DHS Seeks Comments on I-9 Process

Jackson Lewis P.C.

The decades-old I-9 Employment Eligibility Verification process may be in for some changes. The Department of Homeland Security is requesting “public input” regarding the document examination process.

Employers interested in the permanent continuation of Form I-9 flexibility might be encouraged by the agency’s official announcement on October 26, 2021. While the request is for “information and program-planning purposes” and any changes would be at the agency’s sole discretion, changes may be considered as long as they “offer an equivalent or higher level of security.” These changes likely are part of the administration’s move toward modernization in the I-9 process.

Since March 2020, companies that have been operating remotely due to the COVID-19 emergency have been able to inspect Section 2, Form I-9 documents virtually, over video link, or by fax or email. In April 2021, the DHS clarified that, for companies continuing to operate at least partially remote due to COVID-19, in-person inspection applied only to employees who report to work at a company location on a “regular, consistent or predictable basis.” DHS announced that the ongoing flexible procedures would continue at least through December 31, 2021. The agency now appears to be considering making some remote I-9 procedures permanent.

Through the Request of Information, DHS seeks comments from employers of all sizes, trade groups, recruiting and onboarding organizations, researchers, policy experts, and other members of the public. The department has identified certain questions for guidance purposes but notes that the list is non-exhaustive. The questions range from those geared toward understanding employers’ experiences with the technology involved in I-9 flexibility to those about the results from subsequent E-Verify or physical examinations. DHS wants to know how often the subsequent results were inconsistent with the remote examinations in determining whether the documents presented were genuine and, in fact, relate to the person presenting the documents for inspection.

DHS also is interested in finding out how many employers successfully used “authorized agents” for verification purposes due to COVID-19. Further, it wants to know whether conditions on using flexibility (such as required enrollment in E-Verify, document or image quality requirements, document retention requirements, or required training) would “impact an employer’s desire or ability to utilize” flexibility.

Public input is due within 60 days, or by December 27, 2021. F

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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