On August 18, 2022, the Department of Homeland Security (DHS) published a Proposed Rule titled Optional Alternatives to the Physical Document Examination Associated With Employment Eligibility Verification (Form I-9). The Proposed Rule would formalize the authority of the Secretary of Homeland Security to extend certain COVID-19 rules permitting remote inspection of employee documents presented for the Form I-9 and further explore alternative options to physical document examination procedures in the future.  The Proposed Rule comes on the heels of the shift to remote working and hybrid schedules that have become increasingly common.  DHS is accepting comments from the public on the Proposed Rule until October 17, 2022.

Background

U.S. employers are required to complete a Form I-9 for each new hire. As part of the Form I-9 process, the employer must physically examine the documents presented by the employee for employment eligibility purposes.  Starting on March 20, 2022, however, DHS deferred the physical inspection requirements associated with the Form I-9 process only for those workers fully working remotely in response to the COVID-19 pandemic.  This I-9 Requirement Flexibility has been extended by DHS until October 31, 2022.

The Proposed Rule

The Proposed Rule seeks to create a more permanent framework under which the Secretary of Homeland Security could authorize alternative options for Form I-9 document examination procedures for some or all employers. Such alternative procedures may be implemented as part of a pilot program, upon a determination that the procedures offer an equivalent level of security, or as a temporary measure to address public health emergencies.

While the Proposed Rule would grant the agency authority to create alternatives to the physical document examination requirement associated with Form I-9, the Proposed Rule itself does not create any such alternatives. In effect, the Proposed Rule simply seeks to give DHS discretion to establish alternative options for document examination during the Form I-9 process.

Key Points

• Changes, if any, in the Form I-9 physical document examination procedures will be reflected in a revision to the language currently in 8 CFR § 274a.2(b) and (c). According to the Proposed Rule, the revision would include additional language in paragraphs (b)(1)(ii)(A), (b)(1)(vii), and (c)(1)(ii) stating that an alternative procedure may be authorized by the Secretary for examining the documentation presented by individuals to establish identity and/or employment authorization when completing a Form I-9 when they are hired, reverified, or rehired.
• DHS is proposing changes to the Form I-9 and its accompanying instructions that would allow employers to indicate that alternative procedures were used.
• DHS is considering various document retention requirements, including requiring employers to retain copies of any documents presented remotely via video, fax, or email. DHS requests comments on any costs or increased burden for employers to retain such documentation, as well as comments on the benefits, costs, or any burdens for employees related to such document retention.
• The Form I-9 changes would allow Immigration and Customs Enforcement (ICE), when conducting an audit, to know that the employer used alternative verification procedures.
• DHS is considering adding a fraudulent document detection and an anti-discrimination training requirement for employers. For example, an employer using the alternative procedure may need to take a 30-60-minute online training on detecting fraudulent documents remotely and avoiding discrimination in the process.

DHS will review all comments submitted by October 17, 2022, and will ultimately issue a Final Rule.  If an employer would like to weigh in on this Proposed Rule during the comment period, both McGuireWoods attorneys and consultants are available to help.  McGuireWoods will also be monitoring this issue and will provide an update after DHS publishes the Final Rule, including potential implications for employers.