Proposed DHS rule would allow permanent flexibility for I-9 remote document inspection

Good news for employers that may be considering permanent telework options for employees: The Dept. of Homeland Security (DHS) is thinking of implementing additional guidelines that would allow for remote document inspection for Form I-9 purposes.

In a new proposed rule that the agency posted on the Federal Register, DHS said it’s seeking comment from employers and other stakeholders about the elements that should be considered when crafting new guidance to allow employers to allow alternative procedures for physical document inspection.

While the proposed rule won’t directly make remote document inspection permanent, it will allow the agency to put additional flexibility in place similar to what it authorized during the height of the COVID-19 pandemic.

Because many employers were operating remotely due to COVID lockdowns and stay-at-home-orders, DHS allowed for remote inspection of I-9 documentation with new hires. Employers could inspect documents via video, fax or email as long as the company was fully remote. This flexibility has been extended until Oct. 31, 2022, for any employees hired on or after April 1, 2021.

The proposed rule would also authorize DHS to create pilot programs to test how well remote document inspection works for certain employers, and it would authorize the agency to create additional options for remote inspection – as well as extend the current I-9 flexibility guidelines.

As part of the proposed rule, DHS would change the language in existing law to give the agency authority to create alternative procedures to examine employees’ documents to confirm their identity.

Potential changes to Form I-9 & remote document verification

DHS also wants to update Form I-9 to allow for these alternative procedures once they’re in place. The updated I-9 would have a box employers could check to indicate that the employee’s documentation was examined according to the guidelines of the alternative procedure authorized by DHS.

In addition, the Form I-9 instructions would be updated with an explanation for this box.

To further enhance the security of remote document inspection and other alternative procedures for verifying employment eligibility, DHS is also considering adopting other changes, such as:

• Implementing document retention requirements for any documents presented remotely
• Requiring employers using these procedures to undergo fraudulent document detection training and/or anti-discrimination training, and
• Placing limits on who’s eligible to use alternative procedures for verification (e.g., only allowing employers that use the E-Verify system to participate).

DHS is currently accepting comments and feedback on all aspects of creating these guidelines, including any potential updates to Form I-9.

The deadline to submit comments is Oct. 17, 2022, via the Federal eRulemaking Portal at regulations.gov.