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DHS Seeking Public Comments on Optional Alternatives to the Physical Document Examination Associated with Form I-9 Verification

As we previously reported, the Department of Homeland Security (DHS) continues their progression towards issuing a proposed rule to permanently allow virtual document examination options for reviewing the Form I-9 in certain circumstances is advancing. On August 18, 2022, DHS released a Notice of Proposed Rule Making (proposed rule).

The proposed rule does not address the ability to establish remote verification of Form I-9 on permanent basis. Any specific new procedures such as permitted remote verification of documents for review would be proposed in a separate rulemaking. However, the proposed rule does 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 as extending flexibilities, providing alternative options, or conducting a pilot program to further evaluate alternative procedures.

Next Steps for Employers

DHS encourages all interested parties to participate in this rulemaking by submitting data, views, comments, and arguments on all aspects of this proposed rule and is requesting input on several questions from employers, such as ways to reduce fraud, avoid discrimination in the I-9 process and protect privacy. DHS is also considering various document retention requirements applicable to remote examination, possible fraudulent document detection or anti-discrimination training requirements for employers, and whether or not only employers enrolled in E-Verify will be able to use the alternative procedures.

Employers may submit comments on the entirety of this proposed rule, identified by Docket No. ICEB-2021-0010, by visiting the Federal eRulemaking Portal and following the website instructions to submit comments. 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.

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