On October 26, 2021, the Department of Homeland Security (DHS) and the USCIS announced they were seeking public comment concerning alternative options to physical document examination that offer an equivalent or higher level of security for identity and employment eligibility verification purposes (meaning elimination of in-person physical examination of documents). The comments are due by December 27, 2021.
Under current law, IRCA, every employer is required to “physically examine” and attest that the documents appear to be genuine and to relate to the person presenting them. On March 20, 2020, DHS announced it would defer the physical presence requirements associated with Form I-9 for employers with employees taking physical proximity precautions due to COVID-19 and allow employees’ identity and employment eligibility documents to be examined remotely. If employees were physically present at a work location, DHS offered no exception to the in-person verification. These flexibilities were initially allowed for 60 days and have been subsequently extended many times, most recently until December 31, 2021.
DHS issued further guidance on March 31, 2021, that specified: “a) the requirement that employers inspect employees’ Form I-9 identity and employment eligibility documentation in person applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis; b) employees hired on or after April 1, 2021, who work exclusively in a remote setting due to COVID-19-related precautions, are temporarily exempt from the physical inspection requirements until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.”
DHS’ request for input listed considerations for “Future Remote Document Examination Procedures,” meaning a possible permanent remote verification. The 13 considerations are:
- What are the direct and indirect burdens on employees and employers related to the physical document examination requirement for Form I-9?
- What are the direct and indirect burdens on employees and employers related to the use of authorized representatives to meet the physical document examination requirement?
- What would be the direct and indirect benefits of offering a permanent option for remote document examination of Form I-9 identity and work eligibility documents (for example, allowing some employers to centralize Form I-9 processing)?
- What would be the direct and indirect costs of offering a permanent option for remote document examination of Form I-9 identity and work eligibility documents (for example, training or technology acquisition costs)?
- What would be the direct and indirect burdens on small employers for the items listed above? What are the unique challenges faced by small employers with this process and these flexibilities? What kinds of alternatives should be provided for small employers in adopting these flexibilities?
- If employers were allowed a permanent option for remote document examination, what types of employers and/or employees do you anticipate would be interested in participating or not interested in participating?
- How might participation requirements as a condition of these flexibilities, such as required enrollment in E-Verify, document or image quality or retention requirements, or required completion of training offered by DHS, impact an employer’s desire or ability to utilize such a flexibility?
- What would be the costs or benefits associated with making enrollment in E-Verify a condition of flexibilities for you, as an employer?
- If DHS were to permanently allow an option for remote document examination, what technical considerations would participating employers have to consider?
- What impact would a permanent option for remote document examination have on employees and employers, if any? If these flexibilities are adopted, are there requirements DHS should adopt to ensure employee rights related to document examination are protected?
- Are there solutions that would enable employers to verify that documents that are examined remotely appear to be genuine and to relate to the individual presenting them? What actions by DHS would encourage the commercial development of such solutions?
- Should DHS consider changes to the current lists of acceptable documents on the Form I-9, in the context of remote document examination? What would be the costs and benefits of such changes?
- Are there any other factors DHS should consider related to remote document examination?
In DHS’ request for input, it listed four questions (not meant to be exhaustive) to assist commenters in formulating comments:
- Did you or your organization use the flexibilities for remote document examination for the Form I-9 since March 20, 2020? If not, why? If so, what was your experience using the flexibilities? How did small employers use these flexibilities?
- If the employer performed any remote document examinations since March 20, 2020:
- What were your experiences with internal technical capabilities to perform remote document examination (for example, video quality, image quality, document retention, etc.)?
- What were your experiences related to employee-provided digital images or copies or documents for retention?
- What were your experiences related to employees’ remote completion and submission of Section 1 of the Form I-9?
- What processes and/or technology solutions were typically used to remotely examine documents (for example, over video link, fax, or email, etc.)? Was the process always the same, or did it vary based on circumstances? What, if any, internal policies were put into place related to remote document examination practices?
- Were any remotely examined documents rejected because they did not relate to the individual presenting them or did not appear to be genuine? Were there any instances in which a document was accepted during remote examination, but upon subsequent physical inspection, the employer determined that the document did not appear to be genuine or did not relate to the individual presenting it? If so, what actions did the employer take?
- If the employer performed any remote document examinations since March 20, 2020, and is enrolled in E-Verify:
- Were any documents examined remotely for which E-Verify returned an Employment Authorized result, but upon subsequent physical examination, the employer determined that the documents did not appear to be genuine or relate to the individual presenting them? If so, what actions did the employer take?
- What, if any, challenges did employers experience in interpreting and following the requirements of participation in the E-Verify program during the period of remote document examination?
- What other changes did employers make to Form I-9 document inspection procedures during the pandemic? Did employers increase use of authorized representatives?
It appears that DHS is serious about a permanent remote inspection option that would eliminate the need for an in-person physical inspection of documents during the I-9 process. Two very interesting questions are whether employers will be required to enroll in E-Verify and whether to require completion of training offered by DHS.
Rumor has it that the DHS training may involve membership in a mini-IMAGE program. If so, it will be interesting to see what all of the requirements are as currently, IMAGE is unacceptable to most employers.