New Federal Government Initiatives Affect Legal Enforcement

While making changes in employment laws has not been a priority for the Trump Administration in 2026, that does not mean that there is nothing new to watch.  First, ICE announced last month that certain clerical errors in completing I-9 forms which formerly could be corrected in the future now constitute substantive violations which could result in substantial fines. Second, OSHA announced last week an increased enforcement of workplace heat hazards, starting immediately.  Finally, affirmative action requirements for veterans and the disabled remains fully in place due to the underlying statutes, but the Trump Administration has again proposed moving enforcement from OFCCP (which would be defunded) to the Office of Civil Rights. 

Last month, ICE issued enforcement guidance for employers explaining how ICE conducts I-9 form inspections and the ramifications for employers with sloppy records and/or failure to correct technical and other failures.    It is happily well written.  It confirms that employers have 3 days to produce I-9 forms requested by ICE.  “An employer may receive a monetary fine for all substantive violations and uncorrected technical or procedural failures.”  Following an inspection, the employer will receive one of three types of notices which reflect the outcome of the audit.   It also includes a list of “substantive paperwork violations,” (i.e., missing or incomplete fields) which now include the failure to fully complete certain areas of the I-9 form, such as the employee’s date of birth, the date the employee signed the form, incomplete information about the translator (if any), date of hire, date of employer certification, etc.  It also lists examples of technical failures and a description of how fines are calculated.

Last week, OSHA updated its National Emphasis Program for indoor and outdoor heat hazard prevention which provides additional guidance to avoid citations and expands the list of targeted industries.  This will be particularly important during heat waves.    Among other things, OSHA will conduct random inspections of targeted industries during heat waves to ensure compliance.  This initiative began in 2022.  The OSHA new release explained “OSHA identified industries with high rates of heat-related illness and industries with employers that have received heat-related citations or hazard alert letters.” The target lists includes farming, various manufacturers, sawmills, metal production and processing foundries, grocery and related product merchant wholesalers, department stores, air transportation, general freight trucking, couriers, messengers, and delivery services, warehouses, landscapers, community food and housing, automotive repair and maintenance, construction, greenhouses and nurseries, and restaurants.

Trump’s proposed budget again intends to defund OFCCP entirely, which will require amendments to the underlying statutes for Section 503 and VEVRAA, as well as the applicable regulations, which assign enforcement to OFCCP.  This was also proposed in last year’s budget, but was not adopted by Congress.   Employers should remember that although Executive Order 11246 (women and minorities) was rescinded in January 2025, the affirmative action obligations for the disabled and veterans remain fully in place.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

New and Shorter I-9 Form Must Be Used As of November 1

The U.S. Citizenship and Immigration Services office (CIS) of the Department of Homeland Security (DHS) announced over the summer revisions to the I-9 form which all employers must complete within three days after hiring any new employee. The CIS instructs that all employers begin using the new form for all new employees hired after November 1, 2023.

According the CIS, [a]mong the improvements to the form is a checkbox employers enrolled in E-Verify can use to indicate they remotely examined identity and employment authorization documents under an alternative procedure authorized by the Department of Homeland Security (DHS).” In order “[t]o participate in the remote examination of Form I-9 documents under the DHS-authorized alternative procedure, employers must be enrolled in E-Verify, examine and retain copies of all documents, conduct a live video interaction with the employee, and create an E-Verify case if the employee is a new hire.” The details for utilizing the alternative procedure are set out in the Federal Register.

The CIS also reports that in addition, ‘[t]he revised Form I-9: 

· Reduces Sections 1 and 2 to a single-sided sheet;

· Is designed to be a fillable form on tablets and mobile devices;

· Moves the Section 1 Preparer/Translator Certification area to a separate, standalone supplement that employers can provide to employees when necessary;

· Moves Section 3, Reverification and Rehire, to a standalone supplement that employers can print if or when rehire occurs or reverification is required;

· Revises the Lists of Acceptable Documents page to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation;

· Reduces Form instructions from 15 pages to 8 pages; and

· Includes a checkbox allowing employers to indicate they examined Form I-9 documentation remotely under a DHS-authorized alternative procedure rather than via physical examination.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

USCIS Issues New I-9 Form For Employers

On Friday, March 8, 2013, the federal Citizenship and Immigration  Services (USCIS) published in the Federal Register a new version of the I-9 form which all employers must complete upon hiring a new employee to confirm their identity and that they may lawfully work in the United States.  Although the new, two-page form is longer than the old form and may be used immediately, employers are not mandated to begin using the new form until May 7, 2013 (at which time the older versions of the form are no longer valid for newly hired employees). Employers are not required to (and should not as a general matter) complete the new form for current employees unless a separate re-verification requirement exists for that employee.    The new form contains optional fields for the employee’s email address and phone number.  It also revises the format of the current form, lengthens the instructions, and contains a field for the employee’s foreign passport number, etc.  Failure to complete and retain the I-9 forms can subject an employer to financial and criminal penalties.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

New I-9 Form FINALLY Goes Into Use on Friday, April 3, 2009

After fits and starts, the Obama Administration has apparently finally blessed the new I-9 form which the Bush Administration announced in December 2008. All employers must begin using the new I-9 form on Friday, April 3, 2009 for all new employees who begin work as of that date.

As faithful readers may recall, USCIS announced in December 2008 that a new I-9 form would become mandatory for all employers on February 2, 2009. However, this new I-9 form was not placed on the USCIS website until the end of January 2009 – days after the Obama inauguration and only days before the mandatory deadline. Then, on Friday, January 30, 2009 -- only a week later and only one business day before the new form became mandatory -- the Obama administration announced that employers could not use the new form until April 3, 2009. Indeed, the new administration re-opened the review and public comment period on the I-9 form revisions until March 3, 2009.

Even though it is entirely possible that the Obama Administration will again pull the rug out from under us with only one day to go before the April 3 deadline, I am willing to risk a prediction that the form can now be used by employers on Friday.

Insomniacs can access the new I-9 form at http://www.uscis.gov/files/form/I-9_IFR_02-02-09.pdf. There are also Spanish versions available on the USCIS.gov website.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Employers Must Begin Using Another New I-9 Form Beginning on Monday, February 2, 2009.

NOTICE: This information was superceded on January 30, 2009. See posting on February 2, 2009.

On December 11, 2008, the Citizenship and Immigration Service (CIS) announced that it had submitted to the Federal Register an interim final rule which would streamline the I-9 process and yet again revised the I-9 form. According to the CIS, “[t]he interim final rule narrows the list of acceptable identity documents and further specifies that expired documents are not considered acceptable forms of identification. An expansive document list makes it more difficult for employers to verify valid and acceptable forms and single out false documents compromising the effectiveness and security of the Form I-9 process. The changes included in the interim final rule will significantly improve the security of the employment eligibility verification process.” However, it has taken until late January for the CIS to finally place the new I-9 form on its website for employers to download and begin using next week.

In particular, the new “rule eliminates Forms I-688, I-688A, and I-688B (Temporary Resident Card and older versions of the Employment Authorization Card/Document) from List A. USCIS no longer issues these cards, and all that were in circulation have expired. The rule also adds to List A of the Form I-9 foreign passports containing specially-marked machine-readable visas and documentation for certain citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI). The rule makes other, technical changes to update the list of acceptable documents. The revised Form I-9 includes additional changes, such as revisions to the employee attestation section, and the addition of the new U.S. Passport Card to List A. “

Insomniacs can review the CIS press release in full at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=9ad43f347a62e110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The pending interim final rule can be reviewed in full at http://edocket.access.gpo.gov/2008/E8-29874.htm. The new I-9 form to be used only after February 2, 2009 can be downloaded from
http://www.uscis.gov/files/form/I-9_IFR_02-02-09.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

New I-9 Form Must Now Be Used By All Employers.

The U.S. Citizenship and Immigration Services office (CIS) of the Department of Homeland Security (DHS) has announced revisions to the I-9 form which all employers must complete within three days after hiring any new employee. The new form removes certain forms of acceptable identification and adds others in compliance with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The CIS instructs that all employers begin using the new form for all new employees hired after November 7, 2007, but will not penalize non-conforming employers (who continue to use the old I-9 form) until 30 days after a notice has been published in the Federal Registrar.

According the CIS, “five documents have been removed from List A of the List of Acceptable Documents:
o Certificate of U.S. Citizenship (Form N-560 or N-561)
o Certificate of Naturalization (Form N-550 or N-570)
o Alien Registration Receipt Card (I-151)
o Unexpired Reentry Permit (Form I-327)
o Unexpired Refugee Travel Document (Form I-571).”

The CIS also reports that an additional “document was added to List A of the List of Acceptable Documents: Unexpired Employment Authorization Document (I-766)” According to the CIS, “[t]he revised list now includes: a U.S. passport (unexpired or expired); a Permanent Resident Card (Form I-551); an unexpired foreign passport with a temporary I-551 stamp; an unexpired Employment Authorization Document that contains a photograph (Form I-766, I-688, I-688A, or I-688B); and an unexpired foreign passport with an unexpired Arrival-Departure Record (Form I-94) for nonimmigrant aliens authorized to work for a specific employer.”

In addition, the CIS reports that “[a]ll the Employment Authorization Documents with photographs that are in circulation are now included as one item on List A: I-688, I-688A, I-688B, I-766.”

Finally, the CIS explains that “[i]nstructions regarding Section 1 of Form I-9 now indicate that the employee is not obliged to provide the Social Security Number in Section 1 of Form I-9, unless he or she is employed by an employer who participates in E-Verify. The section on Photocopying and Retaining Form I-9 now includes information about electronically signing and retaining I-9 forms.”

A copy of the new I-9 form is available to be printed and copied from the CIS website at http://www.uscis.gov/files/form/I-9.pdf. The full CIS press release can be accessed at http://www.uscis.gov/files/pressrelease/FormI9FS110707.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.