DHS Proposal to Consider Alternatives for I-9 Documentary Review

The U.S. Department of Homeland Security (DHS) has proposed a regulation that, if implemented, would provide the DHS with greater authority to alter certain requirements during the form I-9 employment eligibility verification process. In particular, the rule would further empower the DHS to implement alternative methods for employers to examine employee documents during the I-9 process.

Background on Form I-9

All U.S. employers must establish the employment eligibility of employees using form I-9. The form establishes that an employee has presented the employer with sufficient evidence of the employee’s identity and employment authorization.

Ordinarily, the employee must present the physical identity and employment authorization document/s to the employer. At the onset of the COVID-19 pandemic, however, the DHS issued temporary guidance allowing, in certain circumstances, for the employer to review these documents remotely. This flexibility is presently set to expire on October 31, 2022.

Proposed Rule

The DHS proposed rule would not directly or immediately change the I-9 process. Rather, if implemented, the DHS would be granted more authority to alter the requirements for an employer to verify a worker’s identity and employment authorization documents. The DHS would have greater authority to temporarily alter requirements, such as during a national health crisis. The DHS also would be able to implement permanent changes to the process, perhaps after first exploring such changes via one or more pilot programs.

Conclusion

The DHS anticipates that many employers will continue to employ workers remotely, even as the COVID-19 pandemic recedes. Assuming this rule is implemented, it is reasonable to expect that the DHS would like to find how best to bring the I-9 process into the digital age. The public has up to 60 days to comment on the proposed rule, until October 17, 2022.

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