Remote Review of Forms I-9 Could Become Permanent

Author: Michael Cardman, Brightmine Legal Editor

August 18, 2022

The Department of Homeland Security (DHS) today proposed to give itself the authority to allow "alternative options for document examination procedures."

These "alternative options" could include making permanent a temporary exemption that allows employers to remotely examine employees' identity and employment authorization documents for the Form I-9.

For years, employers have been required to physically examine new hires' documentation within three business days after their first day of employment.

But in March 2020, as more and more employees began working remotely at the onset of the coronavirus (COVID-19) pandemic, DHS temporarily granted employers the flexibility to inspect Form I-9 documents remotely (e.g., over video link, fax or email). Since then, DHS has extended that flexibility several times - most recently through October 31, 2022.

DHS stressed that its proposal would not actually create "alternative options," but would instead formalize the agency's authority to extend flexibilities, provide alternative options, or conduct a pilot program to further evaluate an alternative procedure option. DHS said it would introduce any such alternative procedure in a future Federal Register notice that would include the parameters for the alternative procedures, any applicable conditions for participation and for how long the alternative procedures would be available.

DHS Seeks Employer Input

DHS said it welcomes comments from employers, especially about:

  • A possible requirement that employers retain copies of any documents presented remotely via video, fax or email;
  • Potential training requirements for employers about detecting fraudulent documents and/or avoiding discrimination; and
  • Employers' eligibility for remote review and other alternative procedures, including potential exclusions of employers that are not enrolled in E-Verify and/or employers that have been the subject of a fine, settlement or conviction related to employment eligibility-verification.

Employers have until October 17, 2022, to submit a comment. Comments may be submitted online at Regulations.gov under docket number ICEB 2021-0010. Comments submitted in any other manner, including emails or letters sent to DHS, will not be accepted.

DHS will consider all comments and materials received during the comment period and may change its final rule based on the comments.