DHS: No Permanent Virtual I-9 Option Yet

Proposed rule signals openness to exploring remote verification methods

Roy Maurer By Roy Maurer August 24, 2022
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​Human resource professionals erupted in jubilation on social media last week upon hearing that the Department of Homeland Security (DHS) was taking long-awaited next steps in allowing a permanent remote I-9 document inspection option.

But as SHRM Online reported on the day of the announcement, the government is only exploring a virtual verification option, and no new alternatives have been authorized.  

The proposed rule is a "first, tentative step," said Michael Neifach, an attorney in the Washington, D.C., regional office of Jackson Lewis. "This proposal does not authorize permanent flexibility, nor does it provide alternatives. Instead, it gives DHS the ability to authorize changes to the process in the future. Such changes could be temporary or permanent and could apply to all or only some employers."

The proposed rule will provide DHS with the regulatory framework—or "a green light"—to set up a virtual alternative for some or all employers going forward, said Avram Morell, an attorney in the New York City office of Pryor Cashman. "This new rule does not require DHS to make these changes, but it is clear that there is a mandate to try to move in this direction to accommodate the new remote economy. This is a huge step that could potentially benefit enormous numbers of employees."

The Society for Human Resource Management (SHRM) recognized the proposed rule as signaling the government's willingness to formalize pandemic-era flexibilities and permit permanent remote inspection of employee identification and employment authorization documents during the I-9 process.

"We are encouraged by the efforts of DHS and their openness to adjusting the employment verification process to reflect the 21st century workforce," said Emily M. Dickens, chief of staff and head of government affairs for SHRM. "At the same time, we had hoped to see a more fully developed proposed rule because many employers find the traditional Form I-9 processes to be burdensome. SHRM will continue to partner with DHS to offer our expertise to ensure the final regulation reflects the reality of the workforce, HR processes, and current and emerging technology."

Employers must complete a Form I-9 for all workers to verify employment eligibility. During the COVID-19 pandemic, DHS waived requirements that employers inspect documents proving employment eligibility in person in workplaces that were operating remotely, and those employers have been allowed to use alternatives like videoconferencing, fax or e-mail. That flexibility was most recently extended through the end of October.

Seeking Input from HR

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, noted that this is the second time in the past year that DHS is asking for public comments on the potential benefits and burdens of alternative Form I-9 document inspection methods.

DHS first announced its intention to offer a more permanent version of its virtual verification option for examining I-9 documents in October 2021.

"Hundreds of HR managers and attorneys wrote in suggestions and pleas advocating for a sensible I-9 inspection policy that takes into account the proliferation of remote work in the U.S. and the increasing costs and burdens for employers in conducting an in-person inspection for hires and rehires," Fay said.

Neifach said the benefits of allowing employers to conduct Form I-9 verifications remotely include enabling companies to centralize their I-9 processes, eliminating the need to hire agents who may not be as experienced to conduct remote verifications and making it easier to hire key employees who might work remotely.

"Such flexibility would eliminate barriers to hiring individuals for whom remote work is a necessity, such as those who live in rural areas or have physical disabilities that make it impossible to attend an in-person I-9 verification," he said. "On the cost side, some employers might need to purchase new equipment and train staff to conduct remote document screening."

Fay said DHS is also requesting comments on the benefits and costs of retaining remotely examined I-9 documents; training on fraudulent document detection and anti-discrimination; and employer eligibility requirements, such as requiring enrollment in E-Verify or restricting employers with previous I-9 infractions.

"Hopefully this restriction, if implemented, only applies to organizations that have committed the most egregious of I-9 violations—for example repeatedly hiring and/or employing unauthorized workers," he said. "Some employers may have been fined for simple paperwork violations that were committed without an intent to deceive or otherwise subvert the I-9 verification process, and surely these organizations should have the option of using the new virtual verification program if authorized, provided they follow all of the attendant rules and requirements."

The proposed rule also includes changes to the form itself. "Specifically, DHS is proposing adding a box to the Form I-9 that will need to be checked by the [document examiner] to indicate that the employee's documentation was examined virtually for either Section 2 or Section 3 of the form," Fay said.

The Future Is Uncertain

Fay explained that once the specific program requirements and conditions for virtual I-9 review are published, the option will still have to be authorized by the DHS secretary in order to be used. It may only be authorized for a subset of employers or only in a pandemic-like emergency, he said.

According to the proposed rule, he said, "virtual verification as envisioned will not be a permanent program that is always available to employers moving forward. The program will ultimately be at the whim of the current DHS secretary and, more broadly, the administration in the White House at the time. I think employers will have to settle for a semi-permanent virtual verification policy, subject to the whims of whomever is in office. It's just another one of those uncertainties we'll have to live with, it seems."

Comments on the proposed rule are due by Oct. 17.

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