A new rule proposed by the Department of Homeland Security (DHS) would permit the Secretary of Homeland Security to authorize alternative procedures for inspecting identity and work authorization documents required by Form I-9 for some or all employers. If adopted, employers will be provided with other temporary or permanent options to complete Form I-9 in addition to the in-person document inspection requirements. As a result, employers may be able to continue utilizing the remote virtual inspection process implemented by DHS towards the start of the Covid-19 pandemic.
DHS originally announced flexibility in completing Form I-9 on March 20, 2020, in response to the Covid-19 pandemic. Guidance provided by DHS only requires that employers inspect a worker’s Form I-9 identity and employment eligibility documents in-person for those workers “who physically report to work at a company location on any regular, consistent, or predictable basis.” Employees hired on or after April 1, 2021, that work exclusively in a remote setting due to an employer’s COVID-19 related precautions, are temporarily exempt from Form I-9’s physical inspection requirements until the employee returns to, “non-remote employment on a regular, consistent, or predictable basis,” or DHS terminates the current exception permitting remote virtual flexibilities, whichever is earlier.
As a result, employers, on a case-by-case basis, are permitted to inspect a new hire’s employment authorization documents remotely by virtual means. Previously, those documents would have been physically inspected in person. Virtual inspection includes review via video call, web-based video conferencing, fax, and email. Employment authorization documents must be virtually obtained and inspected within three days of the new hire’s first date of employment. DHS’s temporary policy permitting remote virtual flexibility is currently set to expire on October 31, 2022, at which point employers must correct any I-9s completed virtually based on the current guidance.
In 2021 DHS solicited public input concerning Form I-9 document examination practices. Most respondents advocated for a remote document examination option as it would alleviate the burdens on employers and employees associated with in-person physical inspection of documents. DHS recognizes that work practices have evolved, and remote work has become increasingly common. The U.S. Bureau of Labor Statistics reported that almost one in four people teleworked or worked at home for pay because of the pandemic. As a result, DHS is exploring options, “including making permanent some of the current Covid-19 pandemic-related flexibilities to examine employees’ identity and employment authorization documents for the Form I-9.”
On August 18, 2022, DHS published the proposed rule in the Federal Register for public comment. If the rule takes effect, the Secretary will have the authority to authorize alternative document inspection procedures (1) as part of a pilot program; (2) upon the Secretary’s determination that such procedures offer an equivalent level of security; or (3) as a temporary measure to address a public health emergency. Any changes implemented by DHS could be permanent or temporary depending on the situation and apply to all or only specific employers depending on the circumstances necessitating the change.
An opportunity for public comment on the proposed rule is available through October 17, 2022. The issues addressed in the rule where DHS has requested public feedback concerning the benefits and costs associated with changes to the Form I-9 process include:
- Modifying Form I-9 to permit an employer to indicate if it inspected documents remotely;
- Changes to document retention requirements concerning those documents inspected virtually;
- Imposing training requirements on employers regarding topics such as fraudulent document detection or anti-discrimination measures;
- Requiring that employers enroll in E-Verify to utilize any alternate procedures; and
- Limiting the availability of alternate procedures to those employers who have been subject to employment eligibility violations.
DHS notes, “while this proposed rule would not directly authorize remote document examination, it would create a framework under which DHS could pilot various options, respond to emergencies similar to the Covid-19 pandemic, or implement permanent flexibilities upon a specific determination as to level of security, including, but not limited to, fraud risk.” Employers are encouraged to submit comments on the entirety of this proposed rule, identified by Docket No. ICEB-2021-0010, through the Federal eRulemaking Portal.