The Office of Management and Budget (OMB) cleared a rule allowing the Department of Homeland Security (DHS) alternatives to physically inspecting Form I-9 documents.

This regulation is called the “Optional Alternative to the Physical Examination Associated With Employment Eligibility Verification (Form I-9).” The DHS and the U.S. Immigration and Customs Enforcement (ICE) proposed this regulation. This proposal, reviewed since June 2022, intends to offer employers an alternative to physically inspecting the identity documents used in the Form I-9.

The specifics of the proposed regulation remain unknown. However, many hope the remote inspection allowed by the temporary flexibility for inspecting the Form I-9 during the COVID-19 pandemic is in the proposal. These interim flexibilities will continue through October 31, 2022.

According to the DHS’s temporary flexibilities, “[employers] taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Section 2 documents remotely (e.g., over a video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents within three business days for purposes of completing Section 2.” There have been some changes to the flexibilities over time, but the basic process has remained the same.

The regulation will soon be available in the Federal Register now that it has cleared the OMB review. Though set for publication in July, it remains unpublished. Once published, the public will have the opportunity to submit feedback on the proposal.

Essential Points

• The specific details of the proposal remain unknown. However, the DHS has stated it would permit the Secretary of Homeland Security to authorize alternative document examination procedures available for certain employers.
• Reviewing the proposed regulation by the OMB is the last step in the regulatory process before the proposal can be published. However, the public expects to inspect the text a minimum of one day before official publication.
• There will be a notice-and-comment period for the proposal. During this period, the public can submit feedback before finalizing the submission.
• There are currently temporary Form I-9 flexibilities due to the COVID-19 pandemic. The flexibilities allow eligible employers to examine I-9 documents remotely in some cases. These flexibilities are due to end on October 31.

What’s Next?

Once finalized, it will help many employers with employees still working remotely or in a hybrid arrangement. In addition, this rule would make completing Form I-9 easier for many employers and employees by giving them more options.

However, completing Form I-9 (remotely or in person) can be confusing, especially when hiring foreign nationals. There are many different documents they can choose to present, and the regulations frequently change. The easiest way to ensure complete and correct Form I-9s is by using an electronic I-9 management system. This system guides hiring personnel throughout the process, ensuring accurate and complete forms. It also safely stores the records and allows easy retrieval of the Form I-9 and any accompanying documents when needed.

When it comes to your employees, automation makes eligibility verification quick and simple. Ensure compliance today with I-9 Compliance.

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