A proposed rule that would allow the Department of Homeland Security (DHS) to provide optional alternatives to physical document examination in the Form I-9 process has cleared White House Office of Management and Budget (OMB) review.

Key Points:

  • The text of the proposed rule is not yet available, but the DHS has said it would “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 the text for public inspection at least a day before the proposed rule is officially published.
  • The proposal will go through a notice-and-comment period, during which any member of the public may submit feedback, 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 eligible employers who are operating remotely because of COVID-19. The temporary flexibilities are currently scheduled to expire on Oct. 31.

BAL Analysis: DHS said that the proposed rule would “reduce burdens on employers and employees while maintaining the integrity of the employment verification process.” U.S. employers and business coalitions, including BAL, have 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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