Form I-9 ‘optional alternative’ regulation clears White House review

A final rule to allow the Department of Homeland Security to provide alternatives to physical document examination in some scenarios in the Form I-9 process has cleared White House Office of Management and Budget review.

Key Points:

• The text of the rule is not yet available. OMB review is the last step in the rulemaking process before DHS can publish the rule in the Federal Register.
• DHS will post the text for public inspection at least a day before the rule is officially published.
• The department proposed the regulation in August 2022 and received more than 500 comments from the public.

Additional Information: The temporary U.S. Immigration and Customs Enforcement flexible policy will end July 31, and employers must physically review all documents they viewed virtually by Aug. 30.

BAL Analysis: The rule will allow DHS to authorize “alternative document examination procedures in certain circumstances or with respect to certain employers” in hopes of reducing burdens on employers and employees while preserving the integrity of the employment verification process. However, it is not yet clear when DHS will make alternative procedures available or which employers will be eligible to use them. BAL continues to monitor the progress of the rule and will provide updates as information is made available.

This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

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