DHS Proposes Major Changes to the Form I-9 Process in the US

On August 18, 2022, the Department of Homeland Security (DHS) published a proposed rule titled Optional Alternatives to the Physical Document Examination Associated with Employment Eligibility Verification (Form I-9).

Background

Employers are responsible for verifying the identity and employment authorization of newly hired employees by completing Form I-9, Employment Eligibility Verification, for each worker hired to perform labor or services in the United States. During the coronavirus pandemic, DHS issued temporary guidance providing an alternative to the in-person verification requirement through remote inspection (e.g., video, fax, email).

The Proposed Rule

In view of technological advances and new work arrangements, the government is exploring alternative means for employers to verify new employees’ identity and employment authorization, including some of the flexibilities introduced during the pandemic. The rule does not aim to directly authorize remote document examination. Rather, the agency may authorize alternative examination procedures with respect to some or all employers, and such procedures may be:

1. part of a pilot program;
2. implemented upon a determination that the procedures offer a sufficient level of security and address fraud risks; or
3. as a temporary measure to respond to public health and national emergencies.

A few highlights:

• Form I-9 would be revised to include a box for employers to check to reflect the use of alternative identity and employment authorization verification procedures. The change would permit DHS to tailor audits according to the verification procedure identified by the employer.
• The proposed rule contemplates mandatory fraud document training and anti-discrimination training for employers, such as a 30- to 60-minute online training for employers who use an alternative procedure.
• The agency may establish criteria or conditions for employers to participate in future programs that do not require the physical examination of Form I-9 documentation. For example, a program might be limited to employers who are enrolled and in good standing in DHS’s E-verify system, or a program might be unavailable to employers who have been subject to civil or criminal penalties for failing to comply with federal I-9 requirements.
• The notice emphasizes that DHS is interested in receiving comments to understand the benefits, costs, and burdens the proposed changes would create for the public.

The changes will revise the language currently in Section 8 of the Code of Federal Regulations § 274a.2(b) and (c).

Comment Period

The government is accepting comments from the public for 60 days, ending on October 17, 2022.