DHS Announces Proposed Changes to Form I-9 and Verification Process

Recently, the U.S. Department of Homeland Security (DHS) introduced a proposed rule that would bring changes to Form I-9 and the verification process. Briefly, the proposed rule would allow for alternative options for examining I-9 verification documents for some or all employers. While employers should expect a new Form I-9 every three years or so, rarely does the DHS make changes to the verification process itself. In April 2022, the U.S. Immigration and Customs Enforcement (ICE) extended its Form I-9 compliance flexibility first announced in March 2021. The temporary flexibility exempted remote employees from physical document inspections during the COVID-19 pandemic. The extension and the current version of Form I-9 expire on October 31st, 2022.

Brief Overview of Form I-9

Created under the Immigration Reform and Control Act (IRCA), Form I-9 Employment Eligibility Verification helps U.S. employers verify their workers' identity and employment authorization. Employers must accurately complete a Form I-9 for each employee, whether they are citizens or noncitizens. In addition, employees must present acceptable documents that verify their identity and authorization to work in the U.S. Finally, employers must retain a Form I-9 for each employee for three years after the date of hire or one year after employment ends, whichever is later.

Proposed Rulemaking and Changes to Form I-9 Verification

Under the proposed rule, Optional Alternatives to the Physical Document Examination Associated With Employment Eligibility Verification (Form I-9), the Secretary of Homeland Security could allow alternative options, like remote inspection, when examining I-9 documents. Instances when such alternative options would apply include during a public health emergency or national emergency. Additionally, employers may see alternative document examination procedures as part of a pilot program. Other proposed changes to Form I-9 verification address:

• Document retention requirements, including those that were applicable during the pandemic-era flexibility period or requiring employers to retain copies of documents via video, fax, or email;
• Informing ICE officials when using an alternative document verification process; and
• Employer training to detect fraudulent documents while avoiding discrimination.

Changes to Form I-9 Itself

Additionally, the DHS is proposing changes to Form I-9 itself. These changes would simplify the document and incorporate the proposed changes to the Form I-9 verification process. In particular, the changes include:

• adding a box to indicate an alternative verification process,
• consolidating Sections 1 and 2 to one page,
• reducing Form I-9 instructions from 15 to just seven pages,
• providing a link to List C documents on the digital Form I-9, and
• making Form I-9 compatible with all electronic devices.

The DHS invites employers and other interested parties to submit data, viewpoints, and other public comments as a part of the rulemaking process. Interested parties may send comments via the federal e-Rulemaking portal for this proposed rule. Parties will have until October 17th, 2022, to comment. After that date, the DHS will issue its final rule.