The U.S. Department of Homeland Security (“DHS”) issued a notice of proposed rulemaking to allow for optional alternative procedures for the examination of documents required by the Form I-9 Employment Eligibility Verification.

The COVID-19 pandemic has made the remote workplace a common phenomenon, which in turn made an already complicated I-9 process a logistical nightmare. With the U.S. government’s declaration of a national emergency due to the COVID-19 pandemic, DHS and Immigration and Customs Enforcement (ICE) announced certain flexibilities in March 2020. Currently, to complete the Form I-9, employers must physically examine documentation presented by new employees within three business days after the first day of employment to ensure that the documents appear to be genuine and to relate to the new employee. On March 20, 2020, ICE announced that the physical examination requirements for completing the Form I-9 were being deferred due to the COVID-19 pandemic. Per the announcement, an employer, or an authorized representative acting on the employer’s behalf, could inspect Form I-9 documents remotely (over video link, fax or email) within three business days of the new employee’s first day of employment. The employer was required to obtain, inspect and retain copies of the documents and then enter “COVID-19” as the reason for the delayed physical examination in Section 2 of the Form I-9. Once normal operations resumed, the employer would then be required to physically examine the documents and Section 2 of the Form I-9 by entering the notation “documents physically examined” and the date of inspection. These flexibilities have been extended several times and currently expire on October 31, 2022.

While DHS says it is considering making these temporary flexibilities permanent, the Notice of Proposed Rule Making (NPRM) published last month seeks to validate the authority of the DHS secretary to enact flexibilities, offer alternative options, and/or implement a pilot program to evaluate existing and additional alternative I-9 procedures for some or all employers. DHS recognizes that more and more employers are utilizing telework and remote work for their employees and that requiring in-person review of I-9 documents is no longer consistent with work patterns of many businesses.

DHS is considering some of the following options for alternative procedures for the examination of I-9 documents:

• Imposing some or all of the document retention requirements applicable to the remote examination process introduced during the COVID-19 pandemic.

• Adding a fraudulent document detection and/or an anti-discrimination training requirement for employers.

• Limiting the eligible population to employers who have enrolled, and are participants in good standing, in E-Verify.

• Limiting the eligible population to employers who have not been the subject of a fine, settlement or conviction related to employment eligibility verification practices.

DHS is requesting comments related to anticipated costs, increased burdens, and the population of employers eligible to benefit from alternative procedures for the examination of documents. Comments to the NPRM are due on or before Oct. 17, 2022.

Employers should be aware of potential changes to Form I-9 procedures to ensure continued compliance.