DHS May Make Employers’ Virtual Inspection of Form I-9 Original Documentation Permanent Option

Jackson Lewis P.C.
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The Department of Homeland Security (DHS) is considering making a change which would permanently allow the flexibility it has extended over employers’ verification of employees’ identity and employment eligibility since March 2020.

Historically, Form I-9 has required employers to physically inspect original documentation presented by employees in a face-to-face interaction. Over the years, workforces have become increasingly remote, and the COVID-19 pandemic has sped up the trend. In reaction to the COVID-19 emergency, the government temporarily lifted the in-person I-9 document inspection requirement, allowing a virtual I-9 process. Employers are exempted from the in-person document verification requirements associated with Form I-9 Employment Eligibility Verification until October 2022.

The virtual I-9 process proved to be popular with many employers and employees, who provided hundreds of supporting comments in response to a Request for Information last fall. Likely in reaction to this, in its Fall 2021 Regulatory Agenda, DHS included the Optional Alternative to the Physical Examination Associated with Employment Eligibility Verification rule. It stated in the summary:

“DHS plans to propose to revise employment eligibility verification regulations to allow the Secretary to authorize alternative document examination procedures in certain circumstances or with respect to certain employers. Future exercises of such authority may reduce burdens on employers and employees while maintaining the integrity of the employment verification process.

Employers have long-observed that conducting Form I-9 verification virtually allows companies to centralize their I-9 processes so that experienced staff can conduct all the reviews.   Employers also believe that a virtual process eliminates barriers to hiring individuals for whom remote work is a necessity, such as those who live in rural areas or have physical disabilities that make it impossible to attend an in-person I-9 verification.

Many questions remain about the possible new rule:

  • Under what circumstances will flexibility be allowed?
  • Will this apply to all employers or only to some based upon size, industry, or past compliance records?
  • Will there be a quid pro quo such as requiring the use of E-Verify or enrollment in the IMAGE program?
  • Will a fee or a fee structure be involved?
  • Will staff training be required?
  • Will there be more audits and investigations?

The government has not set a timeline to finalize a new rule on a virtual I-9 process. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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