The Department of Homeland Security (DHS) will publish a proposed rule tomorrow that would allow the agency to provide optional alternatives to physical document examination in some scenarios in the Form I-9 process.

Key Points:

  • The proposal would not make immediate changes to the Form I-9 process.
  • The proposal would give DHS formal authority to allow alternatives to in-person review of physical Form I-9 documents:
    • As part of a pilot program.
    • Upon DHS’ determination that such procedures offer an equivalent level of security.
    • As a temporary measure to address a public health or national emergency.
  • The proposed rule will be published in the Federal Register tomorrow, Aug. 18. A prepublication version is available here. Once the proposal is published, DHS will accept comments from the public for 60 days.
  • DHS will also propose changes to the Form I-9 and instructions to allow employers to indicate when they rely on alternative document examination procedures.
  • DHS will seek input from the public on ways to reduce risks to the integrity of any alternative procedure, avoid discrimination and protect privacy interests.

Background: U.S. Immigration and Customs Enforcement (ICE) has provided temporary Form I-9 flexibilities that allow for remote document verification in some cases for eligible employers who are operating remotely because of COVID-19. The temporary flexibilities are currently scheduled to expire on Oct. 31. U.S. employers and business coalitions, including BAL, have urged DHS to make remote verification available permanently.

BAL Analysis: While the DHS proposal does not directly authorize remote document examination, it would create a legal structure that would allow the government to use alternative processes in the future. DHS also said it is “exploring alternative options” including making some of the COVID-19 measures permanent. BAL will continue to follow the possible changes on the Form I-9 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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