HR professionals erupted in jubilation on social media last week upon hearing that the Department of Homeland Security (DHS) was taking long-awaited next steps in allowing a permanent remote I-9 document inspection option.
But as SHRM Online reported on the day of the announcement, the government is only exploring a virtual verification option, and no new alternatives have been authorized.
The proposed rule is a “first, tentative step,” said Michael Neifach, an attorney in the Washington, D.C., regional office of Jackson Lewis. “This proposal does not authorize permanent flexibility, nor does it provide alternatives. Instead, it gives DHS the ability to authorize changes to the process in the future. Such changes could be temporary or permanent and could apply to all or only some employers.”
The proposed rule will provide DHS with the regulatory framework—or “a green light”—to set up a virtual alternative for some or all employers going forward, said Avram Morrell, an attorney in the New York City office of Pryor Cashman. “This new rule does not require DHS to make these changes, but it is clear that there is a mandate to try to move in this direction to accommodate the new remote economy. This is a huge step that could potentially benefit enormous numbers of employees.”
The Society for Human Resource Management (SHRM) recognized the proposed rule as signaling the government’s willingness to formalize pandemic-era flexibilities and permit permanent remote inspection of employee identification and employment authorization documents during the I-9 process.
“We are encouraged by the efforts of DHS and their openness to adjusting the employment verification process to reflect the 21st century workforce,” said Emily M. Dickens, chief of staff and head of government affairs for SHRM. “At the same time, we had hoped to see a more fully developed proposed rule because many employers find the traditional Form I-9 processes to be burdensome. SHRM will continue to partner with DHS to offer our expertise to ensure the final regulation reflects the reality of the workforce, HR processes, and current and emerging technology.”
Employers must complete a Form I-9 for all workers to verify employment eligibility. During the COVID-19 pandemic, DHS waived requirements that employers inspect documents proving employment eligibility in person in workplaces that were operating remotely, and those employers have been allowed to use alternatives like videoconferencing, fax or e-mail. That flexibility was most recently extended through the end of October.
Seeking Input from HR
John Fay, an immigration attorney and president of the LawLogix division of Hyland Software, a company that specializes in cloud-based I-9, E-Verify and immigration case management services, noted that this is the second time in the past year that DHS is asking for public comments on the potential benefits and burdens of alternative Form I-9 document inspection methods.
DHS first announced their intention to offer a more permanent version of its virtual verification option for examining I-9 documents in October 2021.
“Hundreds of HR managers and attorneys wrote-in suggestions and pleas advocating for a sensible I-9 inspection policy that takes into account the proliferation of remote work in the U.S. and the increasing costs and burdens for employers in conducting an in-person inspection for hires and rehires,” Fay said.
Neifach said the benefits of allowing employers to conduct Form I-9 verifications remotely include enabling companies to centralize their I-9 processes, eliminating the need to hire agents who may not be as experienced to conduct remote verifications and making it easier to hire key employees who might work remotely.
“Such flexibility would eliminate barriers to hiring individuals for whom remote work is a necessity, such as those who live in rural areas or have physical disabilities that make it impossible to attend an in-person I-9…
Read More: No Permanent Virtual I-9 Option Yet