In 1986, Congress reformed U.S. immigration laws by passing the Immigration Reform and Control Act of 1986 (IRCA). IRCA prompted the creation of the Form I-9, Employment Eligibility Verification, which was designated as the means of documenting that the employer verified an employee’s identity and U.S. employment authorization.

Since the Form I-9 became a requirement for all U.S. employers hiring new employees, one key rule has remained unchanged. Within three business days after the first day of employment employers must “physically examine” the documentation presented by new employees from the Lists of Acceptable Documents to ensure that the presented documentation appears to be genuine and to relate to the individual who presents them.

During the pandemic, DHS waived requirements that employers inspect documents 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.

The Department of Homeland Security (DHS) has now announced a proposed rule allowing virtual document examination options for reviewing the Form I-9 “in certain circumstances or with respect to certain employers.”

This proposed rule would create a framework under which the Secretary of Homeland Security could authorize alternative options for document examination procedures with respect to some or all employers.

Such procedures could be implemented as part of a pilot program, or upon the Secretary’s determination that such procedures offer an equivalent level of security, or as a temporary measure to address a public health emergency declared by the Secretary of Health and Human Services pursuant to Section 319 of the Public Health Service Act, or a national emergency declared by the President pursuant to Sections 201 and 301 of the National Emergencies Act.

This proposed rule would allow employers (or agents acting on an employer’s behalf) optional alternatives for examining the documentation presented by individuals seeking to establish identity and employment authorization for purposes of completing the Form I-9,

Electronic comments to this proposal must be submitted on or before October 17, 2022. A number of methods of communication are provided in the announcement.

DHS encourages all interested parties to participate in this rulemaking by submitting data, views, comments, and arguments on all aspects of this proposed rule. Comments providing the most assistance to DHS will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include the data, information, or authority that supports the recommended change.

Emily Dickens, chief of staff and head of government affairs for the Society for Human Resource Management (SHRM) commented on this proposal that “Not only have the burdens and hazards of in-person I-9 preparation grown, but technology has advanced to a point where the believed benefits of in-person I-9 preparation are now equaled or exceeded by remote or virtual methods. Moreover, a remote I-9 preparation option would transform the entire onboarding process, enabling the process to be accomplished remotely.”

Scott Corley, executive director of Compete America, a coalition advocating for high-skilled immigration reform, also supports making remote document examination a permanent option for employers, in addition to an in-person review option. “Both companies and their employees would benefit from the flexibility to elect to complete the entire Form I-9 process electronically without a follow-up physical review requirement,” he said.