Employers may have the permanent option to virtually verify the information on a new hire's Form I-9 in the near future.
On Oct. 26, the U.S. Department of Homeland Security (DHS) published a request for information seeking comments from employers on their use of remote verification options, the kinds of technology used and any technical difficulties conducting I-9 inspections during the last 19 months of the COVID-19 pandemic.
U.S. Citizenship and Immigration Services (USCIS) is also asking about "alternative options" for physical document examination in the future.
USCIS Director Ur Jaddou stressed that the information request is solely for planning purposes and does not bind the agency to making any changes. "DHS will consider the feedback and make changes or process improvements at its sole discretion," she said.
Public input is due by Dec. 27.
New Way Forward
Employers must submit an I-9 for all new hires, verifying the employee's identity and employment eligibility.
"As the COVID-19 pandemic swept across the U.S. last year, the DHS did something that many I-9 policy experts once considered unthinkable—they relaxed the agency's rules for examining identity and work authorization documents in person, allowing a so-called virtual verification of the documents by video, e-mail or fax, followed by a physical inspection at a later time," said John Fay, an immigration attorney and president of the LawLogix division of Hyland Software, a company that specializes in cloud-based I-9, E-Verify and immigration case management services.
In-person inspections of the Form I-9 were waived in March 2020 for workplaces operating remotely due to the pandemic, and since then, DHS has extended remote verification options multiple times.
Fay explained that the I-9 remote inspection flexibility can only be used for employees who “work exclusively in a remote setting due to COVID-19-related precautions.” An employee who works remotely for other reasons (unrelated to COVID) must still present documents to an employer or employer rep in-person. This is one of the reasons why ICE wants the employer to maintain “written documentation of their remote onboarding and telework policy for each employee,” where the option is used, he said.
"In April 2021, the DHS clarified that, for companies continuing to operate at least partially remote due to COVID-19, in-person inspection applied only to employees who report to work at a company location on a 'regular, consistent or predictable basis,' " said Michael Neifach, an attorney in the Washington, D.C., regional office of Jackson Lewis. "DHS announced that the ongoing flexible procedures would continue at least through December 31. The agency now appears to be considering making some remote I-9 procedures permanent."
Neifach added that those employers interested in the permanent continuation of Form I-9 flexibility might be encouraged by the information-seeking announcement. "These changes likely are part of the administration's move toward modernization in the I-9 process," he said.
Fay noted that the flexible policy has been very popular with employers, especially those in industries that are routinely hiring new employees to work remotely.
"In many cases, these employees can be hired, onboarded and immediately start work without ever setting foot in the employer's offices," he said.
But the policy's uncertainty has been a problem. "Originally implemented for only 60 days, virtual verification has now been extended multiple times, and each time the program is extended, DHS reminds employers that it's a temporary thing and warns that the program could end at any minute," Fay said. "The fact that virtual verification in its current form is merely a deferment of the physical inspection process was another major drawback for many employers, who were concerned about the additional tracking obligations and follow-up requirement."
The Society for Human Resource Management (SHRM) wrote to DHS in late July, asking the department to consider a permanent rule allowing a virtual inspection model for completing the Form I-9. "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," said Emily M. Dickens, chief of staff, head of government affairs and corporate secretary at SHRM. "Just as important is the ability for high-volume employers and companies with growing remote workforces to be relieved from the burdens associated with in-person inspection."
DHS Wants to Know
DHS is asking employers about their experiences using virtual methods for I-9 inspection, including what worked and what didn't work.
"The questions range from those geared toward understanding employers' experiences with the technology involved in I-9 flexibility to those about the results from subsequent E-Verify or physical examinations," Neifach said. "DHS wants to know how often the subsequent results were inconsistent with the remote examinations in determining whether the documents presented were genuine and, in fact, relate to the person presenting the documents for inspection. DHS also is interested in finding out how many employers successfully used authorized agents for verification purposes due to COVID-19."
DHS is also asking if the current lists of acceptable documents on the Form I-9 should be modified in the context of remote document examination.
Fay said questions posed about potential participation requirements attached to a permanent remote inspection option "are very interesting, providing a brief glimpse into the potential structure and 'strings attached' for employers that want to use remote document inspection in the future."
Bruce Buchanan, an attorney in the Nashville, Tenn., and Atlanta offices of Sebelist Buchanan Law, said the questions reveal what may be required of employers choosing remote verification—whether employers will be required to enroll in E-Verify and whether to require completion of DHS training.
"Rumor has it that the DHS training may involve membership in a mini-IMAGE program," the voluntary, employer self-policing initiative run by Immigration and Customs Enforcement (ICE), he said. "If so, it will be interesting to see what all of the requirements are, as IMAGE currently is unacceptable to most employers" due to the mandated I-9 inspections.
Technology Solutions
DHS is also looking for potential technology solutions that would give employers the capability to verify that remotely examined documents appear to be genuine and relate to the individual presenting them, Fay said. "ICE has been particularly concerned about data security and fraud prevention, noting that it may be harder for an employer to spot fake documents that are inspected virtually rather than through an in-person tactile review," he said.
Fay added that "leading technology companies have made recent advancements in document capture that paves the way for an automated review of an I-9 document with a higher level of confidence relating to its authenticity and validity."