U.S. Citizenship and Immigration Services' revised and updated I-9 form, required to verify identity and employment authorization, is due out Oct. 31.
While it includes many helpful changes, it lacks the one most coveted by employers: a permanent rule allowing remote verification of I-9 documents and elimination of the physical inspection requirement.
The comment period for changes to the current I-9 form closed May 31.
The proposed changes include reducing the form to one page; including in Section 3 three separate areas to enter reverification information; linking to a USCIS site that shows all acceptable U.S. Department of Homeland Security-issued List C documents; and removing the PDF restrictions so that the form can be more easily completed on all electronic devices.
Yet amid all this progress, the COVID-19-era accommodation still in effect today, which allows employers to remotely inspect I-9 documents, was not included in the changes.
On March 20, 2020, USCIS announced that employers who were operating 100% remotely were no longer required to see employees' original I-9 documents at the time of hire and could inspect documents virtually. This limited accommodation did not apply to employers who were still working in-person or had a hybrid workforce.
The accommodation also required that all employees inspected remotely would have to have their original documents inspected within three days of the company's return to in-person working, whatever the percentage.
This accommodation was extended several times during 2020 and 2021.
On April 1, 2021, USCIS expanded the policy to include hybrid workforces. To further ease employers' I-9 burden, USCIS also confirmed that an employee who provided documentation virtually would be exempt from the physical inspection requirement until they resume nonremote employment on a regular, consistent, or predictable basis, or until the extension of flexibilities related to such requirements ended, whichever was earlier.
This policy was extended several times, and is currently in effect until Oct. 31.
Unfortunately, whenever I-9 remote document inspection flexibility ends ― whether on Oct. 31 or later if USCIS extends the policy again ― every employee onboarded using remote verification will have to provide their original documents to the employer or the employer's designee for physical inspection within three business days of the policy end date.
Employers planning for the end of remote-verification accommodations will be thrown back into the pre-March 20, 2020, conundrum of how to inspect the original documents of fully remote employees. Prior to the pandemic, this was the most-asked I-9 question ― and also one with no good answer.
Some employers enlisted notary associations, designing instruction sheets and notary affidavits, so notaries could complete the I-9s for employees living too far from the office for their I-9 to be completed in person.
Universities enlisted human resources counterparts in sister schools in far-flung states where remote workers could go to have their documents reviewed in person.
Fully virtual companies and startups allowed family members of employees to sign the I-9 form as the employer's designee, after reviewing their relative's original documents.
These solutions never worked well and no one was happy with them, but for the most part, employers got by the best they could.
However, there may be some hope on the horizon. On Oct. 26, 2021, USCIS published a request for employer feedback on remote verification through a Federal Register notice. Comments were due by Dec. 27, 2021.
The request for public input stated:
DHS solicits this input to better understand employers' and employees' experiences with this process [remote verification] and to examine the impacts of remote document examination conducted during the Coronavirus disease (COVID-19) pandemic. DHS especially seeks to understand the potential costs and benefits of allowing for future remote document examination flexibilities.
The Federal Register notice is set up as a series of questions for employers to consider and answer. The first half of the questions elicit information from employers on their I-9 processes during the pandemic, including the who, what and where of how they reviewed documents and completed forms for both remote and in-office employees.
The second half of the questions looks to the future, asking employers to posit on how a permanent remote-verification option would affect their operations.
Probably the most telling questions in the notice about how remote verification may be implemented are the following:
7. How might participation requirements as a condition of these flexibilities, such as required enrollment in E-Verify, document or image quality or retention requirements, or required completion of training offered by DHS, impact an employer's desire or ability to utilize such a flexibility?
8. What would be the costs or benefits associated with making enrollment in E-Verify a condition of flexibilities for you, as an employer?
These questions seem to indicate that if remote verification becomes a permanent part of the I-9 process, employers will have to ante up to get it.
Whether that ante will be more onerous — such as a mandatory E-Verify registration requirement and DHS training — or less so — such as differing I-9 copying or retention requirements — remains to be seen.
If the 1997 implementation of E-Verify, the mostly voluntary electronic verification tool, is any guide, employer requirements are more likely to fall on the side of onerous.
Today, 25 years later, employers who voluntarily sign up for E-Verify are still required to complete the I-9 process, even though the E-Verify system is a much more reliable indicator of employment eligibility than individual employers reviewing government-issued immigration documents that are unfamiliar to most Americans.
The factors to be weighed, balanced and considered by the government are many and disparate.
The U.S. Department of Justice's Immigrant and Employee Rights Section is concerned about citizenship status and national origin discrimination in both the I-9 and E-Verify programs.
The occurrence of document abuse, when an employer asks for more or different documents than what is required for the I-9, is also an Immigrant and Employee Rights Section concern.
U.S. Immigration and Customs Enforcement is worried about counterfeit immigration documents and the ease with which employees are able to lie through virtual verification, while USCIS is concerned with employer compliance in general, and with ensuring the I-9 process and form are usable and sensible, among other things.
The questions posed in the Federal Register notice also suggest employers may be given opt-in ability for remote verification, leaving them to decide whether any additional requirements are worth the effort.
The employers most likely to use remote-verification processes are also those that are least likely to encounter undocumented workers, such as professional services, administration, web-based businesses, technology companies and others.
This is another factor that may persuade the government that remote verification should become a permanent option.
Finding the right balance will be difficult, but as Voltaire said, "Do not let the perfect be the enemy of the good."
A remote-verification policy under which employers are not required to physically inspect original documents but are required to make other concessions, such as additional training or additional record keeping, would be well worth the effort.
Let's hope USCIS proposes a reasonable, rational policy in the very near future, so employers can continue to use remote verification without interruption after the temporary policy ends.
Reprinted with permission of Law360.