DHS Proposed Rule on Alternatives for I-9 Document Review

Form I-9, employment eligibility verification, is used to verify the identity and employment authorization of individuals hired for employment in the United States. This is required by all U.S. employers for everyone they hire for employment in the United States. Both the employer and employee are required to complete the form.  As part of the completing the Form I-9, the employer is required to examine the employment eligibility and identity document(s) an employee presents for the employer to determine if the document(s) reasonably appear to be genuine.

At the onset of COVID, with remote work becoming a new norm, Department of Homeland Security (DHS) issued temporary guidance giving employer the ability to review these documents remotely. Specifically, employers are allowed to view documents via email, video, or fax as long as they can retain copies of the documents. This authorization/flexibility is set to expire on October 31, 2022.

On August 18, 2022, DHS published a notice of proposed rulemaking (NPRM) on the optional alternatives to the physical document required by Form I-9. The proposal will not change the I-9 process thereby allowing employers to permanently use such an alternative review option in the future but would rather create a blueprint to give DHS more flexibility to determine the time and way to alter the requirement to physical inspection in times of need such as a national health crisis. Additionally, under the rule DHS would have broad authority to be able to implement permanent changes to the process after a limited pilot program.

The public has 60 days, until October 17, 2022, to comment on the proposed rule.