One of the great frustrations for employers during the pandemic has been handling Form I-9 requirements for remote hires. While the Department of Homeland Security (DHS) issued a temporary remedy by allowing companies to examine documents remotely, there was always a question of whether that remedy would become permanent, especially since it was extended a number of times.

DHS last month published a proposed rule that would allow the government to consider possible “alternative options for document examination procedures” for employees, including the option of reviewing employees’ I-9 documents on a remote basis.

The status quo

Since the Form I-9 emerged in the late 1980s as a requirement for all new hires to complete, there have been numerous changes to the form focusing on the information required and how it should be presented. But one constant has been the requirement that within three days after the employee’s first day of employment, the employee’s supporting identification verification documents (i.e., identification documents from list A or documents from list B & C) had to be reviewed in person. Typically, the viewing of these documents is accomplished in one of two ways:

• By someone employed by the company (usually a member of HR, a location manager, or someone else on the employer’s payroll) or
• By an appointed “authorized representative.” Typically, this is a notary public near to the remote employee’s location, though the employer remains liable for any verification violations including accepting fraudulent documentation.

Pandemic changes everything

The pandemic upended the Form I-9 verification process.

In response to businesses that closed their physical operations and/or shifted to remote work, the US Citizenship and Immigration Service (USCIS) relaxed its in-person document review rule. The “relaxed” rules applied when workplaces were temporarily shut down due to the pandemic, or where new hires and employees needing to update temporary work authorizations were subject to quarantine or no-travel orders.

But even the “relaxed” rules required that employers eventually review documents in person.

The temporary verification rules are currently in effect through October 31. That is the same date that the USCIS is currently scheduled to release a new updated Form I-9, though it remains to be seen whether it will occur.

Proposed I-9 rule

The proposed rule will allow the Department of Homeland Security to create pilot programs to test the efficacy and compliance of potential alternative remote I-9 document examination procedures.  Obviously, more flexibility will provide employers with some concrete benefits. Depending upon what the agency determines, some of the potential benefits include:

• Allowing an employer to centralize its Form I-9 review process thereby benefiting employers with multiple locations to assign a dedicated, well-trained team of HR professionals to run I-9 compliance for the entire company from a single location, or even remotely.
• Avoiding special trips to an employer’s location by newly hired and rehired employees, and by remote employees who need to reverify documents.
• Opening the hiring pool of candidates for employers to a geographically broader area, and similarly providing   a broader scope of potential employers to job-seekers for remote-based jobs.

If you are interested in filing a comment with the Department of Homeland Security about these proposed regulations, you may do so by clicking here and going to the addresses on the first page.

The deadline for filing comments is October 17.

AIM members with questions about this or any other human-resource matter may contact the AIM Employer Hotline at 800-470-6277.