United States: DHS Proposes Authority to Permit Alternatives to In-Person Inspection of I-9 Documents
August 17, 2022
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At a glance
- If the proposed rule becomes final, the Department of Homeland Security (DHS) would have ongoing authority to permit alternatives to in-person examination of Form I-9 employment eligibility verification documents at its discretion.
- The proposal stops short of seeking direct, permanent changes to the I-9 process, but gives DHS greater flexibility to pilot alternative procedures, or permit alternatives during public health or other national emergencies.
- DHS will accept public comments on the proposed regulation for 60 days after publication.
The issue
The Department of Homeland Security (DHS) is proposing a regulation that would give it the authority to permit alternatives to in-person verification of identity and employment eligibility documents during the Form I-9 process. If finalized, the rule would not make direct, permanent changes to the I-9 process. Instead, it would establish a framework under which DHS could extend flexibilities, pilot alternatives to in-person inspection, or permit alternatives during emergencies.
The rule is set to be published on August 18. DHS will accept public feedback on the proposal for 60 days after publication. DHS is also seeking feedback on several I-9 issues under consideration for the future, including document retention requirements, possible training requirements for employers, and potential eligibility criteria for employers wishing to use a permissible alternative to in-person inspection.
A closer look
At the onset of the COVID-19 pandemic in March 2020, DHS, through U.S. Immigration and Customs Enforcement (ICE), temporarily relaxed its enforcement of the usual requirement that employers physically inspect identity and work authorization documents presented during the I-9 process. Instead, it permitted employers to review documents by video, fax, or email, provided that they retain copies of the documents. The policy has evolved and been extended several times over the last two and a half years; it is currently set to expire on October 31, 2022, though it could be extended further.
The proposed regulation would give DHS the ongoing authority to permit accommodations to in-person Form I-9 document inspection when the agency determines such accommodations are warranted and to test alternatives. The proposal also seeks changes to Form I-9 that would create new fields to allow employers to indicate whether documentation was examined under alternate procedures.
If your organization wishes to comment on the proposal or has questions about the I-9 employment eligibility verification process, please contact the immigration professional with whom you work at Fragomen or the firm’s Government Strategies and Compliance Group. This alert is for informational purpose only.
