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July 2022: DHS to Propose Permanent Remote Form I-9 Verification Rule

21 Jul


Update Applicable to:
All employers operating remotely.

What happened?
The DHS announced it plans to issue a proposed rule that would allow employers to verify employee identity and employment eligibility documentation virtually “in certain circumstances or with respect to certain employers” when completing Form I-9 verification requirements.

What are the details?

What Will the Proposed Form I-9 Rule Address?
Federal law requires employers to physically examine documents that confirm an employee’s identity and employment eligibility documentation to determine if it reasonably appears genuine and relates to the employee presenting it.

On March 19, 2020, in response to the COVID-19 pandemic, the DHS allowed an exemption, permitting employers operating remotely to conduct virtual verification of an employee’s approved Form I-9 documents. Qualifying employers could review an employee’s identity and employment eligibility documentation over videoconference, fax, or email. This remote verification exemption is set to expire on October 31, 2022.

While the details are still unknown, the DHS’s proposed rule could provide an alternative to the in-person verification procedure that is similar to the temporary process due to the COVID-19 pandemic. Last fall, the DHS issued a request for public comment on alternatives to physical document examination for Form I-9 verification. Many employers endorse virtual Form I-9 verification, believing it is more efficient and cost-effective, and are requesting improved remote examination options.

Additionally, the pandemic forced many employers to transition to remote work environments. Remote work arrangements have grown in popularity among employees and are now becoming the new norm. Thus, remote verification would be beneficial for these employers and employees.

What’s Next?
The DHS’s proposal is currently being reviewed by the Office of Information and Regulatory Affairs, the final step before publishing a proposed rule in the Federal Register. Once the DHS publishes a proposed rule in the Federal Register, there will be time designated for public comment. Subsequently, the department will review comments and determine whether to move forward with a final rule.

For more information, please see the links below:

DHS Announcement


What do employers need to do?
Employers should review the links provided above and may continue conducting remote verifications until the end of October 2022. Employers should also follow the DHS’s rulemaking process closely for updates.

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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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