Virtual Form I-9 Document Examination: Here to Stay?

As automobile manufacturers continue to navigate remote work decisions, employers should remain cognizant of onboarding process and document retention implications due to the possibility of virtual or alternative Form I-9 document examination.

On August 18, 2022, the Department of Homeland Security proposed a rule that considers virtual alternatives to verifying and/or examining Form I-9 documentation. The Department cites remote work arrangements as the need for the proposed change.

Prior to COVID-19, the Immigration Reform and Control Act required employers to physically examine documentation related to identity and employment authorization within three days of an employee’s first day of employment. On March 20, 2020, due to the COVID-19 pandemic, ICE allowed employers to examine a remote employee’s Form I-9 documents through video, fax, or email. ICE extended these virtual options with the latest extension set to expire on October 31, 2022.

Now, the Department proposes permanent changes to the Form I-9 process to account for remote workforces; however, the rule does not specifically authorize virtual examination. Instead, the proposed rule allows the Secretary to adopt these virtual, alternative procedures through a pilot program, only in the event of a public health emergency or national emergency (as specifically defined) and/or only as to certain employers.

The Department is considering the following:

• Virtual Document Examination: The implementation of virtual, alternative procedures for examining Form I-9 identity and employment eligibility documentation;
• Who May Use Alternative Methods?: Use of alternative methods may be limited to employers who have enrolled in and are in good standing with E-Verify and/or there may be limitations to the use of alternative methods if an employer has been subject to a fine, settlement or conviction related to the verification process.
• Updated Form I-9 (Indicating Alternative Method(s) Were Used): An updated Form I-9 that includes a section for employers to indicate whether alternative procedures were used;
• Document Retention: The retention of physical documents regardless of the examination method used;
• Fraud Detection Training: A requirement that employers participate in a training on detecting fraudulent documents; and
• Anti-Discrimination Training: A requirement that employers participate in an anti-discrimination training as it relates to examining identity and/or employment authorization documents.

It is important for employers to keep abreast of these potential changes in the law, especially those that have transitioned to a remote or hybrid workforce. These changes may permanently impact the hiring process and eliminate the need to examine Form I-9 documents in person (at least for remote workers). Additionally, because the Department may require E-Verify enrollment as a potential threshold issue, employers may consider enrolling in E-Verify, if the employer wants to use the alternative Form I-9 process. Depending on how the proposed rule proceeds, employers should train employees on how to effectively review Form I-9 documentation virtually and preemptively determine how to retain documents that are examined virtually.

The Department is seeking comments on the various proposed changes through October 17, 2022.