Form I-9 Alert: DHS considering alternative options for examination of I-9 documents for remote employees

Maggio Kattar

DHS recently announced via Federal Register that they are considering a new rule/pilot program that would provide options to Form I-9 rules regarding the examination of documents presented as evidence of identity and work authorization upon hire and reverification of continuing of work authorization, as applicable.

Many employers implemented remote work options for their employees as part of their COVID-19 pandemic response policies. In support of these policies, on March 20, 2020, DHS issued a temporary rule authorizing the deferral of the Form I-9 rules requiring examination of original documents and examination of such documents in the employee’s physical presence. These requirements must still be met by employers within the sooner of 3 days of the employee’s return, on a consistent and reliable basis, to the office, or within 3 days following the end of the temporary rule. This option was only provided for employers while they were functioning with all employees working remotely, however, DHS advised that they would evaluate an employer’s compliance regarding their Form I-9 completion practices on a case-by-case basis. This temporary rule is currently set to expire on October 31, 2022 (although it has been extended multiple times).

In recognition that such remote work arrangements may become permanent for employers, the new rule under consideration would permit qualifying employers, and their authorized representatives, to review documents virtually for remote employees if certain requirements are met, to include:

  1.  A new, mandatory, field would be added to the Form I-9 for employers to indicate if an alternative review process was used; and
  2. Employers must retain copies of documents reviewed remotely via video, fax, or e-mail; and
  3. Employers must complete a 30–60-minute training on detecting fraudulent documents; and
  4. Employers must participate in E-Verify,

The proposed rule would also provide broader authority to DHS to authorize these proposed changes.

Per the normal process, DHS is providing a 60-day period for public comments regarding the proposed rule. Following this 60-day period, DHS will consider all comments provided and determine if and how they wish to proceed with a final rule.

Maggio Kattar will continue to follow, and provide updates, on developments with respect to this policy change.