DHS Proposed Chanes to The Form I-9
On August 18, 2022, the Department of Homeland Security (DHS) published a proposed rule in the Federal Register titled Optional Alternatives to the Physical Document Examination Associated with Employment Eligibility Verification (Form I-9). This proposed rule will grant broader authority to permit alternative document inspection procedures for I-9 document verification in lieu of the physical inspection requirement.
In response to the COVID-19 pandemic, DHS implemented temporary accommodations for remote I-9 document inspection in order to encourage social distancing and remote work. These accommodations have been extended several times, and currently remain in effect until October 31, 2022. While the proposed rule does not directly make these accommodations permanent, it does codify into the regulations the agency’s authority to set forth either temporary or permanent alternative document inspection procedures.
The rule does not aim to directly authorize remote document examination. Rather, the agency may authorize alternative examination procedures with respect to some or all employers, and such procedures may be:
part of a pilot program;
implemented upon a determination that the procedures offer a sufficient level of security and address fraud risks; or
as a temporary measure to respond to public health and national emergencies.
Highlights:
Revised Form I-9 to include a box for employers to check to reflect the use of alternative identity and employment authorization verification procedures. The change would permit DHS to tailor audits according to the verification procedure identified by the employer.
The Rule contemplates mandatory fraud document training and anti-discrimination training for employers, such as a 30- to 60-minute online training for employers who use an alternative procedure.
The agency may establish criteria or conditions for employers to participate in future programs that do not require the physical examination of Form I-9 documentation. For example, a program might be limited to employers who are enrolled and in good standing in DHS’s E-verify system, or a program might be unavailable to employers who have been subject to civil or criminal penalties for failing to comply with federal I-9 requirements.
The notice emphasizes that DHS is interested in receiving comments to understand the benefits, costs, and burdens the proposed changes would create for the public.
Now that the proposed rule has been published in the Federal Register, the public will have a 60-day comment period (ending on October 17, 2022) to provide feedback on the proposal as well as comments on how DHS may use this additional authority to make I-9 document inspection easier for employers. After the public comment period closes, DHS will have the opportunity to review and analyze all comments provided and, should the agency decide to move forward with the regulation, proceed with publishing the final rule.