09/6/22

On the horizon: Coming October 31, 2022, your updated Form I-9

By Sophie M. Deitrich, SHRM-CP, Small Business HR Lead, Compliance Center

Thanks to the COVID-19 pandemic and the continued safety precautions surrounding it, since March of 2020, employers have had to pivot their Form I-9, Employment Eligibility Verification, process due to the surge of remote workers. To accommodate the onslaught of hiring remote workers, the Department of Homeland Security (“DHS”) and U.S. Immigration and Customs Enforcement (ICE), implemented flexibilities for employers, allowing for the virtual inspection of remote employees’ identity and employment eligibility documentation via video link, fax or email, etc. DHS and ICE allowed for delay in the requirement that employers conduct physical, in-person inspections of employee’s original identity and employment eligibility documents. Once employees physically reported back to work at their company location on a regular, consistent or predictable basis, then a physical, in-person inspection was required to be completed within 3 days of the employees’ return.

This flexibility has been extended multiple times, with the most recent extension set to expire on October 31, 2022. With the expiration date nearing, on August 18, 2022, DHS published a Proposed Rule titled Optional Alternatives to the Physical Document Examination Associated With Employment Eligibility Verification (Form I-9). The Proposed Rule recognized that the COVID-19 pandemic caused more employers to adopt remote work arrangements, and observed that with 61 percent of workers choosing to continue working remotely, there is a potential for employees to be permanently affected by changing work patterns. The Proposed Rule does not specifically identify a change to the document review process. Rather the Proposed Rule gives DHS discretion to authorize future changes to the Employment Eligibility Verification process. This could provide employers long-term alternatives to physically reviewing documents and make permanent some of the current pandemic-related flexibilities.

Some examples of possible future changes could include:

• providing new, alternative options for remote document inspection;
• conducting pilot programs to evaluate these new options;
• adding a selection box to indicate that alternative methods of document inspection were used;
• requiring additional training on fraudulent document detection and anti-discrimination training;
• providing guidance on how to centralize the completion of the I-9, by designating a local authorized representative properly trained on the requirements when employees are hired, reverified, or rehired.

This consolidation could lessen the administrative burden for employers who have a large number of employees working remotely throughout the country. Employers could experience tangible benefits if DHS reduces the administrative hassle of locating an authorized representatives at remote worksites, including less paperwork violations from using inexperienced representatives, lower costs associated with hiring remote representatives, and fewer fines related to I-9 errors.

While employers everywhere wait for this new guidance to be released (and the new Form I-9 that we’ll share once available), employers should continue tracking any remote new hires/reverifications/rehires who will need to have their I-9s updated upon returning to work in-person, or at the end of this flexibility period. If you’re not tracking yet, now is the time to begin and to identify any employee that will be affected. Remember:

• The guidance from DHS and ICE applies only to COVID-19-related temporary remote assignments. Employees who are hired for a permanently remote position must have their documents physically inspected by a remote Authorized Representative.
• Wherever possible and safe to do so, complete your Forms I-9 in-person, recording both the remote inspection information (hopefully already recorded) and updating the virtual inspection in the Additional Information field provided on the Form I-9. Begin to phase out your virtual I-9 process when required.
• Institute a policy surrounding making copies of identity and work authorization documents.
• If applicable, work with your electronic I-9 vendor to disclose virtual I-9 reporting and confirm how to update forms based on the vendors requirements, paper verses electronic updates, for example.
• If applicable, ensure that you are timely running E-Verify queries.
• ICE has begun conducting I-9 inspections, so ensure your Forms I-9s are compliant, and that any related processes include best practices.

Keep an eye out for future changes in this area over the next month. The new struggles created by the pandemic also helped to find new efficiencies which we are seeing play out here in the proposed changes to the Form I-9 process.

If the proposed rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, the DHS provided the following contact information for the submission of comments or questions.

Sharon Hageman, Deputy Assistant Director,
Office of Regulatory Affairs and Policy, U.S. Immigration and Customs Enforcement, Department of Homeland Security,
500 12th Street SW, Washington, DC 20536.
Telephone 202-732-6960

Our partner attorneys and HR professionals at the Flores HR Compliance Center can help ensure your policies are up to date, advise on the best practices for conducting thorough investigations, and guide companies through performance management and termination decisions. To learn more about this Flores service offering, reach out to your Flores Account Manager or Business Development Director, or contact us

The information presented in this post is current as of the publication date. The information included does not constitute legal advice.