DHS sends I-9 remote verification proposal to White House for review

The Department of Homeland Security (DHS) has sent a proposed rule to update Form I-9 employment eligibility procedures to the White House Office of Management and Budget.

Key Points:

• The text of the proposal is not yet available, but DHS said it would “propose to revise employment eligibility verification regulations to allow the Secretary (of Homeland Security) to authorize alternative document examination procedures in certain circumstances or with respect to certain employers.”
• OMB review is the last step in the rulemaking process before the agency can publish the proposal. DHS will post text for public inspection at least a day before officially publishing it in the Federal Register.
• The proposal is classified as a “proposed rule,” meaning it would go through a notice-and-comment period before being finalized.
• U.S. Immigration and Customs Enforcement (ICE) has provided temporary Form I-9 flexibilities that allow for remote document verification in some cases for certain employers who are operating remotely because of COVID-19. The temporary flexibilities will remain in place through at least Oct. 31.

Additional Information: U.S. Citizenship and Immigration Services (USCIS) is working on a separate rule to provide a new version of the Form I-9. The agency proposed a revised form in March and accepted comments on it through May 31. Officials must review the comments before finalizing revisions. The agency may make additional changes in response to comments, and will announce when a new form version will become mandatory.

BAL Analysis: DHS said that the proposal it sent to OMB may “reduce burdens on employers and employees while maintaining the integrity of the employment verification process.” BAL has welcomed the temporary flexibilities and has urged USCIS to make remote verification available permanently. BAL will continue following the proposal through the regulatory process and will provide updates as information becomes 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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