DHS Publishes Proposed Rule that Could Make Temporary Remote Verification of Form I-9 Documentation a Permanent Change
On August 18, 2022, the U.S. Department of Homeland Security (DHS) formally published a Notice of Proposed Rulemaking (NPRM) in the Federal Register to move closer to possibly making the temporary remote verification of identification documents related to the Form I-9, Employment Eligibility Verification by employers in the United States a permanent change.
The proposed rule (DHS Docket No. ICEB 2021-0010) – while not directly authorizing remote document examination– 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.
A 60-day comment period will follow the issuance of the proposed rule on Thursday, August 18, 2022, which will remain open until Monday, October 17, 2022. Comments on the proposed rule – which should be identified by DHS Docket No. ICEB-2021-0010 – may be submitted through the Federal eRulemaking Portal website at https://www.regulations.gov.
On March 20, 2020, in response to public health guidance and precautions related to COVID-19, the DHS announced 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). This policy has been extended several times, most recently to October 31, 2022.
In light of advances in technology and new work arrangements related to COVID-19, the DHS – which was established in 2002 – 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.
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. A copy of Form I-9 is available at www.uscis.gov/i-9.
COVID-19 is a potentially deadly respiratory illness that spreads from person to person. As of September 18, 2022, there are approximately 593 million global cases and 6.4 million global deaths, while the United States leads the world with approximately 93 million cases and 1 million deaths, according to the COVID-19 Dashboard from Johns Hopkins University.
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