DHS Proposed Rule Could Make Remote Verification of Form I-9 Permanent

Written By Digital Content Editor Thomas Ahearn

The U.S. Department of Homeland Security (DHS) has moved closer to permanently allowing remote verification of identification documents related to the Form I-9, Employment Eligibility Verification by employers in the United States, according to a Notice of Proposed Rulemaking (NPRM) formally published on August 18, 2022.

While not directly authorizing remote document examination, the proposed rule would create a framework under which the DHS could pilot various options, respond to emergencies similar to the COVID-19 pandemic, or implement permanent flexibilities upon a specific determination as to the level of security, including fraud risk.

The DHS recognizes that more employers may have adopted telework and remote work arrangements because of the COVID-19 pandemic. In March 2021, the U.S. Bureau of Labor Statistics reported that nearly one in four people (22.7 percent) teleworked or worked at home for pay because of the COVID–19 pandemic.

In light of advances in technology and new work arrangements, the DHS began exploring alternative options, including making permanent some of the current COVID-19 pandemic-related flexibilities to examine the identity and employment authorization documents of newly hired employees for the Form I-9.

A 60-day comment period will follow the issuance of the proposed rule that will remain open until October 17, 2022. Comments on the proposed rule – which should be identified by Docket No. ICEB-2021-0010 – may be submitted through the Federal eRulemaking Portal website at https://www.regulations.gov.

The Immigration Reform and Control Act of 1986 requires all employers in the United States to complete a Form I-9 for every employee hired after November 6, 1986. The Form I-9 is used to verify the identity and employment authorization of all newly hired workers in America to help ensure a legal workforce.

On March 20, 2020, in response to public health guidance and precautions related to the COVID-19 pandemic, the DHS announced that it would exercise prosecutorial discretion to defer the physical presence requirements of the Form I-9 under Section 274A of the Immigration and Nationality Act (INA).

The policy has been extended since the first expiration date of May 19, 2020. It was extended to June 19, 2020, July 19, 2020, August 19, 2020, September 19, 2020, November 19, 2020, December 31, 2020, January 31, 2021, March 31, 2021, May 31, 2021, August 31, 2021, December 31, 2021, April 30, 2022, and October 31, 2022.

COVID-19 is a deadly respiratory illness that spreads from person to person. As of September 18, 2022, there are more than 593 million global cases and 6.4 million global deaths, while the United States leads the world with more than 93 million cases and 1 million deaths, according to research from Johns Hopkins University.

Employment Screening Resources® (ESR) – a service offering of ClearStar, a leading Human Resources (HR) technology company specializing in background, drug, and occupational health screening – provides a Form I-9 solution so employers may compliantly verify work status for a legal workforce. To learn more, contact ESR.

NOTE: Employment Screening Resources (ESR) – a service offering of ClearStar – does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

© 2022 Employment Screening Resources (ESR) – A Service Offering of ClearStar – Making copies of or using any part of the ESR News Blog or ESR website for any purpose other than your own personal use is prohibited unless written authorization is first obtained from ESR.

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