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September 2022: DHS Proposes Permanent Rule Allowing Remote Verification of Form I-9 Documents

30 Aug

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Update Applicable to:
All employers with remote workers.

What happened?
On August 18, the Department of Homeland Security (DHS) published a proposed Rule that would allow the government to consider possible “alternative options for document examination procedures” for employees, including reviewing employees’ I-9 documents remotely. 

What are the details?
In light of technological advances and new work arrangements—like remote work—the DHS is exploring alternative options for Form I-9 document verification. If finalized, the proposed rule would allow the DHS to create a framework to authorize alternative options for Form I-9 document examination procedures for some or all employers, according to a Notice of Proposed Rulemaking. The proposed rule would formalize the department’s authority to extend flexibilities, provide alternative options and conduct pilot programs to further evaluate alternative procedures for some or all employers, regardless of whether their employees physically report to work at an employer worksite.

Additionally, the DHS proposed updating Form I-9 to allow employers to indicate whether they inspected employee identity and employment authorization documents using alternative procedures, like remote verification. The department has requested input on several issues, such as protecting privacy, fraudulent document detection, and anti-discrimination training.

On August 18, 2022, the DHS formally published the proposed rule in the Federal Register; 60 days are provided for public comment. Subsequently, the department will review comments and determine whether to move forward with a final rule. Experts expect the DHS to implement a permanent rule allowing remote verification of Form I-9 documents. Eligible employers operating remotely can continue utilizing the flexibilities extended during the COVID-19 pandemic to conduct remote verifications until the end of October.

Society for Human Resource Management (SHRM) has provided a document containing the key takeaways of this proposed rule. It can be read here.

For more information, please see the links below:

DHS Proposed Rule

Key Takeaways Provided by SHRM

Article 1Article 2

What do employers need to do?
Employers should review the links provided above and may want to follow the DHS’s rule-making process to ensure they are up to date. Vensure will continue to monitor this and provide more communication once more updates have been received.

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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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