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DHS Proposes New Form I-9 Remote Onboarding Framework


Throughout the COVID-19 Pandemic, the Department of Homeland Security (DHS) has continued to extend flexibility rules for completion of the Form I-9 during the onboarding process to establish identity and employment authorization in the United States. The flexibility rules have allowed for virtual mechanisms such as video, email, or fax to examine Form I-9 documents. As reported here, Additional Guidance Regarding Form I-9 Flexibility Rules Due To COVID-19, the traditional process required that all Form I-9 documents be examined in person. However, in light of ongoing pandemic conditions and new remote workplace policies, the DHS has allowed Form I-9 documents to be presented virtually until the employee undertakes non-remote employment on a regular and predictable basis.

Proposed Rulemaking

On August 18, 2022 the DHS published Federal Register notice 87 FR 50786 to invite public comments on a Notice of Proposed Rulemaking. The DHS’s proposed rule would not directly authorize permanent remote examination of documents; rather, the rule creates a framework in which DHS would be permitted to pilot various program options, respond to emergencies likened to that of a pandemic, or implement permanent flexibilities in the future.

Specifically, the DHS is seeking comments from the public regarding the potential burdens and benefits of the proposed changes listed below.

  1. The DHS is considering various document retention requirements which would require employers to retain copies of documentation similar to the current flexibility rules.
  2. The DHS is considering requiring a fraudulent documentation detection training and an anti-discrimination training for those individuals remotely examining the Form I-9 documents.
  3. The DHS is considering which employers will be eligible to utilize the alternative procedures. For example, an option for eligibility may depend on whether the employer is enrolled in E-Verify and is in good standing, or place limits on employers who have been subject to a fine or settlement relating to employment eligibility verification processes.

What next?

The 60-day comment period for these potential changes will be open until October 17, 2022. If alternative procedures become available for any or all employers, employers should begin thinking of training personnel to inspect documents, implementing new information technology to be in compliance with remote processes, or hiring contractors to conduct the examination of documents.

If you have any questions regarding the Form I-9 proposed rule or current flexibility rules, please contact a member of Koley Jessen’s Employment Group.

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