On July 26, Emily Dickens, Chief of Staff of the Society for Human Resource Management (SHRM) sent a letter to the head of the Department of Homeland Security (DHS) asking her to consider making permanent the current guidance, inspired by COVID-19 work-at-home decisions, that allows for remote I-9 document review, known as the I-9 Flexibility Guidance. The standing rule is that document review take place in person. Employers no doubt hope that the government will take the letter into account and changes its rules concerning I-9 and E-Verify.
Changing the Flexibility Guidance to a permanent rule would make document review easier for employers and employees alike. Remote employees would not have to come into the office for document review but could instead continue to provide, say by video conference, images of the relevant documents. The SHRM letter lays out reasons in detail why remote I-9 document review should be made permanent.
According to the policy letter, “In May 2021, SHRM surveyed its members on their experience with the I-9 Flexibility Guidance, and the current employment verification process….Based on the survey findings, SHRM…advocates for the implementation of a permanent rule or policy that reinterprets [the U.S. Citizenship and Immigration Services’] current requirement of a physical inspection of documents to mean ‘in-person’, thereby permitting a virtual inspection model for use in completing Section 2 of Form I-9 by video conference. Removing the in-person requirement is critical to ensure the health, safety, and welfare of HR professionals mainly tasked with completion of the Form I-9.”
The policy letter provides pages of survey results to support SHRM’s request to make the Flexibility Guidance permanent. For example, according to survey results, “Many employers find the traditional Form I-9 and E-Verify process to be burdensome, particularly completing the Form I-9. 4 in 5 respondents consider the Form I-9 process, E-Verify or both burdensome for employers.” Remote work makes the Form I-9 task more burdensome, and “[m]ost employers surveyed (95%) indicated that they operated either partially (58%) or fully remotely (37%) at some point during the pandemic.”
Employers took advantage of the Flexibility Guidance. “Nearly 2 in 5 (38%) of the employers surveyed say they conduct(ed) I-9s virtually for all new hires.” Furthermore, “26% use(d) a hybrid model: including both the authorized representative method and virtual I-9s.” That accounts for the majority of those surveyed.
As the pandemic continues, many employers are continuing with remote work. This makes the Flexibility Guidance ambiguous under practical terms. What about remote employees who return to the office, for example? As the SHRM survey results put it: “As many employers continue to maintain partially or fully remote operations, they foresee challenges with current I-9 flexibility guidance. Under the current guidance, the timing and process to satisfy the physical inspection requirement after returning to work remains unclear.” Will employees who satisfied the I-9 certification remotely have to provide in-person certification once they return to the office?
In response to questions such as these, the survey results indicate that it will be burdensome for employers to comply with I-9 certification requirements. “When asked how challenging they think it will be for their organization to obtain, inspect and retain copies of documents collected during the remote work period within this timeframe, more than 7 in 10 of the employers surveyed said it would be somewhat (25%) or very (46%) challenging to do so.”
Suggestions from Employers
The survey includes suggestions from employers on what to do about the I-9 process to make it less burdensome. These include two suggestions concerning the Flexibility Guidance. One suggestion carries a majority of respondents: “Over half (55%) [suggested] a longer flexibility notice further extending this guidance until the end of 2021, including the description of what will be required at the return-to-work time.” The second suggestion also carries a majority: “Over half (54%) [asked for] clarification on timing regarding completing ‘in-person’ reviews of virtual I-9s once employees return to work, such as providing at least 120 days to update I-9s completed using the flexibility [guidance].” A minority had another request. Forty-five percent requested “more examples on how to update Form I-9 when employees return to work, ensuring consistency between the U.S Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS) guidance.”
Nearly two-thirds majorities had ideas about simplifying the I-9 and E-Verify process. Sixty-five percent recommended “permanent revocation of USCIS mandate to review documents in person by changing the definition of ‘physical inspection’ to include video conference.” Sixty-five percent also recommended “a single, combined E-Verify and the Form I-9.” Furthermore, half of the respondents to the survey asked for simplified Form I-9 instructions.
Additional suggestions include granting “additional time complete new Forms I-9 in the event of merger, acquisition or restructuring.” Another suggestion is “updates to I-9 violations that take into account electronic I-9 issues and clearly describe the rules.” A further suggestion is the “inclusion of receipts, temporary documents and auto extension information in the Form I-9 list of Acceptable Documents.” The respondents to the survey further request clarity regarding what is an acceptable document. They also request samples of violations of electronic I-9s.
Will the Government Listen?
The SHRM’s requests seem reasonable, but will the government listen? That remains to be seen. Under the Biden administration, the government is becoming more employee-friendly, but these recommendations are friendly to employees as well as employers. Employees can provide the necessary documents by video, thus reducing the need to appear in person with rarely accessed documents that employees may lose among their papers. Employers may lobby the relevant agencies to take the SHRM’s letter into account. Sending letters in support of the SHRM’s letter is one means of doing so. Large employers may also hire lobbyists to advocate on their behalf to make the Flexibility Guidance permanent, for example. Smaller employers can make phone calls to the relevant agencies advocating on behalf of the SHRM’s letter. By whatever means, employers can advocate for an extension of the Flexibility Guidance and simplification of the I-9 and E-Verify processes.
The SHRM has submitted to the DHS a letter advocating for an extension of the Flexibility Guidance as well as various other changes to the I-9 and E-Verify process. Employers can advocate for the government to consider this letter and change its rules regarding these processes.