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DHS Considering Permanent Option for I-9 Remote Document Examination, Seeks Feedback from Employers

As the COVID-19 pandemic swept across the US last year, the Department of Homeland Security (DHS) did something that many I-9 policy experts once considered unthinkable – they relaxed the agency’s rules for examining identity and work authorization documents in person, allowing a so-called “virtual verification” of the documents by video, email, or fax, followed by a physical inspection at a later time.

By many accounts, this flexible policy has been very popular with employers, especially those in industries that are now routinely hiring new associates to work remotely from their living rooms, garages, or elsewhere. In many cases, these employees can be hired, onboarded, and immediately start work without ever setting foot in the employer’s offices.

The program’s Achilles heel, however, has been its temporariness. Originally implemented for only 60 days, virtual verification has now been extended multiple times – currently valid until the end of the year. And each time the program is extended, DHS reminds employers that it’s a temporary thing and warns that the program could end at any minute.

The fact that virtual verification (in its current form) is merely a “deferment” of the physical inspection process was another major drawback for many employers, who were concerned about the additional tracking obligations and follow-up requirement. These employers have largely adopted the use of an authorized representative for their remote hires in order to maintain a “one and done” protocol for their I-9 processing.

But what if the government were to offer a “next-generation” remote inspection process that doesn’t end after all? Or rather, morphs into something different, a “permanent” remote inspection process that replaces the in-person physical inspection requirement altogether? How would that impact employers and the I-9 process as a whole? And what additional “strings” would the government attach to such a program?

As it turns out, these are not just theoretical questions from an I-9 policy nerd (that would be me)….but an actual directive from the DHS to all of you! That’s right, the DHS wants to hear from you about your experiences with remote I-9 inspection during the last 19 months and ideas for a permanent expansion of the program.

DHS Seeks Public Input

Today, DHS posted a request for public input on its website, seeking “alternative options” for physical document examination that offer an equivalent or higher level of security for I-9 purposes. In order to gather your feedback, they will be publishing a 60-day “Request for Public Input” in tomorrow’s Federal Register – you can see an unpublished version here.

To facilitate and guide your commenting process, they also included a series of questions that you can choose to answer (I’ve reproduced those questions here for easy review).

In a nutshell, they want to hear about your experiences using the program – including what worked and what didn’t work.  If you used video or secure document upload for remote inspection, did you ever have to deal with poor quality, fuzziness, or other technical issues? DHS wants to know.

Did you ever reject a remotely examined document, either during the virtual review or later in person? DHS would LOVE to know that too.

And if you’re using E-Verify, did you ever find that the system gave you an “Employment Authorized Result” but the documents themselves looked kinda fishy? Inquiring minds…

Permanent Remote Inspection Option

DHS also wants to hear your thoughts and suggestions on a “permanent” remote inspection option that would potentially eliminate the need for a physical in-person inspection of documents during the I-9 process and facilitate the centralization of I-9 processing. The questions they posed are very interesting, providing a brief glimpse into the potential structure and “strings attached” for employers that want to use remote document inspection in the future.

In particular, DHS asks employers for their opinions about the following “participation requirements” and whether they would impact an employer’s desire or ability to use remote inspection:

  • Required enrollment in E-Verify
  • Document or image quality or retention requirements
  • Required completion of training offered by DHS

According to sources, that last requirement (DHS training) may involve membership in ICE’s IMAGE program, a condition that may prove unpalatable to organizations that do not want to subject themselves to an I-9 inspection (which has long been an IMAGE requirement).

But who knows? The agency may be flexible on the I-9 audit requirement or offer other sweeteners to the program. Time will tell.

Technology to the Rescue

DHS is also looking for potential technology solutions that would enable employers to verify that remotely examined documents appear to be genuine and to relate to the individual presenting them. Immigration and Customs Enforcement (ICE) has been particularly concerned about data security and fraud prevention, noting that it may be harder for an employer to spot fake documents that are inspected virtually rather than through an in-person tactile review.

Fortunately, leading technology companies such as Hyland Software (maker of Guardian Electronic I-9 system) have made recent advancements in document capture with “human-like intelligence” that paves the way for an automated review of an I-9 document with a higher level of confidence relating to its authenticity and validity. Utilizing such technology, employers may soon be able to fully automate their employment eligibility process, should DHS make good on its promise to consider changes to a process (the Form I-9) that is now clearly showing its age.

Next Steps

Starting tomorrow (October 26, 2021), the public can submit comments by visiting the Federal eRulemaking Portal (http://www.regulations.gov) and searching for docket number USCIS-2021-0022. All written comments are requested on or before December 27, 2021. Comments submitted in a manner other than the one listed above, including emails or letters sent to DHS or USCIS officials, may not be reviewed by DHS.

Have questions about this alert? Please drop us a line. And if you’d like to learn more about the Guardian Electronic I-9 and E-Verify system which simplifies and standardizes I-9 compliance, you can contact us here.

About John Fay

John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as President at the LawLogix division of Hyland Software, Inc., where he oversees all aspects of the division’s operations and provides strategic leadership and direction in the development and support of Form I-9, E-Verify, and immigration case management software solutions.

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