DHS Proposes Pathway to Remote I-9 Document Inspection

The U.S. Department of Homeland Security (DHS) published a proposed rule that could eventually allow employers to remotely inspect I-9 documents. The proposed rule was published on August 18, 2022, and the public comment period closed on October 17, 2022. While the rule does not expressly allow for remote inspection of I-9 documents, it creates a clear pathway for DHS to allow for this in the future.

Established in 1986, the I-9 process generally requires that employers verify the identity and work authorization for new hires, normally through an in-person review of employee documents. This in-person review has created logistical challenges over the years, especially as employers rely increasingly on remote/telework arrangements. During the COVID-19 pandemic, DHS enacted temporary flexibilities allowing for limited remote I-9 document inspection for employers and workplaces operating on a remote basis. Those temporary flexibilities shifted and developed over the course of 2020 and 2021, sparking interest in permanent flexibilities.

Importantly, the rule proposed in August 2022 would not expressly authorize remote document inspection. Instead, it would create a framework allowing DHS to pilot different programs such as responding to public health or national emergencies or enacting broadly applicable permanent flexibilities. In the case of permanent flexibilities, the rule would require that such procedures offer a security level equivalent to the current in-person inspection process. The rule contemplates several elements that could accompany a system of remote document inspection. For example:

  • The Form I-9 could be updated with a box to indicate whether an employer relied on alternative document inspection procedures.
  • Employers could be required to retain copies of all remotely inspected documents.
  • DHS could require that employers undergo mandatory training on fraud detection and anti-discrimination.
  • Only employers participating in good standing with E-Verify could be permitted to use remote document inspection.

We will continue to monitor the progress of this rule and provide updates as they become available. Please contact any member of our Immigration practice group by clicking here.

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