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DHS Proposes New Framework for Remote I-9 Inspection and Seeks Additional Public Comment

Today, the Department of Homeland Security (DHS) published its much-awaited rule on the remote I-9 inspection flexibilities for employers that were implemented as a result of the pandemic. DHS first announced their intention to offer a more permanent version of its popular “virtual verification” option for examining I-9 documents in October of 2021, inviting public comments on the pros and cons of remote inspection and document review generally of newly hired, rehired, or reverified employees.

Fast-forward to today, and the agency is now proposing a new framework for remote inspection and seeking public comment (once again) on the potential benefits and burdens of these alternative document inspection protocols.

New I-9 Rule: what you need to know

  • This proposed rule does NOT create or directly authorize any new or expanded remote I-9 document examination protocols. Instead, DHS is merely formalizing the authority for the DHS Secretary to authorize alternative options for document examination procedures in the future.
  • DHS is considering a variety of program requirements for employers that wish to utilize an alternative remote inspection process, including mandatory retention of document copies, fraudulent document detection and/or an antidiscrimination training, and E-Verify participation.
  • The agency may also place some limits on employers who have been the subject of a fine, settlement, or conviction related to I-9 verification practices.
  • DHS is proposing to add a new check box to the Form I-9 that an employer would select to indicate that the employee’s documentation was examined remotely.
  • DHS is seeking public input on the above-listed requirements as well as the associated benefits and burdens. Comments will be due 60 days from publication (October 17, 2022).
  • Following the public comment period, DHS will publish a final rule which specifies the program conditions that can be designated by the DHS secretary – timeline to be determined.

Detailed Analysis and Insights

During the past several months, employers have been anxiously waiting to hear how DHS will implement the so-called “permanent” option for remotely inspecting I-9 documents – a new and promising protocol that would replace and expand upon the agency’s temporary COVID-era policy that is currently in effect until October 31, 2022.

Earlier in the year, hundreds of HR managers and attorneys wrote-in suggestions and pleas advocating for a sensible I-9 inspection policy that takes into account the proliferation of remote work in the US and the increasing costs and burdens for employers in conducting an in-person inspection for hires and rehires.

While DHS clearly recognizes the need for “alternatives” to the physical in-person inspection of I-9 documents, this latest proposed rule reveals that the agency is still very much in “exploratory mode” and considering a variety of options and requirements for which they are seeking public comment again.

All that being said, we did learn a few important components of how DHS intends to administer (and potentially restrict) the virtual verification process moving forward.

Top Five Takeaways of the New Proposed Rule on Virtual Verification

1. The expanded virtual verification framework will ultimately be authorized by the Secretary of Homeland Security

Once DHS nails down the specific program requirements and conditions, the DHS secretary will have the authority to authorize the program. Therefore, virtual verification (as envisioned) will not be a “permanent” program that is always available to employers moving forward. Instead, the program will ultimately be at the whim of the current DHS secretary, and more broadly, the administration in the White House at the time.

2. Virtual Verification may be authorized as part of a pilot program, or upon the Secretary’s determination that such procedures offer an equivalent level of security, or as a temporary measure to address a future public health emergency

In other words, virtual verification may be implemented in different shapes and sizes. For example, the DHS secretary may decide to start small and only authorize it for a subset of employers – particularly if there are any concerns over the potential for fraud in the process. Or at a bare minimum, the DHS secretary may simply authorize it for COVID-like emergencies where safety and health concerns are at play.

3. DHS is considering other requirements for remote I-9 inspection including mandatory retention of document copies, fraudulent document detection and/or an antidiscrimination training, and E-Verify participation

DHS had previously hinted at these requirements last year when they sought public comment on a potential permanent version of the virtual verification process. With regards to the fraudulent document detection and/or antidiscrimination training, they provided an example in today’s rule, noting that an employer or authorized representative may be required to take a 30-60-minute online training in order to remotely inspect documents. To me, this implies that the employer may need to prove that this training occurred in the event of an audit, although those details have not yet been provided or discussed.

The mandatory document retention and E-Verify participation are largely self-explanatory, but DHS is very interested in hearing comments on the associated burdens or benefits, recognizing that employers may incur both technology and administrative costs for each.

4. DHS may limit employers from participating who have been the subject of a fine, settlement, or conviction related to employment eligibility verification practices.

This potential requirement may be problematic for employers given the very broad scope of “employment eligibility verification practices” in the realm of employer sanctions. For example, employers may have been fined for simple paperwork violations that were committed without an intent to deceive or otherwise subvert the I-9 verification process. Likewise, some employers may have entered into settlement agreements with ICE or IER for isolated infractions to avoid the time and expense associated with litigation. Surely, these organizations should have the option of using the new virtual verification program (if authorized), provided they follow all of the attendant rules and requirements.

The devil will ultimately be in the details, but hopefully this restriction (if implemented) only applies to organizations that have committed the most egregious of I-9 violations (e.g., repeatedly hiring and/or employing unauthorized workers).

5. DHS is requesting additional feedback and comments about the costs and benefits of the proposed virtual verification option.

 More specifically, DHS requests comments on the following potential requirements:

  1. Document Retention: DHS requests comments on any cost(s) or increased burden(s) for employers to retain I-9 documentation, as well as comments on the benefits, costs, or any burdens for employees related to such document retention.
  1. Fraudulent document detection and/or anti-discrimination training: DHS requests comments on any cost(s) or increased burden(s) for employers to complete such training, as well as comments on the benefits, costs, or any burdens for employees related to such training.
  1. Employer Eligibility Requirements: DHS requests comments on their proposed eligibility requirements that would mandate E-Verify participation and place limits on employers with previous infractions.

 

Don’t forget the I-9!

Last but not least, the proposed rule also includes changes to the Form I-9 and its accompanying instructions that would allow employers to indicate that alternative verification procedures were used. Specifically, DHS is proposing adding a box to the Form I-9 that will need to be checked by the employer (or an agent acting on an employer’s behalf) to indicate that the employee’s documentation was examined virtually for either Section 2 or Section 3 of the form.

These Form I-9 changes would allow ICE, when conducting an audit, to know that the employer or agent used virtual verification, and presumably, trigger questions regarding whether the employer observed all of the new requirements being discussed today.

Next Steps

As mentioned above, the public can submit comments by visiting the Federal eRulemaking Portal (http://www.regulations.gov) and searching for ICEB-2021-0010. All written comments are requested on or before October 17, 2022. 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.

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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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