Final Form I-9 ‘optional alternative’ to physical examination rule under White House review

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

Key Points:

• OMB review is the last step in the rulemaking process before the department can publish the rule.
• The department proposed the regulation in August 2022 and received more than 500 comments from the public.
• DHS is targeting August for publication of the final rule.
• 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.

Additional Information: 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 will continue to monitor the progress of the rule and 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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