Public Input Requested on Form I-9 Flexibility

The Department of Homeland Security (DHS) is asking for public comments on Form I-9 proposed rulemaking.

The impact of COVID-19 on how companies do business is ongoing. Hybrid and remote workforces may result in certain I-9 flexibility policies eventually being here to stay.

Long History of Extensions to I-9 Compliance Flexibility

During the pandemic, DHS introduced temporary I-9 compliance flexibility.  First started in March 2020, DHS allowed temporary compliance flexibility for specific I-9 physical presence requirements. This flexibility has continued to be extended, with the most recent announcement extending compliance flexibility to October 31, 2022.

Last year the DHS asked for public comments related to I-9 document examination practices.

Proposed Rule Could Make Flexibility a Fixture

The DHS has recently announced another Notice of Proposed Rulemaking, stating:

“This proposed rule would create a framework under which the Secretary of Homeland Security could authorize alternatives to the current requirement that employers (or authorized representatives acting on an employer’s behalf) physically examine documentation presented by individuals seeking to establish identity and employment authorization for the purposes of the Form I-9, Employment Eligibility Verification. Such alternatives could be put in place through a pilot program, for some or all employers (or authorized representatives acting on an employer’s behalf), or as a temporary measure.”

There’s still time for employers to have their voice heard. A comment period for the proposed rule is open.

The DHS recognizes that more employers may have adopted telework and remote work arrangements since the start of the pandemic.

Considering these technological advances and new work arrangements, the DHS is exploring alternative options, including making some pandemic-related flexibilities permanent to examine Form I-9 identity and employment authorization documents. The rule, however, would not create an alternative process by itself but would formalize the authority of the Secretary of Homeland Security to extend flexibilities, provide alternative options, or conduct a pilot program further to evaluate alternative procedures for some or all employers.

You have the chance to share your voice. Interested parties can view the proposed rule and leave comments by visiting regulations.gov by October 17, 2022.

The DHS does stress that:

All interested parties 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.”

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