Form I-9 Considerations for Staffing Agencies

As of August 1, 2023, the new Form I-9 will be available in addition to remote I-9 verification for E-Verify employers. Form I-9 compliance for U.S. employers and staffing organizations comes with its own set of challenges, this article will help to review key Form I-9 and E-Verify considerations, especially for staffing companies.

The largest challenges that we often see staffing organizations struggle with, as it relates to compliance with Form I-9 requirements for both onsite and remote hires is:

• Hiring in large volumes and managing high turnover rates.
• Seasonal, temporary, and contingent workers.
• Multiple hiring locations with a dispersed workforce.
• Companywide training for HR staff on consistent and compliant processes.
• Managing and tracking I-9s for each hire, client, and location.
• Staying up to date with Form I-9 and E-Verify requirements.

Additional challenges arise with remote I-9 verification including:

• Organizing logistics to meet the in-person document inspection requirements (virtual I-9 verification alternatives will not be available to employers who do not participate in E-Verify).
• Training staff in complex document requirements.
• Avoiding discrimination during the document review process.
• Managing and keeping track of I-9s for multiple sites.
• Accurately completing each field of the Form, I-9 and meeting government deadlines.

Government compliance guidelines may seem complex, however, there are key considerations that staffing companies should keep in mind for offsite hiring, including the following requirements:

• Section 2 of Form I-9 must be completed within 3 business days from the date work for pay begins. Staffing agencies may choose to use either the date an employee is assigned to the employee’s first job or the date the new employee is entered into the assignment pool as the first day of employment.
• Employers may designate, hire, or contract with any person to complete, update or make corrections to Section 2 or 3 on their behalf. This person is known as the employer’s authorized representative.
• A company employee or authorized representative must be physically present with the employee to review identification and work authorization documents, unless you are an E-Verify employer. The alternative document review rule for virtual I-9 document inspection will apply after August 1, 2023.
• The person that examines the original, unexpired documents in the presence of the employee must fill out, sign and date Section 2 of the I-9.
• The employer will be liable for any errors made on Form I-9, no matter who completes Section 2 or Section 3.

Section 2 Document Review Considerations

As the COVID-19 temporary remote I-9 verification flexibilities are soon to expire, taking the following rules into account may be helpful in ensuring that your organization meets I-9 compliance guidelines:

• The authorized representative must accept a document presented by an employee that reasonably appears to be genuine and relates to the individual presenting it.
• The document must be original – photocopies are NOT acceptable, except for a certified copy of a birth certificate.
• Your employees CHOOSE which documentation to present from the Lists of Acceptable Documents.
• One document from List A; or one document from List B in combination with one document from List C.
• If you take part in E-Verify, and the employee presents a combination of List B and List C documents, then the List B document must contain a photograph.
• You may accept a receipt showing that your employee has applied to replace a document that was lost, stolen or damaged. See USCIS guidance for more information about receipt rules.

Keep in mind that foreign national employees often have added requirements that your staffing organization should be mindful of such as:

• Expiring Work Authorizations
• TPS Status – Temporary Protected Status
• Visa Category Codes – Category Codes and Additional Document requirements

Avoiding Discrimination

Avoiding discrimination during the Form I-9 or E-Verify process is imperative for staffing agencies. Several staffing agencies have been fined and penalized due to discrimination during the onboarding process and violations of the Immigration and Nationality Act (INA).

It is important that every U.S. employer follow compliance guidelines regarding the document review process. Requesting specific documents or more documents than necessary violates the INA and can lead to substantial penalties per offense. Learn more about a related staffing company case here in our recent blog: Staffing Company Fined for I-9 Discrimination Practices.

Key items to consider:

It is against the law if, during the Form I-9 process, an employer takes any of the following actions based on a worker’s citizenship, immigration status, or national origin:

• Limits a worker’s choice of documents from the Lists of Acceptable Documents.
• Requests more or different documents than necessary.
• Rejects valid documentation that reasonably appears to be genuine.

Click here to the download DOJ guidance for avoiding discrimination during the Form I-9 and E-Verify process. The DOJ has also provided new guidance for avoiding discrimination related to employment eligibility verification and U.S. export control laws.

Remote I-9 Verification Options

Many Form I-9 vendors provide the following options for a remote physical review of I-9 verification:

• The options to choose an employer appointed authorized representative.
• The option to allow your employees to choose their own authorized representative.
• The option of a third-party network, including a national network of mobile notaries, trained on completing Form I-9 to meet the employee at a convenient location.
• Coming soon: As the new remote I-9 verification alternative becomes available for E-Verify employers, some electronic I-9 vendors may incorporate tools for a live video conferencing directly into their platform. Note: A live video call is a requirement to use the alternative process.

Although any person may review Form I-9 documents, it’s important to note that the employer will be held liable for any errors or mistakes, which could lead to hefty fines and penalties. Abiding by document review requirements and avoiding discrimination during the I-9 process is imperative no matter who completes the I-9. This is where a Form I-9 compliance software provider may be able to help to create a consistent and more compliant process for both onsite and remote hires.

What To Keep in Mind About Electronic I-9 Vendors

Many staffing organizations have already implemented an electronic I-9 solution or I-9 software solution, however it’s important to bear in mind that not all I-9 systems are designed to meet compliance requirements, and some are not well suited to meet the needs of staffing agencies. Electronic I-9 vendors may offer a way to complete Form I-9 online, however not all systems are built to help ensure each form is completed accurately. Some electronic I-9 systems may walk the user through completing each field of the I-9 but may also fail to meet current I-9 compliance requirements. Other areas you may want to address when searching for an I-9 software vendor include:

Learn more about how a Form I-9 compliance platform can help staffing organizations to succeed in meeting legal requirements by contacting us or sign-up for a demo to see what makes GryphonHR different than other I-9 software providers. 

1) Ensure your I-9 vendor can support your agency’s structure and scale:

• Does your organization have multiple Employment Identification Numbers? If so, can you configure your I-9 system to your staffing agency’s structure, so that it works across all locations?

2) Find a solution that you can customize to meet your agencies specific needs:

• Can the I-9 platform help you to supply specific permissions for administrators and limited permissions for other staff members?
• Can you brand the solution with your company’s logo, colors, and visual style?
• Can you configure reports and dashboards to help you find information quickly and easily?
• Do you receive alerts and notifications for expirations and items that need attention?
• Can you customize employee emails and notifications?
• Can the I-9 system integrate with your existing business or HR systems to provide a seamless experience?
• Are you able to view progress, track and create customizable reports to better manage your Form I-9 and E-Verify procedures?

3) Review the vendors policies and platform features for compliant storage, retention, and data security:

• Does the system meet I-9 storage and retention requirements?
• What protocols are in place to keep your company and employee data safe and secure?
• Can you access and import or export company data quickly when you need it, especially when it comes to an Audit?

4) An I-9 system can affect the onboarding experience for your staff and employees:

• Is your system easy for your staff and employees to use?
• Is responsive support offered when your team or employees need help?

5) If you’re using a third-party network of authorized representatives:

• Are they trained in completing the I-9 and your vendors system? Does I-9 data get transferred to a third-party system?
• Do you have access to convenient and flexible I-9 verification options?

Learn more about how a Form I-9 compliance platform can help staffing organizations to succeed in meeting legal requirements by contacting us or sign-up for a demo to see what makes GryphonHR different than other I-9 software providers.