One early employment-related casualty of the COVID-19 pandemic was a clear understanding of the Employment Eligibility Verification process, which requires all U.S. employers to properly complete I-9 forms for each individual they hire, including both U.S. citizens and noncitizens. While health care providers turned their focus to more basic survival concerns, the federal government provided less than clear guidance on I-9 compliance. Many providers greeted this lack of guidance with a tentative sigh of relief and, in some instances, a memory lapse. The effects of the latter are now being felt not only by the providers who continued employing workers post March 2020, but also by those who increased hiring to keep up with the exponential demand for care. These providers may become “lucky” hosts to I-9 auditors as the government’s fiscal year comes to a close on September 30, 2022.

While there are a number of factors to consider when evaluating I-9 compliance, below are some of the most frequent problems employers are facing: 

• The realization employment verification was deficient or forgotten altogether; 
• Too much reliance on the government’s temporary relaxation of I-9 procedures;
• A misunderstanding of remote verification protocols; 
• Abandonment of E-verify with or without intent to do so. 

Each of the issues listed above has the potential to cause significant trouble if auditors appear on your doorstep, and more importantly, they can affect all employers regardless of workforce authorization status. During an audit, a provider can be fined for failure to properly complete and maintain I-9 files for all employees; however, those fines would increase exponentially if an audit uncovered poor I-9 compliance hygiene even in the absence of any illegal workers. Unfortunately, even providers who delegate verification to third parties, such as Professional Employment Organizations (PEO), are not safe, as the PEO’s practices and service contracts may also have been affected by pandemic-related process failures. So, as an employer, what are you to do?

1. Assess your current Employment Eligibility Verification policies and procedures. 
2. With the help of an immigration law professional, identify the best I-9 verification practices for your practice or facility to implement. 
3. Consider the pros and cons for all business functions when making decisions regarding E-verify registration. 
4. Review the storage approach for I-9 documentation (electronic versus hard copy). 
5. If a PEO is utilized for I-9 compliance, review the PEO service agreement with an eye towards protecting your practice or facility in case of a government audit. This should include a review of any indemnification clauses.  
6. Conduct an in-house audit of current I-9 files and purge old records eligible for destruction.
7. Schedule regular self-audits and training for responsible personnel to ensure best practices are followed and maintained. 
8. Plan and implement remedial measures for issues identified during the self-audit. 
9. Update your practice or facility's written I-9 policy and procedure documents.
10. Limit I-9 verification access to only designated personnel to ensure consistency and appropriate knowledge sharing.

Irina Plumlee is the Immigration Practice Group Leader at Munsch Hardt, a full-service, Texas-based law firm. The Immigration practice represents health care companies and practices on employment-based immigration, such as international executive/managerial personnel transfers; E proceedings for entrepreneurs; H-1B, TN and L-1 petition proceedings for foreign processionals; I-9 compliance and fairness in employment practices.

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