In March 2020, the U.S. Department of Homeland Security (DHS) and U.S. Customs and Border Protection (CBP) announced that due to the COVID-19 pandemic, employers and workplaces that operate remotely no longer have to physically examine documentation provided by an employee to verify their identity and employment eligibility associated with the Employment Eligibility Verification (Form I-9) process. Rather, these documents can be examined or verified remotely through e-mail, facsimile, etc. This change in policy continues to remain in place through December 31, 2021.

Recently, DHS has sought comments from the public as to making this remote document examination practice, associated with Form I-9 processing during the COVID-19 pandemic, a more permanent practice. Please see the following regarding DHS' request for public input: https://www.regulations.gov/document/USCIS-2021-0022-0001.

DHS is seeking comments from various employers throughout the U.S., both large and small, and within different industries in order to reduce the burden on the public with respect to the Form I-9 verification process, while at the same time achieving a level of security for both identity and employment eligibility verification. DHS has provided a list of questions that it encourages employers to answer (Note: The list is not exhaustive and not intended to limit feedback), which are the following:

1. Did you or your organization use the flexibilities for remote document examination for the Form I-9 since March 20, 2020? If not, why? If so, what was your experience using the flexibilities? How did small employers use these flexibilities?

2. If the employer performed any remote document examinations since March 20, 2020:

  • What were your experiences with internal technical capabilities to perform remote document examination (for example, video quality, image quality, document retention, etc.)?
  • What were your experiences related to employee-provided digital images or copies of documents for retention?
  • What were your experiences related to employees' remote completion and submission of Section 1 of the Form I-9?
  • What processes and/or technology solutions were typically used to remotely examine documents (for example, over video link, fax, or email, etc.)? Was the process always the same, or did it vary based on circumstances? What, if any, internal policies were put into place related to remote document examination practices?
  • Were any remotely examined documents rejected because they did not relate to the individual presenting them or did not appear to be genuine? Were there any instances in which a document was accepted during remote examination, but upon subsequent physical inspection, the employer determined that the document did not appear to be genuine or did not relate to the individual presenting it? If so, what actions did the employer take?

3. If the employer performed any remote document examinations since March 20, 2020, and is enrolled in E-Verify:

  • Were any documents examined remotely for which E-Verify returned an Employment Authorized result, but upon subsequent physical examination, the employer determined that the documents did not appear to be genuine or relate to the individual presenting them? If so, what actions did the employer take?
  • What, if any, challenges did employers experience in interpreting and following the requirements of participation in the E-Verify program during the period of remote document examination?

Considerations for Future Remote Document Examination Procedures

1. What are the direct and indirect burdens on employees and employers related to the physical document examination requirement for Form I-9?

2. What are the direct and indirect burdens on employees and employers related to the use of authorized representatives to meet the physical document examination requirement?

3. What would be the direct and indirect benefits of offering a permanent option for remote document examination of Form I-9 identity and work eligibility documents (for example, allowing some employers to centralize Form I-9 processing)?

4. What would be the direct and indirect costs of offering a permanent option for remote document examination of Form I-9 identity and work eligibility documents (for example, training or technology acquisition costs)?

5. What would be the direct and indirect burdens on small employers for the items listed above? What are the unique challenges faced by small employers with this process and these flexibilities? What kinds of alternatives should be provided for small employers in adopting these flexibilities?

6. If employers were allowed a permanent option for remote document examination, what types of employers and/or employees do you anticipate would be interested in participating or not interested in participating?

7. How might participation requirements as a condition of these flexibilities, such as required enrollment in E-Verify, document or image quality or retention requirements, or required completion of training offered by DHS, impact an employer's desire or ability to utilize such a flexibility?

8. What would be the costs or benefits associated with making enrollment in E-Verify a condition of flexibilities for you, as an employer?

9. If DHS were to permanently allow an option for remote document examination, what technical considerations would participating employers have to consider?

10. What impact would a permanent option for remote document examination have on employees and employers, if any? If these flexibilities are adopted, are there requirements DHS should adopt to ensure employee rights related to document examination are protected?

11. Are there solutions that would enable employers to verify that documents that are examined remotely appear to be genuine and to relate to the individual presenting them? What actions by DHS would encourage the commercial development of such solutions?

12. Should DHS consider changes to the current lists of acceptable documents on the Form I-9, in the context of remote document examination? What would be the costs and benefits of such changes?

13. Are there any other factors DHS should consider related to remote document examination?

Written comments are due on or before December 27, 2021, and may be submitted at http://www.regulations.gov, and should include document number USCIS-2021-0022.

It is unknown if the current practice of remote I-9 employment eligibility verification will become a permanent practice. While there has been some relaxation with respect to travel restrictions, new restrictions have been imposed as a result of an increase in COVID-19 hospitalizations and new COVID-19 variants. As result, it is likely remote I-9 employment eligibility verification will be extended after December 31, 2021, temporarily, for another six months. What is interesting about the request for public comments with respect to the remote I-9 employment eligibility verification issue is that it appears the government may be interested in making the current practice a more permanent practice. The COVID-19 pandemic has resulted in many organizations, including the U.S. government, to review its practices and how work is completed. Are there better and/or more efficient ways to achieve the same result? As a result, some of the modifications in the U.S. government's practices implemented during the COVID-19 pandemic (Examples: Issuance of electronic PERM labor certifications by the U.S. Department of Labor's Office of Foreign Labor Certification, flexibility with respect to USCIS' signature policy on petitions and application forms, etc.) may, in the end, become permanent practices, including remote I-9 employment eligibility verification.

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