The Department of Homeland Security (DHS) is seeking public comment on its proposed changes to I-9 document examination requirements. While the proposed rule would not directly authorize the remote examination of I-9 documents, it would create a framework under which DHS could pilot various options, respond to emergencies similar to COVID-19, or implement permanent alternatives to in-person inspection upon finding that such procedures offer an equivalent level of security.

The deadline for submitting comments to the proposed rule is October 17, 2022. We encourage employers to provide comments to DHS to encourage flexibility in allowing remote inspection of I-9 documents.

Background

Since March 2020, DHS has repeatedly extended flexibility relating to in-person Form I-9 compliance. These flexibilities, which are currently in effect until October 31, 2022, have allowed employers whose entire workforce is working remotely to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9). The flexibilities also apply to any employees hired on or after April 1, 2021, who work exclusively in a remote setting due to COVID-19-related precautions, until they undertake non-remote employment on a “regular, consistent, or predictable basis.”

Under these temporary flexibilities, qualifying employers are not required to review employees’ identity and employment authorization documents in person, and may instead inspect these documents remotely, using “video link, fax or email, etc.” Employers must also comply with document retention and re-verification requirements discussed in more detail here.

While employers have welcomed these temporary flexibilities in a remote hiring and working environment, DHS’s practice of extending the short-term measures at the last minute has created significant uncertainty for employers, particularly those that have permanently adopted fully remote or hybrid work environments. By introducing a mechanism for adopting certain flexibilities on a permanent basis, DHS is recognizing that the shift to remote work spurred by the COVID-19 pandemic is likely here to stay.

Scope of the Proposed Rule

DHS is encouraging employers to submit comments on the associated burdens and benefits of the proposed changes to I-9 document inspection, which are summarized below:

1. Employer Eligibility Requirements: DHS is considering options with respect to the population that will be eligible to utilize future alternative procedures and has requested comments on such options. For example, one option DHS is considering is to limit eligibility to only employers who have enrolled, and are participants in good standing, in E-Verify. A second option may be to place some limits on employers who have been the subject of a fine, settlement, or conviction related to employment eligibility verification practices.

2. Employer Training Requirements: DHS is considering adding a fraudulent document detection or an anti-discrimination training requirement, or both, for employers. Specifically, an employer or authorized representative who uses an alternative procedure may be required to take a 30- to 60-minute online training on detecting fraudulent documents remotely and avoiding discrimination in the process.

3. Document Retention Requirements: DHS is weighing whether to impose some or all of the document retention requirements applicable to the remote examination process during the temporary flexibilities period discussed above. These flexibilities require employers to retain copies of the documentation employees choose to present, whether in-person or remotely, via video, fax, or email.

4. Changes to Form I-9: DHS expects that any future alternative procedures for I-9 document inspection may require employers (or agents) to indicate whether documents were examined consistent with such alternative procedures. Therefore, DHS is proposing changes to Form I-9 and its accompanying instructions that would allow employers to indicate that they used alternative procedures. Specifically, DHS is proposing adding a box to the Form I-9 so that if an alternative procedure were used for either Section 2 or Section 3, an employer would select to indicate that the employee's documentation was examined consistent with the alternative procedures.

DHS has requested comments on the above proposals regarding benefits, burdens, and increased costs to employers that result from the existing I-9 procedure or potential changes.

Mintz encourages employers and stakeholders to submit comments to DHS in response to the proposed rulemaking.

Sample Comment to DHS

Because the volume of comments received in connection with this proposal can impact DHS’s decisions about the final rule, we encourage employers to submit comments to DHS. The link to the proposed rule has a green hyperlink titled, “SUBMIT A FORMAL COMMENT.”  Employers may use the following language as a sample for comments to DHS:

“We urge DHS to permanently extend flexibility in allowing remote inspection of I-9 documents. Remote inspection of I-9 documents should be available to all employers and not have any restrictions or mandates. In-person inspection of I-9 documents creates significant burdens for our company when hiring remote employees. The process of identifying an agent to complete an I-9 form on our company’s behalf is burdensome to our company and to new hires, and often delays the process of onboarding new talent.”