A new rule proposed by the Department of Homeland Security (DHS) would allow the Secretary of Homeland Security to authorize alternative procedures to inspect identity and work authorization documents required by Form I-9 for certain or all employers. If passed, employers will be offered other temporary or permanent options for completing Form I-9 in addition to the in-person document inspection requirements. As a result, employers may be able to continue to use the remote virtual inspection process implemented by DHS around the onset of the Covid-19 pandemic.
DHS originally announced flexibility to complete Form I-9 on March 20, 2020, in response to the Covid-19 pandemic. The guidelines provided by DHS only require employers to inspect a worker’s Form I-9 identity and employment eligibility documents in person for workers “who physically report for work at the job site. business on a regular, consistent or predictable basis”. Employees hired on or after April 1, 2021, who work exclusively in a remote environment due to an employer’s Covid-19 precautions, are temporarily exempt from Form I-9 physical inspection requirements until that the employee returns to “non-remote employment on a regular, consistent, or foreseeable basis,” or DHS terminates the current exception allowing virtual remote flexibilities, whichever comes first.
Accordingly, employers, on a case-by-case basis, are permitted to view a new employee’s work authorization documents remotely through virtual means. Previously, these documents would have been physically inspected in person. Virtual inspection includes examination via video call, web video conference, fax and email. Employment authorization documents must be obtained and inspected virtually within three days of the new employee’s first hire date. DHS’s temporary policy allowing virtual remote flexibility is currently set to expire on October 31, 2022, at which time employers must correct any I-9s completed virtually based on current guidelines.
In 2021, DHS sought public comment regarding Form I-9 document review practices. Most respondents favored a remote document review option, as it would alleviate the burden on employers and employees associated with physically inspecting documents in person. DHS recognizes that work practices have evolved and remote work has become increasingly common. The US Bureau of Labor Statistics reported that nearly one in four people are telecommuting or working from home for pay due to the pandemic. As a result, DHS is exploring options, “including making permanent some of the current flexibilities related to the Covid-19 pandemic to review employee identification and employment authorization documents for Form I-9.”
On August 18, 2022, DHS posted 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 these procedures provide 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 to certain employers depending on the circumstances necessitating the change.
An opportunity for public comment on the proposed rule is available through October 17, 2022. Issues addressed in the rule where DHS has sought public comment regarding the benefits and costs associated with changes to the Form I-9 process include :
- Amended Form I-9 to allow an employer to indicate whether they inspected documents remotely;
- Changes to document retention requirements for documents inspected virtually;
- Imposing training requirements on employers on topics such as detection of fraudulent documents or anti-discrimination measures;
- Require employers to register with E-Verify to use any other procedure; and
- Limit the availability of alternative procedures to employers who have been subject to employment eligibility violations.
DHS notes that “while this proposed rule would not directly authorize remote document review, it would create a framework within which DHS could pilot various options, respond to emergencies similar to the Covid-19 pandemic, or put implemented ongoing flexibilities on 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 File No. ICEB-2021-0010, via the Federal Electronic Rulemaking Portal.