The US Department of Homeland Security and Immigration and Customs Enforcement are requesting feedback on a proposed rule change that would allow the Secretary of the agency to allow some employers more permanent options for examining the documentation of persons seeking to establish identity and employment authorization for Form I-9 purposes. This Notice of Proposed Rulemaking was formally published on August 18, 2022.
Since the pandemic, the U.S. government has allowed employers, under certain circumstances, temporary flexibility in completing Form I-9, allowing them to defer the “in-person” inspection requirement for Section 2. Instead, they were able to inspect the documents virtually using methods like video, fax, and email.
This proposed rule would not authorize remote or virtual document examination. Instead, this rule would allow for alternative options for document examination sometime in the future. Any alternative procedures for inspection of acceptable documents would be in a future Federal Register notice. In the notice there are several different instances where the Secretary might authorize some type of virtual option. The rule could allow for flexibility for certain employers as part of a pilot program, if the Secretary determines that such procedures offer an equivalent level of security as physical inspection or as a temporary measure to address a public health emergency declared by the Secretary of Health and Human Services or a national emergency declared by the President.
Should the rule go into effect, the notice does list some potential requirements for an employer to participate in a possible virtual completion model. These include:
- Document retention – an employer might be required to retain copies of any documents presented remotely
- Fraudulent document detection and/or anti-discrimination training – completers may be required to take a 30–60-minute online training on detecting fraudulent documents remotely and avoiding discrimination in the process
- Employer level eligibility requirements – employers might need to participate in E-Verify to qualify, and employers who have been subject to a fine, settlement or conviction related to Form I-9 might not be able to participate
What does this mean for employers?
This notification itself does not result in any changes in the immediate future. What it does mean is that employers should be watching for future changes to the Form I-9 and regulations around options for continued allowance of remote completion of Form I-9. There is an open comment period during which you may submit comments on the entirety of this proposed rule, Identified by Docket No. ICEB-2021-0010, through the Federal eRulemaking Portal: www.regulations.gov
Efficient Hire will continue to monitor this proposed ruling and communicate how employers may be affected.
“We’re encouraged by the forward-thinking of this proposal for feedback to enable virtual inspection of Form I-9 Part II documents. This capability would streamline the arduous process employers face today, specifically for remote workers.”
Steve Heller, Chief Product Officer, Efficient Hire
It is important to note that the employer is ultimately accountable for any mistakes or errors, so working with an experienced Onboarding and I-9 provider is one way of helping keep on top of proposed changes like this. If you are looking for assistance with helping you manage your I-9s, check out our Onboarding & I-9 Compliance solutions, or contact us with any questions you may have.