By Jason Fry
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 alternatives 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 the 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 discriminations 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
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
Equifax will continue to monitor this proposed ruling and communicate how employers may be affected. It is important to note that the employer is ultimately held accountable for any mistakes or errors, so working with an experienced I-9 service 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, take a look at our I-9 Management suite of services, or contact us with any questions you may have.
To learn more about best practices for managing your I-9s download our HR Checklist for I-9 Enforcement to help get your organization better prepared for an I-9 audit.
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