Since March 2020, the USCIS has allowed virtual, remote I-9 verification where all employees are working remotely due to COVID, or when a new employee, post April 1, 2021, is working remotely due to COVID. Many employers as well as immigration attorneys have been clamoring for virtual, remote I-9 verification regardless of remote work. It looks like the Department of Homeland Security (DHS) has heard the pleas for this much-needed modernization of I-9 compliance.

On August 18, 2022, the DHS proposed the possibility of virtual, remote verification even if employees are not working remotely. DHS has requested comments from the general public on this subject. If this proposal is implemented, it could be a major change and improvement in the world of I-9 compliance.

In its request for comment, DHS stated it is looking at several ideas for remote, virtual verification, including a pilot program; one where the DHS secretary authorizes such due to a public health emergency, such as COVID; or as a permanent program. Many employers are in favor of a permanent option, and it might be the one most likely to be implemented as long as employers meet certain criteria. Possible criteria being explored are an employer’s being enrolled in and utilizing E-Verify, attending an online DHS course on detecting fraudulent documentation, and retaining copies of documentation (this last criterion is not required under federal law but is normally considered an option).

Additionally, DHS has discussed employers’ being preluded because of a fine, settlement or conviction related to Form I-9 practices.  This criterion appears to be susceptible to many factors, such as what type of violations an employer committed to receive a fine or settlement—e.g., substantive paperwork violations or knowingly hiring undocumented workers? There is a vast difference between these two types of violations, and it could be argued an employer committing substantive paperwork violations should not be precluded from this program.

Also, the amount of the fine could be a consideration. An employer being fined $10,000, for example, might be viewed in a better light than one paying $100,000. Thus, an employer paying a $100,000 fine might be precluded but not the employer paying a $10,000 fine. Another factor to consider is when the settlement or fine occurred. For instance, a recent fine might be considered grounds for exclusion, while one issued in the distant past would not. As usual, the devil will be in the details.

Attorneys and the general public have until October 17, 2022, to file their comments. Afterward, DHS will draft the proposed regulation. Then this regulation will be submitted back to the general public for comment. Given the typical pace of government rulemaking, DHS is not expected to issue a final rule on this matter until late 2023. In the meantime, Littler will keep employers apprised of any significant developments.