people know how they can inquire about your services further if they have additional questions?

Chris Thomas [00:21:31]:

Sure. I would love to hear from you. Happy to help you with this wild and crazy area. So the first approach would be that you could call me, of course, and you can call me at 303-913-9228 or you can email me. And my email is Chris. Chris Thomas. T-H-O-M-A-S at ogletree O-G-L-E-T-R-E e.com. Chris [email protected].

Katie Jones [00:22:01]:

Perfect. Thank you, Chris. I’m going to go ahead and send that in through the comment section too. And then if you all are listening to this on the podcast, I’ll include links to Chris’s company in our podcast descriptions too. So if you’re listening, look there. And yes, Barbara, we will also provide the link for the new I Nine verification regulations. I am going to cut us off. We are at time. I’m hopping off. I’ll let you guys wrap up. Chris, thank you so much. This was such a great and awesome just conversation today, especially with the Q and A. So thank you.

Chris Thomas [00:22:31]:

Thank you. So good to be here.

Kortney Harmon [00:22:33]:

Chris, as anticipated, Q A was off the charts. Thank you so much for answering questions. And thank you so much for joining us for the second time around. Hopefully there’s no future changes. I’d love to have you back on, but these changes make everyone a little crazy. So thank you for joining us.

Chris Thomas [00:22:47]:

So good to be here. Thank you very much.

Kortney Harmon [00:22:49]:

Absolutely. As we wrap up this episode of the Full Desk Experience, I want to extend a sincere thank you, obviously, to Chris for providing us with invaluable insights to these changes. Understanding these nuances and the updates is crucial for all professionals in the staffing and recruiting industry and more. And Chris has certainly shed some light on some various aspects that help us navigate this evolving landscape. So if you’re looking for additional services around this topic, obviously we’re going to link that information. Chris’s information in the show know today. We began by exploring the updates, delving into potential consequences and implications for those who fail to comply, and also, Chris talked about those hidden pitfalls that we need to pay attention to as employers that we should be mindful of during this implementation phase. So for our listeners benefit, chris provided some valuable insight and tips on how to mitigate risks, non compliance and address whether specific industries or businesses might be particularly affected. Before we sign off, I want to thank all of you, our dedicated listeners, for tuning into today’s episode, asking those questions, and we hope this has been enlightening and empowering for your careers. So thank you again for joining us, and if you have any further questions that we didn’t get to today, or you think of anything, you can email Chris or you can email Katie, and I at [email protected]. I’m Courtney Harmon with Crelate. Thanks so much for joining us. Listen in on the podcast and join us for future episodes. Have a great day. 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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