Notice2021-23260
Remote Document Examination for Form I-9, Employment Eligibility Verification: Request for Public Input
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 26, 2021
Issuing agencies
Homeland Security DepartmentU.S. Citizenship and Immigration Services
Abstract
The Department of Homeland Security (DHS) is seeking input from the public regarding document examination practices associated with the Form I-9, Employment Eligibility Verification. DHS solicits this input to better understand employers' and employees' experiences with this process and to examine the impacts of remote document examination conducted during the Coronavirus disease (COVID-19) pandemic. DHS especially seeks to understand the potential costs and benefits of allowing for future remote document examination flexibilities.
Full Text
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<title>Federal Register, Volume 86 Issue 204 (Tuesday, October 26, 2021)</title>
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[Federal Register Volume 86, Number 204 (Tuesday, October 26, 2021)]
[Notices]
[Pages 59183-59185]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-23260]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Citizenship and Immigration Services
[CIS No. 2702-21; DHS Docket No. USCIS-2021-0022]
Remote Document Examination for Form I-9, Employment Eligibility
Verification: Request for Public Input
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Request for public input.
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SUMMARY: The Department of Homeland Security (DHS) is seeking input
from the public regarding document examination practices associated
with the Form I-9, Employment Eligibility Verification. DHS solicits
this input to better understand employers' and employees' experiences
with this process and to examine the impacts of remote document
examination conducted during the Coronavirus disease (COVID-19)
pandemic. DHS especially seeks to understand the potential costs and
benefits of allowing for future remote document examination
flexibilities.
DATES: Written comments are requested on or before December 27, 2021.
Late-filed comments will be considered to the extent practicable.
ADDRESSES: You may submit comments, identified by docket number USCIS-
2021-0022, through the Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow the instructions for submitting comments.
Comments submitted in a manner other than the one listed above,
including emails or letters sent to DHS or USCIS officials, may not be
reviewed by DHS in connection with this notice. Please note that DHS
and USCIS cannot accept any comments that are hand delivered or
couriered. In addition, USCIS cannot accept comments contained on any
form of digital media storage devices, such as CDs/DVDs and USB drives.
USCIS is not accepting mailed comments at this time. If you cannot
submit your comment by using <a href="http://www.regulations.gov">http://www.regulations.gov</a>, please contact
Samantha Deshommes, Chief, Regulatory Coordination Division, Office of
Policy and Strategy, U.S. Citizenship and Immigration Services,
Department of Homeland Security, by telephone at 240-721-3000 for
alternate submission instructions.
FOR FURTHER INFORMATION CONTACT: Oscar Lujan, Associate Chief for
Policy and Guidance, Verification Division, Immigration Records and
Identity Services Directorate, U.S. Citizenship and Immigration
Services, DHS, 5900 Capital Gateway Drive, Camp Springs, MD 20746;
telephone 240-721-3000 (this is not a toll-free number). Individuals
with hearing or speech impairments may access the telephone numbers
above via TTY by calling the toll-free Federal Information Relay
Service at 1-877-889-5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
[[Page 59184]]
I. Public Participation
Interested persons are invited to comment on this notice by
submitting written data, views, or arguments using the method
identified in the ADDRESSES section.
Instructions: All submissions must include the docket number for
this notice. Comments received may be posted without change to <a href="http://www.regulations.gov">http://www.regulations.gov</a> including any personal information provided.
Docket: For access to the docket to read background documents or
comments, go to <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
II. Background
For over three decades, federal law has required that every
employer must attest on a form established by regulation that it has
verified that the employee is authorized for employment in the United
States.\1\ The Form I-9 is used to verify the employee's identity and
employment eligibility as required by 8 U.S.C. 1324a(b), which calls
for the employer to ``examin[e]'' documentation provided by the
individual and then, if the documentation reasonably appears on its
face to be genuine, attest that ``it has verified that the individual
is not an unauthorized alien by examining the document[ation]''
provided. 8 CFR 274a.2(b)(1)(ii)(A) requires that every employer
``[p]hysically examine'' and then attest that the documents appear to
be genuine and to relate to the person presenting them. If an employee
presents a document that does not reasonably appear to be genuine or to
relate to him or her, the employer must reject that document and may
ask the employee to present other acceptable documents that satisfy the
requirements of Form I-9.
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\1\ Immigration Reform and Control Act of 1986, Public Law 99-
603, 100 Stat. 3359, Part A, 101 (Nov. 6, 1986), codified at 8
U.S.C. 1324a(b), 8 CFR 274a.2(b)(1).
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COVID-19 was declared a National Emergency on March 13, 2020, and
on March 20, 2020, DHS announced \2\ that it would defer the physical
presence requirements associated with Form I-9. DHS permitted employers
with employees taking physical proximity precautions due to COVID-19 to
examine their employees' identity and employment eligibility documents
remotely (for example, over video link, fax, or email, etc.). Then,
within three business days after the termination of the National
Emergency, DHS would require employers to obtain, inspect, and retain
copies of the documents and enter ``COVID-19'' in Section 2 as the
reason for the physical inspection delay. Prior to April 1, 2021, these
flexibilities only applied to employers and workplaces operating
exclusively remotely. If employees were physically present at a work
location, DHS offered no exception to the in-person verification of
identity and employment eligibility documentation. These flexibilities
were initially allowed for a period of 60 days and were subsequently
extended several times.
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\2\ U.S. Immigration and Customs Enforcement, ``DHS announces
flexibility in requirements related to Form I-9 compliance,''
<a href="https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance">https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance</a> (last visited Sept. 24,
2021).
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DHS then issued guidance on March 31, 2021,\3\ that specified: (a)
The requirement that employers inspect employees' Form I-9 identity and
employment eligibility documentation in-person applies only to those
employees who physically report to work at a company location on any
regular, consistent, or predictable basis; (b) employees hired on or
after April 1, 2021, who work exclusively in a remote setting due to
COVID-19-related precautions, are temporarily exempt from the physical
inspection requirements until they undertake non-remote employment on a
regular, consistent, or predictable basis, or the extension of the
flexibilities related to such requirements is terminated, whichever is
earlier; and (c) the flexibilities do not preclude employers from
commencing, in their discretion, the in-person verification of identity
and employment eligibility documentation for employees who were hired
on or after March 20, 2020, and presented such documents for remote
inspection in reliance on the flexibilities first announced in March
2020.
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\3\ U.S. Immigration and Customs Enforcement, ``DHS announces
flexibility in requirements related to Form I-9 compliance,''
<a href="https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance">https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance</a> (last visited Sept. 24,
2021).
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On August 31, 2021, DHS announced that the document examination
flexibilities established on March 20, 2020, were extended until
December 31, 2021.\4\
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\4\ U.S. Immigration and Customs Enforcement, ``ICE announces
extension to new employee guidance to I-9 compliance flexibility,''
<a href="https://www.ice.gov/news/releases/ice-announces-extension-new-employee-guidance-i-9-compliance-flexibility-1">https://www.ice.gov/news/releases/ice-announces-extension-new-employee-guidance-i-9-compliance-flexibility-1</a> (last visited Sept.
24, 2021).
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III. Request for Input
A. Importance of Public Input
DHS is now seeking to explore alternative options to physical
document examination that offer an equivalent or higher level of
security for identity and employment eligibility verification
purposes.\5\ Members of the public may have unique insight about ways
employers may conduct remote document examination related to the Form
I-9. DHS is interested in obtaining input from the public about its
experiences with remote document examination that can be used to inform
and improve DHS policies and processes.
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\5\ Form I-9 related provisions and requirements are found in
the Immigration Reform and Control Act of 1986, codified at sections
274A (8 U.S.C. 1324a), 274B (8 U.S.C. 1324b) and 274C (8 U.S.C.
1324c) of the Immigration and Nationality Act (INA), as well as in
implementing regulations and guidance at 8 CFR 270, 274a, 8 CFR
parts 44 and 68, and in the Handbook for Employers (M-274) <a href="https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274">https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274</a>.
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B. Maximizing the Value of Public Input
This notice contains a list of questions, the answers to which will
assist DHS in identifying processes that may reduce burdens on the
public, save costs and/or time, and/or improve efficiency. DHS
encourages public comment on these questions and seeks any other
information or data commenters believe are relevant to this request.
DHS particularly encourages comments from employers, as well as
employer organizations such as trade groups or associations, employment
recruitment and referral organizations, organizations specializing in
employee onboarding, employees, researchers and policy experts, and
other members of the public. DHS also encourages comments from small
businesses, small nonprofits, and small governmental jurisdictions with
a population of fewer than 50,000.
DHS is interested in responses to the specific questions below, as
well as the general concepts and topics identified. DHS is particularly
interested in responses describing employees' and employers' specific
experiences and input related to document examination practices. To
better categorize responses, DHS encourages respondents to identify
their role in the employment eligibility process (for example,
employer, employer association, employee), and if the respondent is an
employer, to indicate its approximate organization size by number of
employees, industry type, and whether the employer is currently
enrolled in E-Verify.
C. List of Questions for Commenters
The following non-exhaustive list of questions is meant to assist
commenters in formulating comments, and is not
[[Page 59185]]
intended to restrict the feedback that commenters may provide:
Experiences With Pandemic-Related Document Examination Flexibilities
1. Did you or your organization use the flexibilities for remote
document examination for the Form I-9 since March 20, 2020? If not,
why? If so, what was your experience using the flexibilities? How did
small employers use these flexibilities?
2. If the employer performed any remote document examinations since
March 20, 2020:
a. What were your experiences with internal technical capabilities
to perform remote document examination (for example, video quality,
image quality, document retention, etc.)?
b. What were your experiences related to employee-provided digital
images or copies of documents for retention?
c. What were your experiences related to employees' remote
completion and submission of Section 1 of the Form I-9?
d. What processes and/or technology solutions were typically used
to remotely examine documents (for example, over video link, fax, or
email, etc.)? Was the process always the same, or did it vary based on
circumstances? What, if any, internal policies were put into place
related to remote document examination practices?
e. Were any remotely examined documents rejected because they did
not relate to the individual presenting them or did not appear to be
genuine? Were there any instances in which a document was accepted
during remote examination, but upon subsequent physical inspection, the
employer determined that the document did not appear to be genuine or
did not relate to the individual presenting it? If so, what actions did
the employer take?
3. If the employer performed any remote document examinations since
March 20, 2020, and is enrolled in E-Verify:
a. Were any documents examined remotely for which E-Verify returned
an Employment Authorized result, but upon subsequent physical
examination, the employer determined that the documents did not appear
to be genuine or relate to the individual presenting them? If so, what
actions did the employer take?
b. What, if any, challenges did employers experience in
interpreting and following the requirements of participation in the E-
Verify program \6\ during the period of remote document examination?
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\6\ E-Verify Memorandum of Understanding: <a href="https://www.e-verify.gov/sites/default/files/everify/memos/MOUforEVerifyEmployer.pdf">https://www.e-verify.gov/sites/default/files/everify/memos/MOUforEVerifyEmployer.pdf</a>.
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4. What other changes did employers make to Form I-9 document
inspection procedures during the pandemic? Did employers increase use
of authorized representatives?
Considerations for Future Remote Document Examination Procedures
1. What are the direct and indirect burdens on employees and
employers related to the physical document examination requirement for
Form I-9?
2. What are the direct and indirect burdens on employees and
employers related to the use of authorized representatives to meet the
physical document examination requirement?
3. What would be the direct and indirect benefits of offering a
permanent option for remote document examination of Form I-9 identity
and work eligibility documents (for example, allowing some employers to
centralize Form I-9 processing)?
4. What would be the direct and indirect costs of offering a
permanent option for remote document examination of Form I-9 identity
and work eligibility documents (for example, training or technology
acquisition costs)?
5. What would be the direct and indirect burdens on small employers
for the items listed above? What are the unique challenges faced by
small employers with this process and these flexibilities? What kinds
of alternatives should be provided for small employers in adopting
these flexibilities?
6. If employers were allowed a permanent option for remote document
examination, what types of employers and/or employees do you anticipate
would be interested in participating or not interested in
participating?
7. How might participation requirements as a condition of these
flexibilities, such as required enrollment in E-Verify, document or
image quality or retention requirements, or required completion of
training offered by DHS, impact an employer's desire or ability to
utilize such a flexibility?
8. What would be the costs or benefits associated with making
enrollment in E-Verify a condition of flexibilities for you, as an
employer?
9. If DHS were to permanently allow an option for remote document
examination, what technical considerations would participating
employers have to consider?
10. What impact would a permanent option for remote document
examination have on employees and employers, if any? If these
flexibilities are adopted, are there requirements DHS should adopt to
ensure employee rights related to document examination are protected?
11. Are there solutions that would enable employers to verify that
documents that are examined remotely appear to be genuine and to relate
to the individual presenting them? What actions by DHS would encourage
the commercial development of such solutions?
12. Should DHS consider changes to the current lists of acceptable
documents on the Form I-9, in the context of remote document
examination? What would be the costs and benefits of such changes?
13. Are there any other factors DHS should consider related to
remote document examination?
IV. Review of Public Input
This notice is issued solely for information and program-planning
purposes. Public input provided in response to this notice does not
bind DHS to any further actions, to include publishing a formal
response or agreement to initiate a recommended change. DHS will
consider the feedback and make changes or process improvements at its
sole discretion. Commenting on this notice is not a substitute for
commenting on other ongoing DHS rulemaking efforts. To be considered as
part of a specific rulemaking effort, comments on DHS rules must be
received during the comment period identified in the relevant
rulemaking published in the Federal Register, and in the manner
specified therein.
Ur M. Jaddou,
Director, U.S. Citizenship and Immigration Services, Department of
Homeland Security.
[FR Doc. 2021-23260 Filed 10-25-21; 8:45 am]
BILLING CODE 9111-97-P
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