Rule2023-15532
Optional Alternatives to the Physical Document Examination Associated With Employment Eligibility Verification (Form I-9)
Primary source
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Published
July 25, 2023
Effective
August 1, 2023
Issuing agencies
Homeland Security Department
Abstract
The Department of Homeland Security (DHS) is amending its regulations to create a framework under which the Secretary of Homeland Security (the Secretary) may, as an optional alternative to the in- person physical document examination method that employers have followed as part of the Form I-9 process set forth in current regulations, authorize alternative document examination procedures. The Secretary may authorize such alternative procedures with respect to some or all employers as part of a pilot program, upon the Secretary's determination that such procedures offer an equivalent level of security, or as a temporary measure to address a public health emergency declared by the Secretary of Health and Human Services pursuant to section 319 of the Public Health Service Act, or a national emergency declared by the President pursuant to sections 201 and 301 of the National Emergencies Act. In addition, in a separate document published in this edition of the Federal Register, DHS is announcing the Secretary's authorization of an alternative document examination procedure and the conditions for participation.
Full Text
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<title>Federal Register, Volume 88 Issue 141 (Tuesday, July 25, 2023)</title>
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[Federal Register Volume 88, Number 141 (Tuesday, July 25, 2023)]
[Rules and Regulations]
[Pages 47990-48022]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-15532]
[[Page 47989]]
Vol. 88
Tuesday,
No. 141
July 25, 2023
Part III
Department of Homeland Security
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Occupational Safety and Health Administration
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8 CFR Part 274a
Optional Alternatives to the Physical Document Examination Associated
With Employment Eligibility Verification (Form I-9); Final Rule
Federal Register / Vol. 88 , No. 141 / Tuesday, July 25, 2023 / Rules
and Regulations
[[Page 47990]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 274a
[DHS Docket No. ICEB-2021-0010]
RIN 1653-AA86
Optional Alternatives to the Physical Document Examination
Associated With Employment Eligibility Verification (Form I-9)
AGENCY: U.S. Immigration and Customs Enforcement, Department of
Homeland Security.
ACTION: Final rule.
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SUMMARY: The Department of Homeland Security (DHS) is amending its
regulations to create a framework under which the Secretary of Homeland
Security (the Secretary) may, as an optional alternative to the in-
person physical document examination method that employers have
followed as part of the Form I-9 process set forth in current
regulations, authorize alternative document examination procedures. The
Secretary may authorize such alternative procedures with respect to
some or all employers as part of a pilot program, upon the Secretary's
determination that such procedures offer an equivalent level of
security, or as a temporary measure to address a public health
emergency declared by the Secretary of Health and Human Services
pursuant to section 319 of the Public Health Service Act, or a national
emergency declared by the President pursuant to sections 201 and 301 of
the National Emergencies Act. In addition, in a separate document
published in this edition of the Federal Register, DHS is announcing
the Secretary's authorization of an alternative document examination
procedure and the conditions for participation.
DATES: The effective date of this final rule is August 1, 2023.
FOR FURTHER INFORMATION CONTACT: 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 (this is not a toll-
free number).
SUPPLEMENTARY INFORMATION:
I. Background
A. Purpose of the Regulatory Action
This rule responds to lessons learned during the COVID-19 pandemic,
which demonstrated the substantial practical benefits of an optional
alternative to the physical documentation examination procedures
required by the employment eligibility verification regulations at 8
CFR 274a.2(b)(1)(ii)(A). The rule creates a framework under which DHS
may implement permanent flexibilities under certain conditions,
initiate pilot procedures with respect to the examination of documents,
or respond to emergencies similar to the COVID-19 pandemic.\1\ DHS is
also adding a box to the Form I-9; employers will use the box to
document the use of a DHS-authorized alternative procedure.
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\1\ See 87 FR at 50789.
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This action is also consistent with the goals of Executive Order
14058, Transforming Federal Customer Experience and Service Delivery to
Rebuild Trust in Government, which directs agencies to ``reduce
administrative hurdles and paperwork burdens to minimize `time taxes'
'' and ``redesign compliance-oriented processes to improve customer
experience and more directly meet the needs of the people of the United
States.'' \2\ The reduction of ``time taxes,'' consistent with law, is
a national priority; it has the potential to promote social welfare
generally and equity in particular. Many of the public comments are
consistent with this point. For example, many of the comments were from
employers and employees who have adopted permanent telework and remote
work arrangements that no longer require employees to physically report
to an employer worksite on a regular, consistent, or predictable basis.
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\2\ See 86 FR 71357 (published Dec. 16, 2021).
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Authorizing an alternative procedure offers potential benefits to
new and rehired employees because they no longer need to travel to a
worksite to present documentation for the Form I-9. DHS believes that
authorizing an alternative option can be done without compromising the
integrity of the employment eligibility verification process.
Therefore, this final rule amends 8 CFR 274a.2 to allow the Secretary
to authorize optional alternatives for examining the documentation
presented by individuals seeking to establish identity and employment
authorization for the purpose of completing the Form I-9. This final
rule also summarizes an optional alternative procedure for the
examination of the documentation presented by individuals seeking to
establish identity and employment authorization for the purpose of
completing the Form I-9, as announced by DHS in a document (Optional
Alternative 1 to the Physical Document Examination Associated with
Employment Eligibility Verification (Form I-9)) concurrently published
in this edition of the Federal Register. This final rule does not
change the standard employers must follow when examining documentation;
employers who examine documentation in person (physical examination) or
remotely through an alternative procedure authorized by the Secretary
are still required to accept documentation that ``reasonably appears to
be genuine and to relate to'' the employee presenting the
documentation.\3\
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\3\ 8 U.S.C. 1324a(b)(1)(A)(ii). As explained in the
accompanying Federal Register notice, employers must allow employees
who are unable or unwilling to submit documentation using the
optional alternative procedure the option to submit documentation in
person for physical examination.
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B. Legal Authority
In 1986, Congress reformed U.S. immigration laws by passing the
Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-
603,\4\ to amend the Immigration and Nationality Act (INA). Among other
reforms, the IRCA amendments made it unlawful for employers to
knowingly hire individuals who are unauthorized to work in the United
States and established a system for verifying the identity and U.S.
employment authorization of all employees hired after November 6,
1986.\5\ IRCA imposed employer sanctions, codified in section 274A of
the INA, 8 U.S.C. 1324a, including financial, criminal, and other
penalties for those who failed to verify the identity and the
employment authorization of all new employees, or those who knowingly
hired, recruited, or referred for a fee, or continued to employ
``unauthorized aliens'' after November 6, 1986.\6\ Among other goals,
IRCA sought to ensure that only authorized individuals were hired for
employment in the United States, and that employers did not
discriminate against any employee on the basis of national origin or
citizenship status.\7\ IRCA prompted the creation of the Form I-9 as
the designated means of documenting that the employer verified an
employee's identity and U.S. employment authorization. See 8 CFR
274a.2. Employers must complete the Form I-9 to document verification
of the identity and employment authorization of each employee (both
citizen and noncitizen) hired after November 6,
[[Page 47991]]
1986, to work in the United States.\8\ If an employee's temporary
employment authorization expires, the employer must reverify the
employee's employment authorization to ensure that the employee
continues to be authorized to work in the United States.\9\ If an
employee is rehired, the employer must also ensure that the employee is
still authorized to work in the United States at the time of
rehire.\10\ The employer must retain the Form I-9 in a paper,
electronic, or other format, or in an acceptable combination of such
formats, for as long as the individual works for the employer and for a
specified period after the individual's employment has ended.\11\
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\4\ Immigration Reform and Control Act, Public Law. 99-603 100
Stat. 3445.
\5\ Id.
\6\ Id.
\7\ See 8 U.S.C. 1324a and 8 U.S.C. 1324b.
\8\ In the Commonwealth of the Northern Mariana Islands,
employers complete the Form I-9 for each new employee (both citizen
and noncitizen) hired after November 27, 2011. Additional
information about completing the Form I-9 is available at <a href="https://www.uscis.gov/i-9">https://www.uscis.gov/i-9</a>-central (last visited May 24, 2023).
\9\ 8 CFR 274a.2(b)(1)(vii).
\10\ 8 CFR 274a.2(c).
\11\ Employers must retain and store Forms I-9 for three years
after the date of hire, or for one year after employment is
terminated, whichever is later. Additional information for employers
and employees about the Form I-9 is available at <a href="https://www.uscis.gov/i-9">https://www.uscis.gov/i-9</a> (last visited May 24, 2023).
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The authority of the Secretary to implement the regulatory
amendments in this rule can be found in the Homeland Security Act of
2002, Public Law 107-296, which transferred the responsibility for
overseeing the examination of documentation evidencing identity and
employment authorization from the former U.S. Immigration and
Naturalization Service, previously a component of the U.S. Department
of Justice, to DHS. See, e.g., 6 U.S.C. 111, 557; 8 U.S.C. 1103, 1324a,
1324b. Within DHS, U.S. Citizenship and Immigration Services (USCIS)
issues most employment authorization documentation to noncitizens and
administers an electronic employment eligibility confirmation program
called E-Verify,\12\ and U.S. Immigration and Customs Enforcement (ICE)
monitors and enforces compliance with the requirements of the Form I-9.
Within the U.S. Department of Justice, the Civil Rights Division's
Immigrant and Employee Rights Section enforces the INA's anti-
discrimination provision found at 8 U.S.C. 1324b. This law prohibits
certain types of employment discrimination based on citizenship,
immigration status, and national origin, including discrimination in
the Form I-9 and E-Verify processes.
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\12\ E-Verify is an internet-based system that compares
information entered by an employer from an employee's Form I-9,
Employment Eligibility Verification, to records available DHS and
the Social Security Administration to confirm the employee's
employment eligibility. More information is available at <a href="https://www.e-verify.gov/">https://www.e-verify.gov/</a> (last visited Mar. 14, 2022).
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C. COVID-19 Flexibilities
Due to the physical proximity precautions implemented by employers
related to combating the COVID-19 pandemic, on March 20, 2020, ICE
posted an announcement on its website that stated DHS would defer the
physical examination requirements associated with the Form I-9.\13\
Under that guidance, an employer, or an authorized representative
acting on the employer's behalf, could inspect Form I-9 documents
remotely (e.g., over video link, fax, or email) within three business
days of the employee's first day of employment. If inspecting Form I-9
documents remotely, the employer was required to obtain, inspect, and
retain copies of the documents within three business days. Such
employers were further directed to enter COVID-19 as the reason for the
physical examination delay in the Section 2 ``Additional Information''
field, of the Form I-9. Under the guidance, the employer would be
required, once normal operations resumed, to physically examine the
documents and enter the notation ``documents physically examined''
along with the date of inspection in the Section 2 ``Additional
Information'' field. DHS initially allowed these provisions to be in
place for a period of 60 days from the date of the notice (or within
three business days after the termination of the national emergency,
whichever came first).
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\13\ ICE, DHS announces flexibility in requirements related to
Form I-9 compliance (Effective Apr. 1, 2021), <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 May 20, 2023).
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This guidance applied only to employers and workplaces that were
operating remotely. Specifically, the guidance stated: ``[i]f there are
employees physically present at a work location, no exceptions are
being implemented at this time for in-person verification of identity
and employment eligibility documentation for Form I-9, Employment
Eligibility Verification. However, if newly hired employees or existing
employees are subject to COVID-19 quarantine or lockdown protocols, DHS
will evaluate this on a case-by-case basis.''
ICE periodically extended this announcement as the COVID-19
national emergency \14\ continued. On March 31, 2021, ICE updated the
announcement made on March 20, 2020, stating that, as of April 1, 2021,
only those employees who physically reported to work at a company
location on any regular, consistent, or predictable basis needed to
undergo an in-person examination of their Form I-9 identity and
employment eligibility documentation.\15\ Further, the announcement
indicated that employees who were hired on or after April 1, 2021, and
who worked exclusively in a remote setting due to COVID-19-related
precautions, were temporarily exempted from the physical examination of
their Form I-9 documents until they undertook non-remote employment on
a regular, consistent, or predictable basis, or the extension of the
flexibilities related to such requirements was terminated, whichever
occurred earlier.\16\ Subsequently, due to the continuation of the
COVID-19 pandemic, ICE extended these flexibilities several times.\17\
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\14\ See 85 FR 15337 (Mar. 18, 2020).
\15\ See ``ICE announces extension, new employee guidance to I-9
compliance flexibility,'' U.S. Immigration and Customs Enforcement
(Effective Apr. 1, 2021), available at <a href="https://www.ice.gov/news/releases/ice-announces-extension-new-employee-guidance-i-9-compliance-flexibility">https://www.ice.gov/news/releases/ice-announces-extension-new-employee-guidance-i-9-compliance-flexibility</a> (last visited May 20, 2023).
\16\ See USCIS, DHS Extends Form I-9 Flexibility (Effective Mar.
31, 2021), available at <a href="https://www.uscis.gov/i-9">https://www.uscis.gov/i-9</a>-central/covid-19-
form-i-9-related-news/dhs-extends-form-i-9-requirement-flexibility-
effective-mar-31-2021 (last visited May 20, 2023); ICE announces
extension, new employee guidance to I-9 compliance flexibility (Apr.
1, 2021), available at <a href="https://www.ice.gov/news/releases/ice-announces-extension-new-employee-guidance-i-9-compliance-flexibility">https://www.ice.gov/news/releases/ice-announces-extension-new-employee-guidance-i-9-compliance-flexibility</a>
(last visited May 20, 2023).
\17\ See, e.g., DHS Extends Form I-9 Requirement Flexibility
(Effective May 1, 2022), available at <a href="https://www.uscis.gov/i-9">https://www.uscis.gov/i-9</a>-
central/covid-19-form-i-9-related-news/dhs-extends-form-i-9-
requirement-flexibility-effective-may-1-2022 (last updated May 24,
2023); ICE announces extension to I-9 compliance flexibility,
available at <a href="https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-3">https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-3</a> (last updated May 24, 2023).
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On October 26, 2021, USCIS published a notice in the Federal
Register seeking input from the public regarding document examination
practices associated with the Form I-9.\18\ Of the 315 public comments
received, the vast majority supported a remote document examination
option, stating that such an option reduces burdens on employers and
employees. Some commenters raised concerns about document fraud, while
others recommended measures to mitigate such risk.
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\18\ 86 FR 59183.
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On October 11, 2022, ICE announced that the COVID-19 flexibilities
would be extended until July 31, 2023.\19\ On
[[Page 47992]]
May 4, 2023, ICE announced that, instead of the previously announced
three-day period for physically examining the documents of employees
hired under the COVID-19 flexibilities, employers would have 30 days to
comply with the Form I-9 document examination requirements after the
COVID-19 flexibilities sunset on July 31, 2023.\20\
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\19\ ICE, ICE Announces Extension to I-9 Compliance Flexibility,
available at <a href="https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-3">https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-3</a> (last visited May 20, 2023).
\20\ ICE, ICE Updates Form I-9 Requirement Flexibility to Grant
Employers More Time to Comply with Requirements (May 5, 2023),
available at <a href="https://www.ice.gov/news/releases/ice-updates-form-i-9-requirement-flexibility-grant-employers-more-time-comply">https://www.ice.gov/news/releases/ice-updates-form-i-9-requirement-flexibility-grant-employers-more-time-comply</a> (last
visited May 20, 2023).
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D. Notice of Proposed Rulemaking
On August 18, 2022, DHS published a notice of proposed rulemaking
(NPRM), Optional Alternatives to the Physical Document Examination
Associated with Employment Eligibility Verification (Form I-9).\21\ DHS
received 512 public comments before the close of the comment period.
The vast majority of comments expressed support for the proposed rule.
These comments generally supported the availability of an alternative
procedure similar to the temporary flexibilities DHS initially
announced on March 20, 2020 to address the physical proximity
precautions implemented by employers to combat the COVID-19 pandemic.
Many commenters said the ability to apply a remote inspection procedure
reduced burdens on employers, expanded employers' access to eligible
employees, and aligned with the shift to new workplace realities. A
minority of the commenters expressed opposition to the proposed rule.
Some commenters opposed to remote inspection expressed concerns about
the reliability of inspecting a document remotely. Some supported
remote inspection but questioned the need for more training and
recordkeeping requirements. DHS considered all public comments before
issuing this final rule. A discussion of the public comments and
responses follows later in this preamble.
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\21\ See Optional Alternatives to the Physical Document
Examination Associated With Employment Eligibility Verification
(Form I-9), 87 FR 50786 (Aug. 18, 2022).
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E. Changes From Proposed Rule to Final Rule
As discussed in the comment and response sections below in this
final rule, DHS has considered the input provided by commenters in
response to the NPRM, the vast majority of which supported the proposed
changes, and is adopting the changes proposed in the NPRM, with certain
modifications. This final rule amends 8 CFR 274a.2 to allow the
Secretary to authorize optional alternatives to the in-person physical
document examination method employers have followed as part of the Form
I-9 process set forth in current regulations. Under this rule, the
Secretary may authorize alternative documentation examination
procedures with respect to some or all employers, and such procedures
may be adopted as part of a pilot program, or upon a determination that
such procedures offer an equivalent level of security, or as a
temporary measure to address a public health emergency declared by the
Secretary of Health and Human Services (pursuant to Section 319 of the
Public Health Service Act) or a national emergency declared by the
President (pursuant to Sections 201 and 301 of the National Emergencies
Act).
On the basis of a review of public comments, the final rule makes
two changes as compared to the proposed regulatory text. First, the
proposed rule stated that the Secretary may authorize alternative
documentation examination procedures with respect to some or all
employers. See 87 FR at 50794. DHS has revised this text to make clear
that any such procedures must be consistent with applicable law and
authorized via a notice published in the Federal Register. See 8 CFR
274a.2(b)(1)(ix). Second, the proposed rule conditioned the issuance of
permanent alternative procedures upon the Secretary's determination
that such procedures offer an equivalent level of security. See 87 FR
at 50794. DHS has revised this text to clarify that the level of
security must be equivalent to that of physical examination as
indicated by, for instance, observed measures of system integrity (such
as error or fraud rates) or the procedure's capacity for confirming
certain documents or information. See 8 CFR 274a.2(b)(1)(ix)(B). DHS
notes that it would also consider other relevant factors, such as
potential discrimination based on a protected characteristic in the
administration of an alternative procedure.
F. Optional Alternative Procedure for Document Examination
Concurrent with the issuance of this rule, and following
consideration of the comments received on the NPRM and the calls for
comments contained therein, DHS is proceeding with an optional
alternative procedure that includes various requirements to ensure an
equivalent level of security. In the accompanying document, Optional
Alternative 1 to the Physical Document Examination Associated with
Employment Eligibility Verification (Form I-9), DHS describes an
optional alternative to the in-person physical document examination
(physical examination) method employers have followed as part of the
Form I-9 process set forth in current regulations. As detailed in the
notice, to ensure an equivalent level of security, the alternative
procedure currently includes certain requirements, such as conditions
for participation and parameters that employers who choose to use the
alternative procedure must adhere to.
At this time, the alternative procedure is available only to
qualified employers, meaning those employers who are enrolled, and
participate in good standing, in E-Verify. A qualified employer does
not need to use the alternative procedure, but if a qualified employer
chooses to offer the alternative procedure to new employees at an E-
Verify hiring site, that employer must do so consistently for all
employees at that site, without discrimination. However, a qualified
employer may choose to offer the alternative procedure for remote hires
only but continue to apply physical examination procedures to all
employees who work onsite or in a hybrid capacity, so long as the
employer does not adopt such a practice for a discriminatory purpose or
treat employees differently based on a protected characteristic, i.e.,
their citizenship, immigration status, or national origin.\22\ Under no
circumstances can employers unlawfully discriminate, such as by
deciding who is eligible for the alternative procedure based on a
protected characteristic.
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\22\ See 8 U.S.C. 1324b(a)(1).
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Qualified employers must retain clear and legible copies of all
documents presented by the employee seeking to establish identity and
employment eligibility for the Form I-9 through the alternate
procedures.\23\ New E-Verify employers and any users who manage and
create E-Verify cases must complete an E-Verify tutorial that includes
fraud awareness and anti-discrimination training. The tutorial is free
and accessible as part of the E-Verify enrollment process to any users
who manage and create E-Verify cases.
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\23\ E-Verify employers who do not apply the alternative
procedure are only required to retain a photocopy of the following
documents with an employee's Form I-9: U.S. passport, U.S. passport
card. Form I-551, Permanent Resident Card, Form I-766, Employment
Authorization Document, available at <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> (last visited
May 25, 2023).
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Within three business days of an employee's first day of
employment, a qualified employer (or an authorized representative
acting on the employer's behalf, such as a third-party vendor)
[[Page 47993]]
who chooses to use the alternative procedure must:
1. Examine copies (front and back, if the document is two-sided) of
Form I-9 documents \24\ or an acceptable receipt \25\ to ensure that
the documentation presented reasonably appears to be genuine;
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\24\ The Lists of Acceptable Documents are included with the
Form I-9.
\25\ Occasionally, employees may present a ``receipt'' in place
of a List A, B, or C document. An acceptable receipt is valid for a
specified period of time so an employer can complete Form I-9,
Employment Eligibility Verification. Employers cannot accept
receipts if employment will last less than three days. An acceptable
receipt may be a receipt for the application to replace a List A, B,
or C document that was lost, stolen, or damaged; the arrival portion
of Form I-94 (Arrival/Departure Record) with a temporary Form I-551
stamp and a photograph of the individual; the departure portion of
Form I-94 (Arrival/Departure Record) with an unexpired refugee
admission stamp; or an admission code of ``RE.'' See 8 CFR
274a.2(b)((1)(vi) and USCIS, Handbook for Employers, M-274,
available at <a href="https://www.uscis.gov/i-9">https://www.uscis.gov/i-9</a>-central/form-i-9-resources/
handbook-for-employers-m-274/40-completing-section-2-of-form-i-9/43-
acceptable-receipts (last visited May 24, 2023).
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2. Conduct a live video interaction with the individual presenting
the document(s) to ensure that the documentation reasonably appears to
be genuine and related to the individual. The employee must first
transmit a copy of the document(s) to the employer (per Step 1 above)
and then present the same document(s) during the live video
interaction;
3. Indicate on the Form I-9, by completing the corresponding box,
that an alternative procedure was used to examine documentation to
complete Section 2 or for reverification, as applicable; \26\
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\26\ The new edition of the Form I-9 is effective on August 1,
2023. Employers may continue to use the 10/21/2019 edition of the
Form I-9 from August 1, 2023 until the end of October 31, 2023. As
described elsewhere in this rule and accompanying notice, if during
this grace period an employer uses the 10/21/2019 edition of the
Form I-9 for the alternative procedure, the employer must indicate
its use of the alternative procedure by writing ``alternative
procedure'' in the Additional Information field in Section 2. No
later than November 1, 2023, employers must begin using the August
1, 2023, edition of the Form I-9. When using the August 1, 2023,
edition of the Form I-9, an employer must indicate their use of the
alternative procedure by completing the corresponding box in Section
2 or in the section corresponding to reverification (which is
Supplement B in the August 1, 2023 edition of Form I-9), as
appropriate.
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4. Retain, consistent with applicable regulations,\27\ a clear and
legible copy of the documentation (front and back, if the documentation
is two-sided); \28\ and
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\27\ See 8 CFR 274a.2(b)(3), (e), (f), (g).
\28\ Employers must retain and store the Form I-9 for three
years after the date of hire, or for one year after employment ends,
whichever is later. See 8 U.S.C. 1324a(b)(3); 8 CFR 274a.2(b)(2).
Additional information for employers and employees about the Form I-
9 is available at <a href="https://www.uscis.gov/i-9">https://www.uscis.gov/i-9</a> (last visited June 8,
2023).
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5. In the event of a Form I-9 audit or investigation by a relevant
federal government official, make available the clear and legible
copies of the identity and employment authorization documentation
presented by the employee for document examination in connection with
the employment eligibility verification process.\29\
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\29\ See 8 U.S.C. 1324a, 1324b; 8 CFR part 274a; 28 CFR part 44.
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DHS will monitor and evaluate data and other information from its
own Form I-9 audits to assess any measurable impacts on system
integrity (such as error or fraud rates).
G. Pilot
Additionally, this rule allows the Secretary to conduct a pilot
program to acquire and assess more data. Based on this data and
information, the Secretary may announce new procedures or changes to
the alternative procedure.
II. Discussion of Public Comments on the Proposed Rule
A. Summary of Public Comments
DHS received 512 public comments from a variety of persons and
entities, including businesses, nonprofits, advocacy organizations,
human resource professionals, and individual members of the public. DHS
reviewed all the public comments received in response to the NPRM and
addresses those comments in this final rule. As noted, most commenters
expressed support for the proposed rule, stating that remote
examination is comparable to physical examination, reduces unnecessary
burdens on employees and employers, expands employers' access to
eligible employees, better accommodates new workplace realities, and
provides other environmental, public health, and safety benefits.
A minority of the commenters expressed concern about inspecting
documents remotely, including the risk of fraud. Some commenters voiced
support for remote inspection but expressed concern about additional
burdens related to implementation and recordkeeping. Some commenters
requested additional training and guidance.
B. Comments Expressing General Support
1. Reduction in Burden and Errors
Comment: Some commenters stated that the rule would reduce burdens
for employees and employers. Many cited the benefits of establishing a
permanent optional alternative procedure, such as that it would
increase the likelihood that document inspection would be completed
quickly and correctly by an employer rather than by an authorized
representative, would reduce costs (such as those associated with using
an authorized representative) and would eliminate unnecessary travel or
maintenance of on-site human resources (HR) staff.
Many commenters described challenges associated with authorized
representatives. Commenters stated that it is time-consuming to train
and manage authorized representatives and that it is difficult to avoid
errors made during the Form I-9 process even when using an authorized
representative. A commenter remarked that many businesses no longer
have brick and mortar offices so staffing firms are increasingly forced
to rely on authorized representatives to complete physical inspections
of identity and work authorization documentation for the Form I-9.
Commenters explained that it is better to have someone familiar with
how to properly complete the Form I-9 do so remotely, rather than to
have this done by someone who is simply able to be physically present
to complete the form, which often results in mistakes and delays.
One commenter stated that, typically, authorized representatives
are not professionals familiar with the Form I-9 process. The commenter
stated that they conduct a timely second tier review of forms completed
by authorized representatives and, in most situations, have to send the
Form I-9 back for corrections. The commenter stated that they also have
to completely trust the authorized representative to understand the
gravity of their document review and attestation on the form. Another
commenter listed a variety of errors made by authorized
representatives, and estimated that for hires since May 1, 2022, 54
percent of authorized representatives engaged by the commenter had
filled out Section 2 of the Form I-9 incorrectly.
Some commenters noted that errors by authorized representatives can
delay the employment start date for an employee. Commenters stated that
it is burdensome to repeatedly engage new authorized representatives
and provide guidance and training materials to such persons. A
commenter stated that employees are sometimes hesitant to use an
authorized representative due to privacy concerns. Commenters stated
that compliance is easier with remote verification and employees prefer
that a person who works directly for the company view their personal
information. A few commenters provided the estimated costs that
[[Page 47994]]
employers incur to use an authorized representative, which ICE has
incorporated into the regulatory analysis later in this preamble.
Commenters provided examples of how employers comply with document
examination requirements in the absence of this rule, such as by (1)
flying in new employees to the nearest office in order for a member of
their HR team to advise the employee on how to complete Section 1 of
the Form I-9, followed by HR staff completing Section 2 and examining
the documentation on-site; (2) directing HR staff to travel long
distances to multiple worksites to assist with the I-9 process; and (3)
paying a third-party vendor to complete Section 2 and inspect
documentation on the company's behalf at a local facility nearest to
the employee. Commenters stated that these options are costly and
difficult to coordinate.
Commenters stated that allowing an alternative procedure for the
inspection of Form I-9 documentation would create a uniform,
streamlined, and less burdensome process which would enable companies
to accommodate employees with remote work arrangements as well as those
employees who physically report to an employer worksite. Furthermore,
commenters stated that remote verification of Form I-9 documents would
lower costs by streamlining HR operations and allowing companies to
centralize onboarding functions and the storage of records. Commenters
stated that providing basic Form I-9 and E-Verify training at each
individual worksite is onerous and leaves businesses open to
inadvertent non-compliance. One commenter suggested that DHS should
allow employers to centralize Form I-9 processing at a single company
site to ensure that the personnel conducting document examination are
fully trained in the process. Additionally, commenters stated that this
rule would result in increased compliance and fewer errors because it
allows the employer to keep the verification within their control,
rather than depending on an authorized representative for new employees
with remote work arrangements. Some commenters stated that digital
document retention is already embedded in company practices and
guidance--particularly among E-Verify users--and that, therefore, a new
requirement to retain all documentation would not pose a significant
burden.
Some commenters stated that although any increased investments in
new technology to facilitate remote document examination may impose
additional costs, an alternative procedure would still be a more
affordable option compared to physical examination. Commenters stated
that the implementation of a new system would, over time, be offset by
the cost savings associated with not engaging in physical examination
of documents.
Other commenters stated that it is within DHS's authority to align
the Form I-9 process with the evolving realities of U.S. workplaces.
Commenters also stated that the meaning of ``physical examination''
should evolve to include virtual methods. Some commenters said that DHS
should update the Form I-9 verification process to align with new
workplace situations, like telework.
Some commenters suggested that DHS remove all references to the
word physical in governing regulations or define ``physical
examination'' or ``physically examine'' in a way that allows employers
(or their agents) to use video conferencing to examine documents.
Commenters stated it is more important to have someone who is more
familiar with the Form I-9 process complete the form rather than
someone who is simply physically present to complete the Form I-9 for
the employer but less familiar with how to properly do so. They stated
that DHS should act on the meaningful opportunity to help U.S.
businesses compete in the global labor market and adapt laws and
regulations to align with the evolving nature of work. They asserted
that an alternative procedure would result in significant time and cost
savings for employers.
Commenters urged DHS to authorize an alternative procedure and to
pursue other Form I-9 modernization programs to meet evolving workforce
needs like remote onboarding. They stated that other methods for the
examination of identity and work authorization documents would help
modernize the Form I-9 process, which is long overdue, and that the
current in-person procedures are a roadblock to employment for many
individuals.
Response: DHS appreciates these comments and acknowledges that many
commenters support the authorization of an alternative procedure for
Form I-9 document examination. DHS acknowledges that the use of an
alternative procedure by qualified employers and their employees may
alleviate some of the challenges associated with the current process,
such as finding authorized representatives and requiring new employees
to travel long distances to submit their Form I-9 documentation.
Although some of the commenters shared suggestions that are beyond the
scope of this rule, such as removing the term ``physical'' in the
regulation, DHS believes that establishing an optional alternative
procedure aligns with many of the sentiments expressed.
2. Accessibility
Comment: Commenters indicated that remote inspection would remove
barriers for eligible employees who are disabled and for whom it is
difficult or impossible to travel to an office. A few commenters stated
that an alternative procedure is needed for physically disabled
employees and others so that they are no longer burdened by having to
travel to complete the Form I-9 process in-person.
Commenters also stated that the proposed rule would create a more
inclusive environment for those who are financially disadvantaged or
otherwise unable to travel by allowing them to complete the Form I-9
process online. Commenters stated that an alternative procedure would
align with the benefits of remote work for individuals who live in
rural areas or have a job that does not require them to report
regularly to a single location, such as a construction worker or a home
health aide.
Response: DHS acknowledges that there could be several benefits for
employees who experience difficulties with the current Form I-9 process
and agrees with the sentiments expressed by these commenters. DHS
acknowledges, in particular, the value of producing an inclusive
environment, including for physically disabled employees, to the extent
consistent with law. DHS appreciates and acknowledges that many
commenters support the authorization of an alternative procedure for
Form I-9 physical examination because travel may be difficult or
impossible for some employees.
C. Comments Expressing General Opposition
1. Need for the Rule
Comment: Some commenters stated that, because there is no longer a
public health emergency, there is no need for the change. Another
commenter stated that an emergency should not change the requirements
for Form I-9 processing. A commenter stated that DHS overstated the
burden of completing the Form I-9, because employees who telework on a
normal basis can nonetheless visit the employer's place of business in
person once to have their documents examined.
Response: DHS acknowledges the commenters' concerns. As stated in
the
[[Page 47995]]
NPRM, this final rule, and the accompanying Federal Register notice,
DHS believes that an optional alternative method for examining the
documentation presented by individuals seeking to establish identity
and employment authorization can offer an equivalent level of security
and that its use may alleviate some of the challenges associated with
the current process, such as finding authorized representatives or
requiring employees to travel long distances to submit their Form I-9
documentation.
The rule also codifies a mechanism under which DHS can be more
responsive and nimble when addressing public health or national
emergencies.\30\ DHS believes this rule aligns with new workplace
realities. With respect to the concurrently published alternative
procedure, DHS believes the combination of requiring E-Verify
participation, fraud awareness training, expanded document retention
(to include clear and legible copies of the identity and employment
authorization documents presented by employees to complete the Form I-
9), and live video interaction like remote videoconferencing for real-
time verification, offers an equivalent level of security to physical
examination. DHS agrees that for some employers and employees, the
burden of traveling to a physical office to present documents can be
low. DHS understands that some employees are fully remote and live long
distances from their home office, some employers do not have a physical
workspace at all, and some employers use contracted firms to perform
human resource functions that are not located in the same geographic
vicinity. DHS also understands that for some employers, there are
significant efficiencies to be gained by using the alternative
procedure.
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\30\ Either as a temporary measure to address a public health
emergency declared by the Secretary of Health and Human Services
(pursuant to Section 319 of the Public Health Service Act), or a
national emergency declared by the President (pursuant to Sections
201 and 301 of the National Emergencies Act).
---------------------------------------------------------------------------
2. Fraud
Comment: Some commenters who expressed opposition stated that,
without a physical examination of Form I-9 documents, the occurrence of
fraud associated with unreliable documents would increase. For
instance, commenters said that counterfeit documents could pass with
ease through electronic inspection procedures, leaving U.S. workers'
jobs unprotected. One commenter stated that remote document examination
increases the likelihood that an employee will present fraudulent
documents to support their claim of work authorization and give corrupt
employers additional cover to knowingly hire unauthorized workers in
violation of statute. Some commenters suggested DHS instead expand
worksite enforcement efforts or rescind other policies. Another
commenter stated that DHS should explore the potential negative impacts
of a change before moving forward. The commenter cited the
``unprecedented numbers of illegal alien apprehensions and encounters
along the southern border and the ever-growing crisis that we are
presently witnessing.'' This commenter stated that any procedure that
diminishes the current Form I-9 verification process will be exploited
by smugglers, traffickers, and unscrupulous employers and will erode
the intent of the underlying statute that aims to ensure that only
authorized individuals can work in the United States.
Response: DHS shares commenters' concern for the integrity of the
employment verification system. As stated in the NPRM, in this final
rule, and in the concurrently published Federal Register notice
describing the alternative procedure, DHS is authorizing an optional
alternative method for examining the documentation presented by
individuals seeking to establish identity and employment authorization
that ensures at least an equivalent level of security. The intent of
this final rule and the accompanying alternative procedure is not to
weaken employment verification requirements or negatively impact U.S.
workers; it is to acknowledge new workplace realities and create a more
regular mechanism for making compliance easier. This rule does not
change the employer's responsibility to ensure that documents appear to
be genuine and relate to the individual presenting them. DHS recognizes
that physically examining identity and employment authorization
documents offers important security benefits to help evaluate whether
the document reasonably appears to be valid and to relate to the person
who presents it. Employers who physically examine identity and
employment authorization documents can touch and more clearly see
identification security features like holograms and microprinting, as
well as the card stock on which certain documents are printed. Remote
document examination, by itself does not provide this level of detailed
inspection. However, DHS believes the combination of limiting
participation to E-Verify participants in good standing, fraud
awareness training, expanded document retention requirements (to
include clear and legible copies of all the identity and employment
authorization documents presented by employees to complete the Form I-
9), and live video interaction after the employee transmits a copy of
the document(s) to the employer to verify that the document relates to
the person presenting it, offers important benefits that are absent in
the standard physical examination process, providing at least an
equivalent level of security to physical examination.
As it relates to E-Verify specifically, E-Verify electronically
compares information entered by an employer from an employee's Form I-
9, Employment Eligibility Verification, to records available to DHS and
the Social Security Administration (SSA) to confirm the validity of
identity and employment authorization documents. E-Verify confirms List
A documents that evidence identity and employment authorization, such
as U.S. passports, Permanent Resident Cards, and Employment
Authorization Documents (EADs), and electronically sends the photograph
from the official record to the employer to compare with the photo on
the document provided by the employee. E-Verify requires all cases to
include the employee's Social Security number (SSN), and E-Verify
electronically compares employer-entered data with SSA records. E-
Verify requires that all List B identity documents presented by
employees contain a photo and uses data sources available to DHS to
electronically verify the identity information provided on most state-
issued identification cards and driver's licenses. E-Verify proactively
prevents processing of SSNs that are known to have been used
fraudulently.
Further, the E-Verify tutorial, which is required of all E-Verify
users, ensures that E-Verify users are informed about fraudulent
documents, anti-discrimination, and other Form I-9 employer
responsibilities, compared to employers who just use the Form I-9 and
do not receive such training.
Retention of all documents, which is not required for Form I-9
alone, ensures that ICE can review all documents for fraud in case of
an ICE Form I-9 audit.
Finally, the requirement for a live video interaction after the
employee transmits a copy of the document(s) to the employer provides a
further measure of assurance that the document(s) presented by the
employee relates to the employee.
[[Page 47996]]
The measures required by the alternative procedure mitigate risk of
increased fraud associated with remote examination of documents under
the alternative procedure, including the possible use of counterfeit
documents.
DHS has no reason to believe that the alternative procedure
described in this rule would result in an increased use of fraudulent
documents as compared to a circumstance under which employers or their
authorized representatives physically examine documents without
confirming such documents or related information, receiving any
training, or retaining copies of documents. Given the intangible
benefits of physical inspection and DHS's lack of data to assess the
impact of the Form I-9 flexibilities, DHS is proceeding with an
alternative procedure that includes additional requirements that offers
at least an equivalent level of security. Additionally, the final rule
authorizes the Secretary to conduct a pilot program to acquire and
assess more data. DHS will evaluate all data and information collected
through ICE Form I-9 audits and pilot programs to ensure the security
of alternative procedures.
DHS will also monitor and evaluate data and information from ICE's
Form I-9 audits conducted after the implementation of this alternative
procedure to assess any measurable impacts to system integrity between
the alternative procedure and the physical examination of Form I-9
documents. DHS remains vigilant in monitoring and enforcing compliance
with the requirements of the Form I-9 so unauthorized workers and
unscrupulous employers do not exploit the Form I-9 process. Given the
current lack of data, DHS believes these requirements appropriately
address concerns about the potential for increased fraud in the Form I-
9 process while allowing some employers to have access to this
alternative procedure.
Comment: A commenter asserted that an alternative procedure would
not comply with best practices and standards as set by the National
Institute of Standards and Technology (NIST) Special Publication 800-
63A, Digital Identity Guidelines: Enrollment and Identity Proofing
Requirements, section 5.3.3.2 (Requirements for Supervised Remote In-
person Proofing). The commenter asked whether the government is
required to follow NIST standards when having individuals interact with
its systems, such as E-Verify.
Response: Consistent with the Federal Information Security
Management Act of 2002, as amended,\31\ and applicable OMB
memoranda,\32\ DHS is required to ensure that identity proofing for
Federal digital services provided to public consumers complies with
NIST guidance and Government-wide identity, credential, and access
management requirements.\33\ Current NIST guidance is contained in
Special Publication 800-63-3, Digital Identity Guidelines.\34\ DHS is
working towards compliance with these and future standards.
---------------------------------------------------------------------------
\31\ See Public Law 107-347 (codified as amended at 44 U.S.C.
3551 et seq.).
\32\ See OMB Memorandum for Heads of Executive Departments and
Agencies, Enabling Mission Delivery through Improved Identity,
Credential, and Access Management (M-19-17). See also OMB Memorandum
for the Heads of Executive Departments and Agencies, Modernizing
Access to and Consent for Disclosure of Records Subject to the
Privacy Act (M-21-04).
\33\ See id. at 9.
\34\ The NIST Special Publication 800-63-3 is a suite of
documents that cover enrollment (NIST 800-63-3--Digital Identity
Guidelines, NIST 800-63A--Enrollment and Identity Proofing, NIST
800-63B--Authentication and Lifecycle Management, and (NIST 800-
63C--Federation and Assertions), available at <a href="https://www.nist.gov/identity-access-management/nist-special-publication-800-63-digital-identity-guidelines">https://www.nist.gov/identity-access-management/nist-special-publication-800-63-digital-identity-guidelines</a> (last visited May 24, 2023).
---------------------------------------------------------------------------
The NIST standards provide minimum requirements for remote identity
verification prior to access to federal agency systems, but the NIST
standards do not govern the current employment verification process or
the alternative procedure discussed in this rule and accompanying
Federal Register notice. The applicable statutory and regulatory
requirements for employment authorization require the employer or their
authorized representative to examine the documents presented by the
employee. See 8 U.S.C. 1324a(b)(1); 8 CFR 274a.2(b)(1). There is no
requirement for the employee to access a federal agency system in order
to either interact with the employer or present their relevant identity
documents during a live session as part of the alternative procedure.
As such, the NIST standards for remote identity proofing do not apply
to the I-9 document examination process itself. Applicable regulations
at 8 CFR part 274a only require physical examination of the documents
presented by the employee to the employer to comply with the I-9
requirements.
D. Legal Authority
1. Immigration and Nationality Act (INA)
Comment: Some commenters expressed concern that the rule would
undermine statutory assurances that only authorized individuals can
work in the United States. A commenter stated that the law states that
employers must physically examine workers' documents to establish the
workers' identity and work authorization status. This commenter
suggested that the requirement to physically examine documents and
determine their authenticity precludes employers from reviewing
documents solely through electronic means. Commenters stated that the
proposed rule was vague and the provision on ``an equivalent level of
security,'' as determined by the Secretary, did not offer employers an
understanding of the procedure.
Response: The relevant statutory provision refers to the employer's
duty to ``examin[e]'' or undertake an ``examination'' of documents
without qualification as to the manner in which such examination must
be performed. See 8 U.S.C. 1324a(b)(1). Specifically, the statute
requires that any employer who hires, recruits, or refers an individual
for employment in the United States make certain attestations about the
employee's employment eligibility status ``. . .after [the] examination
of documentation'' that would establish the individual's identity and
employment authorization (8 U.S.C. 1324a(b)(1)). It is the implementing
regulations found at 8 CFR 274a.2(b)(1)(ii)(A) that require an employer
or an authorized representative acting on the employer's behalf to
``[p]hysically examine'' the documentation offered by the employee to
establish identity and employment authorization. DHS is using its
regulatory authority through this rulemaking to authorize an optional
alternative to the in-person physical document examination method
employers have followed as part of the Form I-9 process set forth in
current regulations.
With respect to the commenters' opinion that the rule is unduly
vague, DHS maintains that the NPRM stated a goal and standard. The NPRM
stated that DHS was proposing to create a framework under which the
Secretary could authorize alternative options for Form I-9 document
examination procedures with respect to some or all employers. DHS
requested and welcomed comments on the effects of the changes with
respect to employers, employees, and on the associated burdens or
benefits, such as reducing risks to the integrity of the alternative
procedure(s), avoiding discrimination in the process, and protecting
privacy interests. See, e.g., 87 FR at 50790. After careful
consideration of the comments received, DHS describes, in this final
rule and in an accompanying Federal
[[Page 47997]]
Register notice, the framework for an alternative procedure that
incorporates suggestions from commenters. DHS has implemented various
requirements in the alternative procedure to offer an equivalent level
of security.
In addition, consistent with the NPRM and the alternative procedure
contained in accompanying Federal Register notice, DHS has expanded
upon the equivalence concept in regulatory text of this final rule.
Whereas the proposed rule conditioned the issuance of permanent
alternative procedures upon the Secretary's determination that such
procedures offer an equivalent level of security, see 87 FR at 50794,
DHS has, following review of the above comments, clarified that the
level of security must be equivalent to that of physical examination as
indicated by, for instance, observed measures of system integrity (such
as error or fraud rates) or the procedure's capacity for confirming
certain documents or information. See 8 CFR 274a.2(b)(1)(ix)(B). The
alternative procedure contained in the accompanying Federal Register
notice is consistent with the latter example.
DHS will evaluate data and information from ICE's Form I-9 audits
to assess any measurable impacts to system integrity (such as error or
fraud rates) in connection with the accompanying alternative procedure
or a future such procedure. DHS remains vigilant in monitoring and
enforcing compliance with the requirements of the Form I-9 regardless
of the permissible procedure an employer uses to examine employees'
identity and employment authorization documentation. Additionally, the
final rule authorizes the Secretary to conduct a pilot program to
acquire and assess more data. DHS will evaluate all data and
information collected through ICE audits and pilot programs with a
continued goal of expanding the availability of an alternative
procedure to the widest group of employers while balancing the security
of any alternative procedures implemented under the rule. The Secretary
will announce any such pilot programs, new procedures, or changes to
this alternative procedure in the future.
Comment: A commenter objected to the suggestion that only an
alternative procedure must offer an equivalent level of security,
whereas pilot procedures and procedures to respond to a public health
emergency or national emergency would not. The commenter stated that
under 8 U.S.C. 1324a(d)(2), any changes to the employment verification
system (including, for instance, temporary measures to address a public
health emergency under proposed 8 CFR 274a.2(b)(1)(iv)(C)) must meet
certain requirements, as set forth in 8 U.S.C. 1324a(d)(2)(A)-(G). The
commenter stated that the Public Health Service Act and the National
Emergencies Act provides no basis to avoid these requirements.
Response: The requirements of Sec. 1324a(d)(2)(A)-(G) do not apply
to this rulemaking, because this rulemaking is not issued under Sec.
1324a(d)(1). Under Sec. 1324a(d)(1), the President or the President's
designee may implement such changes in (including additions to) the
requirements of Sec. 1324a(b) as may be necessary to establish a
secure system to determine employment eligibility in the United States.
See 8 U.S.C. 1324a(d)(1)(B). But as explained earlier in this section
of the preamble, this rule and the accompanying Federal Register notice
do not make any changes to the requirements of Sec. 1324a(b), and
therefore need not invoke the authority at Sec. 1324a(d)(1). This rule
relates solely to the physical examination of documents, which is a
regulatory requirement, and is not a requirement of Sec. 1324a(b).
See, e.g., 8 U.S.C. 1324a(b)(1)(A) (referencing examination but not
physical examination). This rule exercises the Secretary's authorities
under 8 U.S.C. 1103(a)(3), 1324a(b)(1)(A).
DHS is nonetheless cognizant of the considerations listed in Sec.
1324a(d)(2)(A)-(G) and has authorized an alternative procedure that
offers an equivalent level of security without undermining privacy and
other considerations, consistent with the congressional purpose
underlying those and other provisions. DHS has no immediate plans to
authorize an additional procedure to address a public health emergency
or national emergency, as was necessary during the COVID-19 pandemic,
but if DHS does so, DHS will act with similar considerations in mind.
2. Administrative Procedure Act (APA)
Comment: Commenters stated that the NPRM did not allow the public
to assess the efficacy of, or provide meaningful input on, the
alternative procedure. A commenter inquired whether DHS had already
developed the alternative verification option it alluded to in the NPRM
and stated that, if such an approach had been created, DHS should
provide information to the public as part of this rule. Commenters
stated that failing to provide the public an opportunity to comment on
the alternative procedure is inconsistent with DHS's duty to give
interested persons an opportunity to participate in rulemaking through
submission of written data, views, or arguments.
Response: This rulemaking fully complies with the APA. As noted
above, on August 18, 2022, DHS published an NPRM, Optional Alternatives
to the Physical Document Examination Associated with Employment
Eligibility Verification (Form I-9), 87 FR 50786, and provided the
public 60 days to comment on the proposed changes. The NPRM clearly
stated a ``reference to the legal authority under which the rule is
proposed,'' see 5 U.S.C. 553(b)(2), and ``the terms and substance of
the proposed rule or a description of the subjects and issues
involved,'' see 5 U.S.C. 553(b)(2). Specifically, DHS described--
<bullet> the legal authority for the Form I-9 and the employment
authorization verification system, see 87 FR at 50786-50787, 50794;
<bullet> the requirements of existing regulations and the
flexibilities announced following the onset of the COVID-19 pandemic,
see 87 FR at 50787-50789;
<bullet> the clear need for a framework under which to authorize
optional alternative procedures that could make permanent some of the
COVID-19 pandemic-related flexibilities, see 87 FR at 50789-50790;
<bullet> Specific potential conditions for such alternative
procedures, including integrity measures such as document retention
requirements, training, and E-Verify participation, see 87 FR at 50790;
and
<bullet> Examples of potential effects of an alternative procedure,
see 87 FR at 50791.
Consistent with the above explanation, DHS proposed to revise the
language in 8 CFR 274a.2 to allow the Secretary to authorize an
optional alternative to the in-person physical document examination
method that employers have followed as part of the Form I-9 process set
forth in current regulations, and that such procedures may be adopted
as part of a pilot program, or upon the Secretary's determination that
such procedures offer an equivalent level of security, or as a
temporary measure to address a public health emergency declared by the
Secretary of Health and Human Services or a national emergency declared
by the President. See 87 FR at 50794. DHS also proposed changes to the
Form I-9 and its accompanying instructions that would allow employers
to indicate that alternative procedures were used if one was
authorized. See 87 FR at 50792.
DHS welcomed comments on the effects of the potential changes with
respect to employers, employees, and
[[Page 47998]]
DHS, including comments on the associated burdens or benefits, such as
reducing risks to the integrity of the alternative procedure(s),
avoiding discrimination in the process, and protecting privacy
interests. See, e.g., 87 FR at 50790. By the end of the comment period
in October 2022, DHS had received 512 public comments, the vast
majority of which expressed support for the NPRM. Many comments
provided suggestions that are consistent with this final rule and the
alternative procedure announced in the accompanying Federal Register
notice.
Consistent with the NPRM, this final rule responds to public
comments and amends 8 CFR 274a.2 to allow the Secretary to authorize an
optional alternative to the in-person physical document examination
method employers have followed as part of the Form I-9 process set
forth in current regulations. In addition, consistent with the NPRM,
DHS is announcing an optional alternative procedure featuring a number
of the specific integrity measures described in the NPRM.
As recognized in the NPRM, DHS believes this rule aligns with new
work arrangements for qualifying employers' employees. DHS believes the
combination of requiring E-Verify participation, fraud awareness
training, expanded document retention (to include clear and legible
copies of the identity and employment authorization documents presented
by employees to complete the Form I-9), and live video interaction
after the employee transmits a copy of the document(s) to the employer
for real-time verification offers at least an equivalent level of
security to physical examination.
Comment: A commenter stated that any reform to the Form I-9
document examination process would directly affect how U.S. employers
must comply with statutory verification requirements and that,
therefore, any such change should be considered subject to the APA's
notice-and-comment requirements. Other commenters recommended that DHS
provide relief from the physical inspection burden now, rather than at
some uncertain point in the future or after a second round of notice-
and-comment. A commenter stated that the NPRM was so broad that it
could allow the Secretary to implement--or not implement--any remote
inspection process by notice without the prospect of public input.
Commenters stated that the substantive changes resulting from this rule
could come by ``guidance,'' rather than regulation, which according to
the commenter would amount to a violation of the APA.
Response: Neither this final rule nor the accompanying optional
alternative procedure changes the statutory or regulatory requirements
for employment eligibility verification. The alternative procedure will
provide qualified employers with an option other than physical in-
person examination. The alternative procedure will not, however,
eliminate the core regulatory option of physical examination, for
either the employer or the employee. Similarly, a future authorization
by the Secretary to bypass the regulatory requirement to ``physically''
examine documents, whether as part of a pilot or as a temporary measure
to address a public health emergency or national emergency, would leave
existing regulations in place while a single regulatory requirement is
waived under certain conditions and for a specific period.
DHS will solicit feedback from the public again as appropriate and
consistent with law prior to implementing any permanent changes to the
Form I-9 document examination process, including additional alternative
procedures. Any such changes will be noticed in the Federal Register.
Partly in response to the above comments, DHS has revised the
regulatory text accordingly. See 8 CFR 274a.2(b)(1)(ix).
Comment: A commenter stated that because DHS did not accept
comments on the NPRM by mail, it failed to provide an opportunity to
comment to the subset of the population that neither owns nor has
access to a computer and/or internet service.
Response: Although the NPRM stated that ``comments submitted in a
manner other than the Federal eRulemaking Portal, including emails or
letters sent to DHS, will not be considered comments,'' 87 FR at 50786,
DHS provided an alternative method to allow members of the public
without access to a computer or internet a way to provide comments by
listing a telephone number and address for a person to contact for
alternate instructions on how to submit comments, see id. In doing so,
DHS ensured that all interested parties were provided an adequate
opportunity to comment on the NPRM.
E. The Alternative Procedure and Proposed Integrity Measures
1. Timing of the Alternative Procedure
Comment: Some commenters encouraged the authorization of a
permanent alternative procedure as soon as possible, and emphasized
that employers will be more likely to find the alternative procedure
useful if it is in place permanently. A commenter asked when the
Secretary would decide on an alternative procedure, and whether that
would only be after a pilot program was completed. A commenter asked
about what employers should do regarding remote worker verification
until such time as the Secretary decides on an alternative procedure. A
commenter asked what employers should do regarding remote worker
verification until such time as the Secretary decides on an alternative
procedure. Commenters stated that DHS should allow a reasonable period
for employers to update their systems and forms to align with the
change and should extend the current version of the form until the
alternative procedure is finalized to reduce any disruptions to company
operations.
Response: At this time, the Secretary is authorizing a permanent
optional alternative procedure as outlined in the accompanying Federal
Register notice. The Secretary has determined that it is not necessary
to first conduct a pilot program due to the integrity measures included
in the alternative procedure, as explained further below and in the
accompanying Federal Register notice describing the alternative
procedure. The alternative procedure includes transition measures under
which employers may implement the procedure prior to transition to the
new Form I-9.\35\ However, the Secretary may authorize a pilot program
to explore other optional alternative procedures or collect additional
data.
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\35\ The new edition of the Form I-9 is effective on August 1,
2023. Employers may continue to use the 10/21/2019 edition of the
Form I-9 from August 1, 2023 until the end of October 31, 2023. As
described elsewhere in this rule and accompanying notice, if during
this grace period an employer uses the 10/21/2019 edition of the
Form I-9 for the alternative procedure, the employer must indicate
its use of the alternative procedure by writing ``alternative
procedure'' in the Additional Information field in Section 2. No
later than November 1, 2023, employers must begin using the August
1, 2023, edition of the Form I-9. When using the August 1, 2023,
edition of the Form I-9, an employer must indicate their use of the
alternative procedure by completing the corresponding box in Section
2 or in the section corresponding to reverification (which is
Supplement B in the August 1, 2023 edition of Form I-9), as
appropriate.
---------------------------------------------------------------------------
2. Changes to the Form I-9 and Tracking Use of the Alternative
Procedure
Comment: A commenter asked if employers are expected to request
permission to use an alternative procedure and, if so, how they would
make such a request. Some commenters suggested that DHS should track
the use of the alternative procedure and completion of the Form I-9 to
understand any added risks. A commenter supported the proposal to
[[Page 47999]]
add a checkbox to the Form I-9 for this purpose but recommended that
the checkbox be added to the Employer Certification field rather than
the Additional Information field. Commenters stated that the complexity
of the Form I-9 provides opportunities for user error so any
modifications to the Form I-9 related to the alternative procedure
should favor simplicity. Some commenters stated that employers need
assistance in completing the new version of the Form I-9.
Response: As proposed, DHS is adding a box to the Form I-9;
employers will use the box to document the use of a DHS-authorized
alternative procedure. DHS decided to place the box in the Additional
Information field to ensure the overall length of the Form I-9 did not
increase. DHS has updated the Form I-9 instructions and E-Verify
training materials to ensure employers have resources available to
accurately complete the new version of Form I-9.
Comment: A commenter asked about what would occur if an employer
used the remote inspection procedure but failed to indicate that it had
done so on the revised Form I-9. A commenter asked if employers or
authorized representatives completing Section 2 of the Form I-9 by hand
would need to physically see Section 1 first, or if they could view an
electronic copy of a Form I-9 containing the completed Section 1
instead.
Response: DHS is updating the Form I-9 to add a box to be completed
by employers to indicate if an alternative procedure was used for
Section 2 or for reverification. The qualified employer (or an
authorized representative acting on an employer's behalf) must select
whether the employee's documentation was examined consistent with the
alternative procedure. Employers or authorized representatives must
review the information entered in Section 1 of the Form I-9 and ensure
that employees (and their preparer/translator, if applicable) fully and
properly completed Section 1.\36\ Form I-9 can be electronically
generated or retained, provided that the resulting form is legible;
there is no change to the name, content, or sequence of the data
elements and instructions; no additional data elements or language are
inserted; and the standards specified under 8 CFR 274a.2(e), (f), (g),
(h), and (i), as applicable, are met.\37\
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\36\ See Handbook for Employers M-274, Sec. 3.0, available at
<a href="https://www.uscis.gov/i-9">https://www.uscis.gov/i-9</a>-central/form-i-9-resources/handbook-for-
employers-m-274 (last visited May 24, 2023).
\37\ See 8 CFR 274a.2(a)(2).
---------------------------------------------------------------------------
As stated on the Form I-9, employers are liable for errors in the
completion of the form. Therefore, employers should read the
accompanying Federal Register notice carefully to understand the
applicable requirements of the alternative procedure. Employers are
also encouraged to refer to the information and guidance about applying
the alternative procedure on I-9 Central. Furthermore, E-Verify and I-9
Central provide free, online webinars, training, and various resource
materials to ensure employers have the necessary information to assist
in enrolling in E-Verify or completing the Form I-9.
3. E-Verify
Supporting E-Verify
Comment: Some commenters expressed support for limiting the
eligible population of employers who may use the alternative procedure
to employers enrolled in and in good standing in E-Verify. Commenters
listed several benefits of using E-Verify, such as the rapid
confirmation of documents and information presented by employees,
existing policies on the retention of copies of certain documentation,
increased fraud detection, improved efficiency of internal audits, and
decreased burdens on employers.
Commenters suggested that DHS resume worksite audits and increase
information sharing with the Internal Revenue Service (IRS) and Social
Security Administration (SSA) to ensure employers' compliance with
federal labor and immigration laws. A commenter suggested that
documents presented for the Form I-9 could be maintained in E-Verify
and a reverification request could be submitted when documents expire
and need to be renewed. Commenters suggested that E-Verify provide
statistics for participating employers during a pilot period and
provide a photograph match by linking photos from government agencies
that issue photo identification.
Response: DHS agrees with commenters that an employer's
participation in good standing in E-Verify provides meaningful security
benefits. At this time, E-Verify-enrolled employers in good standing
will be eligible to use the alternative procedure. However, nothing
prevents an employer from continuing to physically examine documents
presented for the Form I-9 \38\ and not applying the alternative
procedure.
---------------------------------------------------------------------------
\38\ A qualified employer does not need to use the alternative
procedure, but if a qualified employer chooses to apply the
alternative procedure to some employees at an E-Verify hiring site,
that employer must do so consistently for all employees at that
site, without discrimination. However, a qualified employer may
choose to continue to offer the alternative procedure for remote
hires only but continue to apply physical examination procedures to
all employees who work onsite or in a hybrid capacity, so long as
the employer does not adopt such a practice for a discriminatory
purpose or treat employees differently based on a protected
characteristic, i.e., their citizenship, immigration status, or
national origin. See 8 U.S.C. 1324b(a)(1).
---------------------------------------------------------------------------
E-Verify-enrolled employers confirm the employment eligibility of
their employees by electronically comparing information from an
employee's Form I-9 with records available to DHS. Specifically, E-
Verify confirms identity and employment eligibility for List A
documents such as U.S. passports, Permanent Resident Cards, and EADs,
and electronically sends the photograph from the official record to the
employer to compare with the photo on the document provided by the
employee. E-Verify requires all cases to include the employee's SSN,
and E-Verify compares employer-entered data with SSA records. E-Verify
proactively prevents processing of SSNs that are known to have been
used fraudulently. Finally, E-Verify requires that all List B documents
presented by employees contain a photo and uses data sources available
to DHS to verify the identity information provided on most state-issued
identification cards and driver's licenses. Because employment
authorization and identity verification are processed concurrently, the
enrolled employer usually receives a response from E-Verify within a
few seconds that either confirms employment eligibility or indicates
that further action is needed to complete the case.
DHS currently assesses that limiting eligibility for the
alternative procedure to qualified employers, coupled with various
requirements as outlined in the Federal Register notice, is necessary
to ensure an equivalent level of security to the physical examination
of Form I-9 documents. For this reason, DHS has determined that, as a
condition for participation in the alternative procedure, only those
employers enrolled and participating in good standing in E-Verify may
use the alternative procedure. Participant in good standing in E-Verify
refers to an employer that has enrolled in E-Verify with respect to all
hiring sites in the United States that use the alternative procedure;
is in compliance with all requirements of the E-Verify program,
including but not limited to verifying the employment eligibility of
newly hired employees in the United States; and continues to be a
participant in good standing in E-Verify at any time during which the
employer uses the alternative procedure. Employers opting
[[Page 48000]]
to use the alternative procedure at one or more hiring sites must not
adopt a practice for a discriminatory purpose of treating employees
differently based on a protected characteristic. Treating employees
differently based on these criteria would violate the INA's anti-
discrimination provision, 8 U.S.C. 1324b, and may violate or other
federal, state, or local laws.
Qualified employers will not be required to prove their compliance
with Form I-9 requirements before using the alternative procedure but
as stated in this final rule, an E-Verify-enrolled employer who is not
in good standing (e.g., not in compliance with the E-Verify Memorandum
of Understanding) is ineligible to use the alternative procedure.
DHS continues to explore ways to improve the Form I-9 process and
E-Verify, including how to improve compliance. DHS agrees that worksite
audits and increased information sharing with government partners are
critical elements in assisting employers to maintain compliance with
Form I-9 requirements. Although DHS is confident that the alternative
procedure offers at least an equivalent level of security, DHS will
monitor and evaluate data and information from ICE's Form I-9 audits
after the implementation of this alternative procedure to assess any
measurable impacts to system integrity (such as error or fraud rates)
and, based on this information, the Secretary may announce new
procedures or requirements, implement a pilot program to collect
further data, or seek public comment thereon, as appropriate, in the
Federal Register.
Opposing E-Verify
Comment: Some commenters opposed allowing only E-Verify-enrolled
employers to use an alternative procedure because that would increase
burdens on other employers who are otherwise compliant with the Form I-
9 requirements but who do not use E-Verify. Commenters stated that
small businesses in particularly would be burdened by a requirement to
use E-Verify.
A commenter stated that E-Verify lacks the capacity to support a
large influx of users on its system, citing an August 2021 report that
according to the commenter stated that the then-current capacity of E-
Verify was only 10,430 concurrent users with a projected goal of 29,515
concurrent users.\39\ The commenter expressed concern about E-Verify's
ability to function properly at increased capacity, and recommended
that before incentivizing a large-scale increase in potential E-Verify
usage, DHS test and confirm the capacity of E-Verify to scale up
sufficiently to meet the demands of all existing and potential users.
Another commenter suggested that to the extent that E-Verify enrollment
is a condition for participation in the alternative procedures, it
would encourage a phased roll-in process based on employee headcount,
company revenue thresholds, or both.
---------------------------------------------------------------------------
\39\ See DHS, Office of Inspector General, OIG-21-56, USCIS
Needs to Improve Its Electronic Employment Eligibility Verification
Process (Aug. 23, 2021).
---------------------------------------------------------------------------
Another commenter stated that the hourly cost and burden of
completing the E-Verify new user tutorial ``can be substantial,''
particularly for compliant employers with high turnover, no internal HR
team, or prospective employees who may distrust the E-Verify system.
Another commenter stated that the use of E-Verify is not required by
federal law, that an alternative procedure available only to E-Verify
participants would effectively render E-Verify use mandatory for some
employers, and that, for some, E-Verify creates an additional
``hardship'' with no impact on an employer's obligation to review Form
I-9 documents. Another commenter remarked that requiring employers to
be enrolled in E-Verify as a condition for using the alternative
procedure overlooks that many employers need relief from physical
examination requirements.
Response: Employers who are already enrolled in E-Verify are not
required to re-enroll in E-Verify to use the alternative procedure, and
E-Verify has the capacity to support an increased number of employers
who may choose to newly enroll in E-Verify to use the alternative
procedure. E-Verify does not replace the examination of Form I-9
documents and completion of the Form I-9. E-Verify supports the
employer by comparing information entered by an employer from an
employee's Form I-9 to records available to DHS, including those
maintained by the SSA, to confirm the employee's identity and
employment eligibility. Because employment authorization and identity
verification are processed concurrently, the enrolled employer usually
receives a response from E-Verify within a few seconds that either
confirms employment eligibility or indicates that further action is
needed to complete the case. E-Verify prioritizes security interests,
limits the risk of fraud, mitigates verification errors, helps
employers maintain compliance, and protects the worker from unfair
employment competition. DHS disagrees that E-Verify imposes substantial
burdens on large or small employers, and DHS currently assesses that
enrollment in and use of E-Verify related to an alternative procedure
to examine identity and work authorization documents is necessary to
maintain an equivalent level of security. Employers who choose to use
the alternative procedure will only do so if the benefits of doing so
outweigh the costs. Over 1.1 million employers, representing varying
workforce sizes and all types of U.S. industries, are already enrolled
in E-Verify \40\ and DHS estimates that employers created E-Verify
cases for nearly 62% of new hires in the United States in fiscal year
2022.\41\ The program is responding to the aforementioned August 2021
report to demonstrate improved scalability to handle increases in query
volume and continuously pursuing technical improvements to increase and
improve automation and streamline case processing. The alternative
procedure itself does not require or permit the employer to use E-
Verify to confirm the identity and employment authorization of existing
employees, but only of new hires,\42\ unless the employer is a federal
contractor and is required to by the Federal Acquisition Regulation
(FAR) E-Verify clause.\43\ DHS estimates that the one-time E-Verify
enrollment process takes new participants 2.26 hours to enroll review
and sign the Memorandum of Understanding (MOU), review the user guides,
and complete the tutorial.\44\ DHS estimates one hour for each
additional user for an enrolled employer to complete the tutorial.\45\
Finally, nothing in this final rule
[[Page 48001]]
requires an employer who is already enrolled in E-Verify to use the
alternative procedure or for their employees to complete the tutorial
more than once.
---------------------------------------------------------------------------
\40\ USCIS, E-Verify Usage Statistics, <a href="https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-usage-statistics">https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-usage-statistics</a> (last updated
Jan. 12, 2023) and USCIS, How To Find Participating Employers,
<a href="https://www.e-verify.gov/about-e-verify/e-verify-data/how-to-find-participating-employers">https://www.e-verify.gov/about-e-verify/e-verify-data/how-to-find-participating-employers</a> (last updated Jan. 12, 2023).
\41\ According to the U.S. Department of Labor, Bureau of Labor
Statistics, there were approximately 77.6 million new hires in
fiscal year 2022 (<a href="https://www.bls.gov/bls/news-release/jolts.htm">https://www.bls.gov/bls/news-release/jolts.htm</a>)
compared to 48.0 million queries processed through the E-Verify
system in the same period available at <a href="https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance">https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance</a> (last visited June
8, 2023).
\42\ In the case of reverification, a qualified employer that
applies the alternative procedure would examine documents remotely
according to the alternative procedure but would not create a new
case in E-Verify.
\43\ The FAR E-Verify clause, found at 48 CFR, Subpart 22.18,
requires federal contractors verify all new hires and existing
employees assigned to the federal contract. Federal contractors may
also opt to verify their entire workforce with E-Verify.
\44\ See USCIS, Supporting Statement for E-Verify Program (OMB
Control No. 1615-0092) (uploaded May 20, 2023), available at <a href="https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=202305-1615-001">https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=202305-1615-001</a>
(last visited May 20, 2023).
\45\ See id.
---------------------------------------------------------------------------
DHS will monitor and evaluate data and information from ICE's Form
I-9 audits conducted after the implementation of this alternative
procedure to assess any measurable impacts on system integrity (such as
error or fraud rates). Given the absence of reliable data at this time,
DHS believes that the requirements outlined in this final rule and in
the accompanying Federal Register notice appropriately address concerns
about the risks of increased fraud.
4. Document Retention
Comment: Several commenters expressed that document retention
requirements would increase burdens and/or costs to employers and that
employers may face challenges with respect to the secure and efficient
storage of electronic documentation as a result of any new process.
Commenters asserted that it is unfair to assume that all businesses
have the resources to store physical and electronic records for all
employees in a way that prevents sensitive information from being
stolen or compromised. Another commenter said that clarification about
such requirements would be expected with the emergence of new
technologies, such as new and more secure ways to send and store
documents electronically. A commenter expressed concern about the
unsecured transmission of document images under the alternative
procedure, noting that document images contain sensitive personal
information, and that employers may be subject a range of laws and
regulations intended to protect employee privacy.
Some commenters stated that a new requirement for employers to
retain copies of all documents presented for the Form I-9 would amount
to a requirement stricter than the law requires. A commenter stated
that employers are not required to prove that a document is ``real'';
rather, the issue is whether documents can be examined remotely to
determine if they reasonably appear to be genuine and associated with
the employee who presents them. Another commenter stated that retaining
copies only indicates that an employer has seen the presented
documents, not whether they conducted a compliant document examination.
Some commenters suggested that DHS should require that remote
verification be conducted with a video link, rather than by
transmitting the document through email, fax, or another cloud-based
medium. The commenters stated that document transmission and
verification via video would align with statutory and regulatory
requirements because the employer (or the employer's authorized
representative) could see the employee and confirm that the documents
both reasonably appear to be genuine and related to that individual.
Response: DHS understands that the retention of all identity and
employment authorization documentation examined by an employer to
complete the Form I-9 may add administrative and operational burdens
such as intake, storage, and handling of documents, and may require the
employer to expend some economic resources. However, examination of
documentation using an alternative procedure rather than a physical in-
person examination provides direct and immediate cost savings and
operational efficiencies, such as the reduced costs associated with
needing to use an authorized representative and increased opportunities
to centralize document examination functions. The requirement to retain
all identity and employment eligibility documentation examined by an
employer to complete the Form I-9 is only applicable to the alternative
procedure. If an employer believes that applying the alternative
procedure is burdensome, nothing prevents the employer from physically
examining Form I-9 documents under longstanding regulatory procedures.
See 8 CFR 274a.2(b)(3).
To ensure the security of the alternative procedure, DHS is
requiring any qualified employer who chooses to use the alternative
procedure to retain clear and legible copies of any of the Form I-9
documents presented to establish identity and employment authorization.
This retention requirement allows DHS to assess the documents that were
presented to, and remotely examined by, the employer in the event of an
audit, and help to determine whether the documents examined by the
employer reasonably appeared on their face to be genuine and to relate
to the employee, that the employer has not discriminated against
employees, and that the employer has complied with other Form I-9
requirements as required by statute (8 U.S.C. 1324a(b)(1)(A)(ii)) and
regulation (8 CFR 274a.2(b)(1)(ii)(A)). A qualified employer does not
need to use the alternative procedure, but if a qualified employer
chooses to offer the alternative procedure for some employees at an E-
Verify hiring site, that employer must do so consistently for all
employees at that site. However, a qualified employer may choose to
offer the alternative procedure for remote hires only but continue to
use physical examination procedures for all employees who work onsite
at an employer worksite or in a hybrid capacity, so long as the
employer does not adopt such a practice for a discriminatory purpose or
treat employees differently based on a protected characteristic.\46\
Under no circumstances can employers unlawfully discriminate, such as
by deciding who is eligible for the alternative procedure based on a
protected characteristic.\47\ For employees whose documents are
examined via physical examination under the longstanding regulations,
the document retention requirements of the alternative procedure do not
apply.
---------------------------------------------------------------------------
\46\ See, e.g., 8 U.S.C. 1324b(a)(1), which prohibits
discrimination based on citizenship, immigration status, and
national origin.
\47\ See 8 U.S.C. 1324b(a)(1).
---------------------------------------------------------------------------
With respect to the suggestion that some businesses may lack the
resources to store physical and electronic records for all employees in
a way that prevents sensitive information from being stolen or
compromised, DHS notes that businesses that choose to adopt the
alternative procedure would likely have already adapted their business
practices consistent with general Form I-9 document storage and
retrieval requirements, see, e.g., 8 CFR 274a.2(b)(3) (option to store
certain documentation with the Form I-9), (e) (standards for electronic
retention of Form I-9), (f) (documentation of certain business
processes), and (g) (implementation of an effective records security
program). Copies retained under the alternative procedure must meet
these standards. In addition, under existing procedures, E-Verify
participants must photocopy and retain certain documents if the
employee voluntarily provided them for Section 2 of the Form I-9.\48\
For these reasons, the additional burden on the employer to manage
copies of documents securely and effectively will typically not be
high. DHS agrees with commenters that employers have an incentive to
ensure the security of such records in transit and at rest, and notes
that employees may opt to not use the procedure, and instead avail
themselves of the physical examination process under longstanding
regulations, for any reason, including
[[Page 48002]]
concerns about personal privacy. Should DHS become aware of significant
gaps in this area, DHS may recommend or require further measures at a
future date.
---------------------------------------------------------------------------
\48\ See Handbook for Employers M-274, Sec. 9.2, available at
<a href="https://www.uscis.gov/i-9">https://www.uscis.gov/i-9</a>-central/form-i-9-resources/handbook-for-
employers-m-274 (last visited May 24, 2023) and Article II.A.6. of
the E-Verify Memorandum of Understanding, available at <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> (last visited May 24, 2023).
---------------------------------------------------------------------------
Comment: Multiple commenters asked DHS to include clear guidance
and protocols on Form I-9 document retention requirements and stated
that the objective of document retention was unclear from the
regulatory text. Commenters questioned where and for how long
electronic documents should be retained under the alternative
procedure, and who would have access to those records. A commenter
suggested that DHS should establish consistent Form I-9 document
retention requirements relevant to E-Verify and non-E-Verify-
participating employers using the alternative procedure.
Response: DHS understands it is important for employers to have
access to clear and thorough guidance on the alternative procedure,
including any requirements for using the alternative procedure such as
document retention. As detailed in the accompanying notice and this
final rule, to offer an equivalent level of security, at this time, the
alternative procedure includes certain requirements including a
condition for participation and parameters that employers who choose to
use the alternative procedure must follow. Qualified employers who use
the alternative procedure must retain a clear and legible copy of all
documents presented by the employee seeking to establish identity and
employment eligibility for the Form I-9. Conversely, E-Verify enrollees
who do not use the alternative procedure and only physically examine
identity and work authorization documentation for Form I-9 would only
be held to the existing requirements for E-Verify participants to
retain copies of U.S. passports and passport cards, Permanent Resident
Cards, and EADs.\49\ All employers who retain documents for Form I-9
must abide by the Form I-9 document retention timeframe set forth in
federal regulations, namely three years after the employee's first day
of employment, or one year after the date employment ends, whichever is
later. See 8 CFR 274a.2(b)(3). Document retention requirements related
to the Form I-9, as well as up-to-date instructions and related
guidance for the alternative procedure, will be available on I-9
Central and in USCIS' Handbook for Employers (M-274).\50\ The objective
of retaining all documents presented to establish identity and
employment authorization (from the Lists of Acceptable Documents on the
Form I-9), is to create additional accountability by enabling a federal
government official to assess during a Form I-9 audit if the employer's
determination at the time of examination regarding whether the
documents appear to be genuine and relate to the individual who
presented them (8 CFR 274a.2(b)(a)(1)(ii)(A)), as required by statute
and regulation (8 U.S.C. 1324a(b)(1)(A)), was reasonable.
---------------------------------------------------------------------------
\49\ See id.
\50\ See Handbook for Employers M-274, available at <a href="https://www.uscis.gov/i-9">https://www.uscis.gov/i-9</a>-central/form-i-9-resources/handbook-for-employers-
m-274 (last visited May 23, 2023).
---------------------------------------------------------------------------
Although DHS is confident that the alternative procedure offers at
least an equivalent level of security, DHS will monitor and evaluate
data and information from ICE's Form I-9 audits after the
implementation of this alternative procedure to assess any measurable
impacts to system integrity (such as error or fraud rates) and, based
on this information, the Secretary may announce new procedures or
changes to the alternative procedure.
Comment: Commenters suggested that DHS provide clarification about
each electronic document transmission method available to qualified
employers and how to show documents remotely under each method (e.g.,
requirements to show the front and back of a document). A commenter
asked if employers would need to see copies of both the front and back
of presented Form I-9 documentation. A commenter asked if there would
be quality standards for acceptable Form I-9 documentation.
Response: At this time, DHS believes that many employers have
already updated their onboarding processes to accommodate remote
workers and those employers who, as a result of this rule, choose to
update their systems can do so in a manner that suits their processes,
including making updates in order to transmit documents electronically.
Nothing in this rule or the accompanying alternative procedure requires
qualified employers to adopt a specific transmission method for copies
of the documents.
Information about how to conduct the alternative procedure is
contained in the accompanying Federal Register notice. DHS also
maintains online information about the Form I-9 online at the I-9
Central website (I-9 Central),\51\ a central repository for information
about the Form I-9 that will include instructions, guidance on applying
the alternative procedure, and other learning resources. DHS is
updating the instructions to the Form I-9 to state that copies of
presented documents must be clear and legible, and must display the
front of the document, and the back of the document, if two-sided.
---------------------------------------------------------------------------
\51\ See <a href="https://www.uscis.gov/i-9">https://www.uscis.gov/i-9</a>-central (last visited May 24,
2023).
---------------------------------------------------------------------------
5. Training
Supporting Training
Comment: Some commenters supported fraudulent document awareness
training and anti-discrimination training as a prerequisite for
applying the alternative procedure. Some commenters supported web-based
training on fraudulent document detection and anti-discrimination as a
critical component of any verification process to assess if the
documents presented to complete the Form I-9 were genuine, while
precluding immigration-related discrimination and ensuring compliance
by both employees and employers. Specifically, one commenter provided
examples of employers who refuse to accept an identity document listed
on the Lists of Acceptable Documents provided with the Form I-9 and
insist that employees produce an alternate identity document.
Furthermore, those commenters stated that training should be free, web-
based, and accessible to every U.S. employer to ensure compliance,
enhance fraudulent document detection, reduce discrimination, and
minimize the overall burden of the employment eligibility verification
process.
Another commenter recommended that DHS borrow document
authentication training materials from the ICE Mutual Agreement between
Government and Employers (IMAGE) program.\52\ Various commenters urged
DHS to create training plans, monitor completion rates, and make the
training easily accessible online and free of charge.
---------------------------------------------------------------------------
\52\ DHS's IMAGE program is a membership certification program
that focuses reducing unauthorized employment and the use of
fraudulent identity documents by providing education and training on
proper hiring procedures, fraudulent document detection, and use of
the E-Verify employment eligibility verification program, available
at <a href="https://www.ice.gov/outreach-programs/image">https://www.ice.gov/outreach-programs/image</a> for more information
(last visited May 24, 2023).
---------------------------------------------------------------------------
Response: DHS agrees with the commenters and supports additional
training as a sound safeguard against the occurrence of fraud in the
Form I-9 process. DHS believes that such training, including anti-
discrimination training, protects the integrity of the Form I-9
process.
8 U.S.C. 1324b prohibits employers from discriminating against
individuals based on their citizenship or
[[Page 48003]]
immigration status, or their national origin, during the hiring,
firing, recruiting, Form I-9, or E-Verify processes. Employers should
develop, implement, and enforce anti-discrimination policies,
practices, and procedures, and ensure that all employees who complete
the Form I-9 (and their authorized representatives) or create E-Verify
cases on the employers' behalf comply with all applicable statutory and
regulatory requirements.
Employers must examine the documentation the employee presents for
the Form I-9, but are not required to be document experts. Instead,
employers must accept documents that reasonably appear to be genuine
and relate to the person presenting them. See 8 U.S.C. 1324a(b)(1)(A),
8 CFR 274a.2(b)(i)(2)(A). For example, when a passport appears to be
reasonably genuine and to relate to the individual presenting it, an
employer cannot refuse to accept it just because the individual may
have limited English proficiency.\53\ However, if the employee provides
a document that does not reasonably appear to be genuine and to relate
to the employee, the employer must reject that document, ensure that
the Lists of Acceptable Documents are available to the employee, and
give the employee an opportunity to provide other documentation that
satisfies the requirements of Form I-9. See, e.g., 8 U.S.C.
1324a(b)(1)(A). If an employee believes that they have been
discriminated against by the employer based upon citizenship,
immigration status, or national origin, unfair documentary practices,
or retaliation, the employee should contact the Department of Justice,
Civil Rights Division, Immigrant and Employee Rights Section (IER), at
1-800-255-7688. IER hotlines are available Monday through Friday from 9
a.m. to 5 p.m. (Eastern). Calls can be anonymous, and language services
are available. Additional information is available at <a href="https://www.justice.gov/ier">https://www.justice.gov/ier</a>.
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\53\ See 8 CFR 274a.1(l)(2).
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DHS will ensure the availability of free online fraud awareness
training through the required tutorial offered as part of the E-Verify
enrollment process for qualified employers who choose to use the
alternative procedure. As part of the E-Verify registration process,
new employers and users must complete a free tutorial that includes
fraud awareness and anti-discrimination training. DHS will also
continue to encourage best employment practices by supporting employers
who seek to become IMAGE Certified.
DHS will monitor and evaluate data and information from ICE audits
conducted to assess any impacts on system integrity (such as error or
fraud rates) as between the alternative procedure and the physical
examination of Form I-9 documents. Additionally, this final rule
authorizes the Secretary to conduct a pilot program to acquire and
assess more data. DHS will evaluate all data and information collected
through ICE audits and pilot programs with a continued goal of offering
an alternative procedure to the widest group of employers while
balancing the security of any alternative procedures implemented under
the rule.
Comment: Commenters suggested that DHS publish a ``job aid'' for
identifying fraudulent documents as a reference for Form I-9 document
examiners. Commenters suggested that DHS provide written resources to
employers or authorized representatives or provide a structured
certification program that would help ensure compliance. Additionally,
commenters stated that DHS should align or incorporate the required
training with E-Verify and create training content that is more
digestible for employers. Some commenters said that that the current
Form I-9 instructions lack descriptions for valid documentation such as
the Form I-797 and the Form I-766, and information about whether any
documents must be accompanied by additional supporting documents or an
expiration date.
Response: DHS agrees with commenters that guidance should be easily
understood and descriptive, and that the Form I-9 process is
strengthened when training resources are readily available. I-9 Central
is updated as needed to ensure employers know how to properly complete
the Form I-9. DHS also provides current information and guidance in the
M-274, Handbook for Employers, which is available online, and contains
detailed examples with images of different document types and
information about acceptable document combinations, including when
supplemental documents are needed to qualify as an acceptable document
combination for the Form I-9.
DHS will provide fraudulent document awareness training through E-
Verify which will be free and readily accessible for qualified
employers who choose to use the alternative procedure. DHS understands
that creating a ``job aid'' for identifying fraudulent documents would
be useful; however, employers can join ICE IMAGE and receive HSI-
provided training and guidance on proper hiring procedures and
fraudulent document awareness.\54\
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\54\ For more information see <a href="https://www.ice.gov/outreach-programs/image">https://www.ice.gov/outreach-programs/image</a> (last visited June 5, 2023).
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Opposing Training
Comment: Several commenters opposed associating access to remote
document examination with government-provided mandatory training
because they said doing so would defeat the purpose of the proposed
rule, which is to ease--not add to--the burden on employers. They also
indicated that the alternative procedure would impose substantial costs
on small business owners by diverting resources and attention away from
business activities. Commenters stated that the burden of compliance
rests on the employer so DHS should make training resources available
but defer to employers on how to train employees to examine identity
and employment authorization documents presented for the Form I-9.
Commenters stated that companies leveraging authorized
representatives are already aware of their liability for any Form I-9
violations and may already have internal processes to reduce the
potential for errors, including training programs.
Response: DHS is committed to providing employers useful learning
resources to help them complete the Form I-9 correctly and agrees that
completing Form I-9 training and accessing these resources should not
be unduly onerous. For qualified employers who choose to use the
alternative procedure, free training, instructions, and guidance for
completing the Form I-9 using the alternative procedure will be
available on I-9 Central. Under the parameters of the alternative
procedure outlined in this final rule, nothing prevents a qualified
employer from centralizing their Form I-9 process.
DHS disagrees that mandatory training would defeat the purpose of
the alternative procedure or would impose substantial costs on small
businesses. At this time, DHS is requiring employers who seek to use
the alternative procedure and that are not already enrolled in E-Verify
to complete the E-Verify new user tutorial, which includes fraud
awareness and anti-discrimination training. The tutorial is free and
accessible online as part of the E-Verify enrollment process. DHS
estimates that the one-time E-Verify enrollment process takes new
participants 2.26 hours to enroll, review and sign the MOU, review the
user
[[Page 48004]]
guides, and complete the tutorial. DHS estimates one hour for each
additional user for an enrolled employer to complete the tutorial.\55\
Finally, nothing in this final rule requires an employer who is already
enrolled in E-Verify to use the alternative procedure or for their
employees to complete the tutorial more than once.
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\55\ As estimated in the supporting statement for the currently
approved information collection at the time of publication, 1615-
0092, E-Verify Program, available at <a href="https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202103-1615-015">https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202103-1615-015</a> (last visited May 24, 2023).
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Comment: A commenter stated while they supported mandatory
fraudulent documentation detection training for employers, they would
not support mandatory training for all authorized representatives. This
commenter stated that requiring such training for all authorized
representatives would place an undue burden on individuals who might
never need to complete another Form I-9 in the future, create an
obstacle for already disadvantaged individuals who may not have the
means to easily submit digital copies of documents, and preclude
employers from using authorized representatives as a method of
verification. Another commenter reasoned that companies leveraging
authorized representatives are already aware of their liability for any
verification violations and may already have internal processes to
reduce the potential for errors, including training programs.
Response: This rule and the alternative procedure announced in the
accompanying Federal Register notice do not require training for
authorized representatives specifically.
6. Live Video Interaction
Comment: A commenter asked if, when confirming that Section 2
documents are related to the person presenting them, the employer would
be required to see the employee via live video.
Response: The alternative procedure outlined in the accompanying
Federal Register notice states that the employer must conduct a live
video interaction with the employee. The employee must first transmit
the copy of the document(s) to the employer and then present the same
documents during the live video interaction to ensure that the
documentation presented appears reasonably related to the individual
presenting it.
Comment: A commenter expressed concern that the NPRM did not
adequately address the potential costs associated with certain
integrity measures and the potential negative impacts on a portion of
the population (such as employees who lack internet access).
Response: DHS appreciates the concern that employers implementing
an alternative procedure could encounter costs and that some persons,
such as employees without internet access, might not wish to use the
alternative procedure. This final rule allows the Secretary to
authorize an alternative procedure for Form I-9 document examination
procedures for qualified employers but does not eliminate the physical
in-person examination option for the employer or the employee. Nothing
in this rule requires employers to offer, or employees to use, the
alternative procedure. DHS understands that choosing to use the
alternative procedure may require an employer to engage in certain
activities that may incur a cost, including enrolling in E-Verify (or
remaining a participant in E-Verify in good standing), collecting and
retaining copies of Form I-9 documents presented by employees, and
completing training. Any of these factors, and others, may influence an
employer's decision to offer the alternative procedure, and the
employee's decision to use it. However, DHS also understands that there
are possible benefits to using the alternative procedure, such as
improved operational and administrative efficiencies which may result
in fewer Form I-9 mistakes and savings on third-party verification
costs. DHS expects that affected persons will choose to use the
alternative procedure if they believe it is in their best interests to
do so.
Comment: A commenter asked if DHS could, to avoid any
misunderstanding by employers, define what a remote employee is.
Response: A definition of ``remote worker'' is not necessary for
this alternative procedure, because unlike the temporary flexibilities
announced by DHS in March 2020 to address physical proximity
precautions implemented by employers to combat the COVID-19 pandemic,
the optional alternative procedure described here is available to
employers with respect to all employees of qualified employers,
including non-remote employees. As noted above, however, a qualified
employer may choose to offer the alternative procedure for remote hires
only but continue to apply physical examination procedures to all
employees who work onsite or in a hybrid capacity, so long as the
employer does not adopt such a practice for a discriminatory purpose or
treat employees differently based on a protected characteristic.\56\
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\56\ See 8 U.S.C. 1324b(a)(1).
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F. Pilot Program
Comment: Multiple commenters asked for further explanation of the
goal of a potential pilot program, as well as how it will affect
employers and employees. Commenters questioned what a potential pilot
program would involve, what kind of pilot program would be added (and
when), what authorities it would grant, and how employers and employees
would be fully impacted both during the pilot phase and in the long-
term. Commenters stated that because there were information gaps in the
NPRM, the public was unaware of all aspects of any proposed changes and
therefore could not provide adequate comment.
Another commenter suggested that the pilot program should focus on
industries with high turnover rates, remote workforces, and businesses
that provide staffing services for construction, food service,
restaurants, hospitality, higher education, and the healthcare fields
should be considered for participation in the pilot.
Response: At this time, the Secretary is authorizing a permanent
alternative procedure as outlined in the accompanying Federal Register
notice. The Secretary has determined that it is not necessary to first
conduct a pilot program. However, in the future, the Secretary may
authorize a pilot program to explore other optional alternative
procedures or collect additional data. At this time, DHS believes it is
prudent to authorize an alternative option for examining employees'
identity and employment eligibility Form I-9 documents because one of
the lessons learned during the COVID-19 pandemic was that there is a
need for an optional alternative to the in-person physical examination
method employers have followed as part of the Form I-9 process set
forth in current regulations.
After careful consideration of the comments received and concerns
raised by the public, DHS created the framework for an alternative
procedure that is detailed in this final rule and in an accompanying
Federal Register notice. Additionally, the final rule authorizes the
Secretary to conduct a pilot program to acquire and assess more data.
DHS will evaluate all data and information collected through audits
after the implementation of this alternative procedure and pilot
programs with a continued goal of expanding the availability of an
alternative procedure to other
[[Page 48005]]
employers while ensuring the level of security offered by any
alternative procedure implemented under the rule. With respect to
commenters' stated concern that DHS has not sought comment on a
specific proposed pilot, DHS appreciates commenters' concern, and notes
that any pilot authorized by DHS would be entirely optional, time-
limited, and designed to help DHS assess potential alternative
procedures.
DHS appreciates the suggestion to consider industries with high
turnover rates, and to consider allowing participation across multiple
industries, in a future pilot program.
Comment: Commenters suggested that, if DHS were to proceed with a
pilot program, any such pilot program should last for at least five
years to allow employers and vendors sufficient time to recoup any
necessary investments to participate. This should also provide ample
time to transition to a permanent program or revert to pre-COVID-19
processes. Commenters noted that employers have learned many important
lessons from the temporary flexibilities first announced in March 2020
that would render any future pilot program redundant.
Response: This final rule authorizes the Secretary the option to
conduct a pilot program to explore other possible alternative
procedures. DHS will evaluate all data and information collected
through Form I-9 audits and pilot programs with a continued goal of
expanding the availability of an alternative procedure to the widest
group of employers while balancing the security of any alternative
procedures implemented under the rule. The Secretary will announce any
such pilot programs, new procedures, or changes to this alternative
procedure in the future. DHS will consider the suggestion that any
future pilot program should last for an appropriate length of time that
would allow as many employers as possible to participate. During the
period when the Form I-9 flexibilities were in place, DHS did not
collect additional information to evaluate the impacts of the
flexibilities on the integrity of the Form I-9 process. However, DHS
will monitor and evaluate data and information from ICE's Form I-9
audits conducted after the implementation of this alternative procedure
to assess any measurable impacts on system integrity (such as error or
fraud rates). In addition, DHS may conduct a pilot program to acquire
and assess more data. DHS will evaluate all data and information
collected to ensure the security of any alternative procedures
implemented under this final rule.
G. Suggestions for Additional Changes or Alternative Procedures
1. Past Fines, Settlements, and Convictions
Comment: Some commenters suggested that DHS require employers who
have failed to follow Form I-9 instructions in the past to physically
examine documentation and prove their compliance before being
considered eligible for an alternative procedure. Another commenter
stated that although it might seem ``reasonable at face value'' to
restrict participation if an employer has been the subject of a fine,
settlement, or conviction related to noncompliance with Form I-9
requirements, this approach could make compliance more difficult for
these employers. Further, the commenter stated that if the goal is
compliance, restricting participation would not be an effective
strategy. An individual commenter said that, while they understood the
inclination to treat an alternative procedure as a ``privilege,''
employers found to have ongoing technical errors could become more
compliant by centralizing their Form I-9 process and tasking document
verification to a trained, experienced team with the ability to
complete Section 2 remotely.
Response: DHS has not included such a restriction in the
alternative procedure accompanying this rule, because DHS believes that
the measures included in the alternative procedure offer at least an
equivalent level of security. DHS recognizes that past violations are
not necessarily indicative of current noncompliance, and currently
lacks a clear methodology to distinguish between past violators on the
basis of (for instance) type or number of violations. DHS may, however,
prioritize audits on the basis of past violations, consistent with
available resources and law enforcement prerogatives. In addition, DHS
has included a condition that qualified employers be E-Verify
participants in good standing, for the reasons explained above.
2. Document Examination by Other Parties or by Mail
Comment: Several commenters recommended that DHS allow the U.S.
Postal Service, licensed notaries, library employees, clerks in local
government, or DMV employees to conduct Form I-9 document examinations,
or allow physical document examination be done by local, certified
third parties, such as notaries. A commenter recommended that DHS allow
employers and HR staff, specifically, to verify the Form I-9
documentation showing work authorization by mail and then allow a
manager to confirm the employee's identity in-person.
Response: DHS appreciates these suggestions and will continue to
explore ways to improve the Form I-9 process. At this time, DHS
believes that the accompanying alternative procedure offers sufficient
flexibility for employers while DHS continues to evaluate other options
to facilitate compliance and reduce burdens on employers and employees.
DHS notes that existing regulations continue to allow the use of
authorized representatives. See, e.g., 8 CFR 274a.2(b)(1)(ii).
3. Existing Digital Tools
Comment: Some commenters suggested that DHS permit, as part of the
Form I-9 process, the use of existing virtual and digital tools and
services that examine documents and verify the identity of the
individual. Commenters stated these services are used by other federal
and state agencies to authenticate an individual's identity. Another
commenter suggested allowing for alternative processes as long as they
complied with established federal government authentication standards,
presenting ID.me as an example. One commenter suggested that DHS should
allow for effective and sustainable digital identification solutions in
the future, with consideration given to those services that currently
overlap with the Form I-9. Another commenter referenced the increasing
use of digital driver's licenses, which some U.S. states have begun
issuing, making the case that requiring physical documents is outdated.
A commenter stated that due to added protections provided by
participation in E-Verify, coupled with advances in technology, remote
verification poses a lower risk than in the past. Another commenter
stated that commercial platforms and scanning technology already enable
the employee to share images of verification documents though fax,
email, or other means in advance of, or simultaneous to, a video
meeting. Thus, an employer can ``toggle'' between a copy of the
verification documents received and the video screen, effectively
approximating the in-person verification experience.
A commenter suggested that DHS allow digital document submission
rather than requiring physical document copies because it would allow
businesses to realize the efficiencies offered by digital innovations,
noting that some U.S. states have begun issuing digital driver's
licenses. Another commenter suggested that DHS work
[[Page 48006]]
with state governments to create and share photos in a database.
Various technological approaches were suggested for uploading and
collecting Form I-9 documentation, including webcam or video recording,
facial recognition software, email, a secure document portal, or a
document scanner (similar to methods used by other government agencies
or by sending a link to the employee's telephone). A commenter stated
that DHS should allow employers to select how to conduct alternative
procedures because a requirement to use a specific set of methods would
add undue and burdensome expenses.
Response: DHS agrees that the Form I-9 process may benefit from the
use of existing and future digital services, whether private or public.
The use of E-Verify and remote document examination under the
alternative procedure is one example of the ways in which information
technology can reduce burdens while ensuring the integrity of the
employment verification system. As another example, DHS is also
currently developing E-Verify NextGen, an exciting new product that
modernizes and streamlines the Form I-9 and verification process for
employees and employers.\57\ DHS will continue to explore opportunities
to leverage public and private information technology resources to
improve the Form I-9 process, consistent with available resources and
statutory authorities. At this time, however, DHS is not requiring
employers to use a specific technology as a condition of implementing
the alternative procedure.
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\57\ See E-Verify, Coming Soon: E-Verify NextGen, available at
<a href="https://www.e-verify.gov/about-e-verify/whats-new/coming-soon-e-verify-nextgen">https://www.e-verify.gov/about-e-verify/whats-new/coming-soon-e-verify-nextgen</a> (last visited May 20, 2023).
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A number of the suggested alternative approaches to document
examination path would carry risks that could impact employers' ability
to implement the alternative procedure, as well as the incidence of
fraud, data security, national security, or other equities. For
instance, digital identification systems, including systems that
involve interaction with government databases, may pose different or
additional privacy risks. In a digital identity[hyphen]check
environment, a person's entry into a particular area can be recorded
and the information stored for some period of time. If not properly
protected, this information, which includes PII, could also be
repeatedly shared or used for secondary purposes, even potentially used
for broader surveillance. The Privacy Act of 1974, the E-Government Act
of 2002, and other authorities, to include DHS privacy policies, govern
DHS's collection, maintenance, and use of PII to prevent and mitigate
privacy risks, to include identity theft or other adverse, unauthorized
misuses of individuals' PII. In addition, as DHS has certain law
enforcement functions involving counterterrorism and intelligence, it
abides by certain standards for data sharing, which makes systems
integration more complicated to protect law enforcement missions in the
areas of border security, criminal law enforcement, criminal
investigations, and immigration enforcement. For these and other
reasons, DHS believes that the suggested alternatives are infeasible at
this time.
Furthermore, this rule and accompanying notice are providing an
option to qualified employers to use an alternative method to verify
employees' identity and employment authorization for the Form I-9. The
employer may use various communication platforms to conduct a live
video- and audio-conferencing interaction to examine the document with
the employee who presents the documents. In contrast, `verification
sites' or `digital identity' platforms may use artificial intelligence
or other facial recognition software in place of document examination,
and raise a host of issues that DHS cannot fully address at this time.
DHS may consider using a secure digital identity verification in
combination with video conferencing in the future after conducting
further analysis and assessment. This rule is providing an option to
employers to use an alternative procedure for examining the identity
and employment authorization documents of an employee to complete the
Form I-9.
With regards to digital licenses, not every state provides digital
licenses and this rule does not change the acceptable Form I-9
documents to demonstrate identity and employment authorization. DHS
will continue to engage with state motor vehicles departments on
information sharing and may consider partnerships in the future.
DHS may explore additional options in the future after further
assessments and analysis are conducted.
4. Emerging Technology
Comment: A commenter stated that DHS should authorize a procedure
that allows for employment eligibility verification via mobile
application transactions, in order to accommodate future innovation in
this area. The commenter stated that employers are not forensic
document examiners and should be encouraged to use remote document
acquisition and extraction solutions that, according to the commenter,
are continually being improved, including via the use of artificial
intelligence. The commenter stated that such applications could report
fraud risk to the employer and that such applications could mitigate
privacy risks. The commenter suggested that DHS work with NIST to
develop minimum standards for such artificial intelligence-based fraud
detection, while accounting for potential unintentional discrimination
impacts. The commenter stated that a standardized remote mobile
application process could in theory enable DHS to assure all employees
are treated fairly and without discrimination.
Response: Under the alternative procedure announced in the
accompanying notice, DHS will require qualified employers who choose to
use the alternative procedure to conduct a live video interaction with
the employee, among other measures. The employee must first transmit a
copy of the document(s) to the employer and then present the same
document(s) during the live video interaction to ensure that the
documentation reasonably appears genuine and related to the individual.
DHS does not believe it is appropriate at this time to include an
open-ended authorization for the use of mobile applications or
artificial intelligence in this context. DHS will, however, continue to
explore other alternative procedures that could allow employers to
determine if documents reasonably appear to be genuine and relate to
the individual who presents them. DHS may conduct further analysis and
assessments into various technologies to ensure an equivalent level of
security is met. DHS may also solicit further feedback from the public
as appropriate prior to implementing additional alternative procedures
for the Form I-9 document examination process. Any such changes will be
noticed in the Federal Register. At this time, however, DHS is not
requiring employers to use a specific technology as a condition of
implementing the alternative procedure.
5. Utilize Other Forms of Remote Identity Verification
Comment: Commenters asked why remote identity verification systems
used by other government agencies cannot be used for the Form I-9
process. Commenters stated that some federal government agencies
currently use a third-party service to verify the identity of agency
customers. Commenters also suggested that DHS work with state
governments to access facial photos that would help employers verify
the
[[Page 48007]]
identity of the individuals presenting Form I-9 documents.
Response: DHS will continue to explore options to partner with
other entities to ensure effectively implement the employment
verification system consistent with law, while reducing unnecessary
burdens to the extent feasible. As part of E-Verify, DHS currently
leverages its own and other government databases such as those of the
U.S. Department of State to access Employment Authorization Documents
(Form I-766), Permanent Resident Cards (Form I-551) and U.S. passport
and U.S. passport card images. DHS will continue to engage with a
variety of stakeholders such as state motor vehicle administration
representatives, government information specialists, technology
professionals, and privacy and legal experts to understand how best to
address the technical, privacy, and policy issues inherent in sharing
sensitive identity information.
6. DHS Verification Mechanism
Comment: Commenters suggested that DHS create a mechanism for
employers to request DHS's assistance in checking the authenticity of a
document if the employer questions the condition or authenticity of the
document. Commenters stated that DHS should only allow employers to
inspect documents that DHS can authenticate because it would encourage
states to provide DHS access to their identification data and
discourage fraud.
Response: DHS agrees that the Form I-9 process is strengthened when
the authenticity of documents can be verified. E-Verify is a mechanism
by which employers can confirm the validity of most documents because
it electronically compares information from numerous data sources, both
internal and external to DHS, with the information provided on an
employee's Form I-9. Specifically, E-Verify uses biographical records,
such as name and date of birth, to confirm employment eligibility by
determining if the records belong to an individual who is authorized to
work with DHS records. At the same time, E-Verify checks the validity
of U.S. passports, Permanent Resident Cards, and EADs with the issuing
authority, and electronically sends the photograph from the official
record to the employer to compare with the photo on the document
provided by the employee. E-Verify requires all cases to include the
employee's SSN, and E-Verify electronically compares employer-entered
data with SSA records. E-Verify requires that all List B identity
documents presented by employees contain a photo. E-Verify uses data
sources available to DHS to electronically verify the identity
information provided on most state-issued identification cards and
driver's licenses.
H. Regulatory Analyses
1. Executive Order 12866 Analysis
Comment: Commenters stated that the proposed rule failed to include
an adequate economic analysis that effectively illustrated the costs
and benefits of implementing the rule on the affected population, as
well as on the government. Commenters further suggested that the NPRM
failed to consider the costs associated with an alternative procedure
or identify what an alternative option would entail. One commenter
stated that the economic analysis is inconclusive because it addressed
only the additional time needed for an employer to complete a new box
on the Form I-9.\58\ A commenter requested that DHS calculate the time
it takes for employers to locate an authorized representative in the
cities and towns where newly hired employees reside.
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\58\ DHS is adding a box to the Form I-9 that an employer (or an
authorized representative acting on an employer's behalf) would
select to indicate that the employee's documentation was examined
consistent with the alternative procedure(s). DHS is also updating
the instructions to the Form I-9 to provide additional information
about the new box.
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Response: DHS disagrees that it failed to include an adequate
economic analysis of the effects of the NPRM. DHS proposed to authorize
the use of an alternative procedure, see 87 FR at 50789-50790;
specifically sought comment on a range of potential measures to include
in such an alternative procedure, see 87 FR at 50790; and included an
analysis under Executive Orders 12866 and 13563 that included
quantitative estimates related to the proposed form changes and
qualitative discussion of potential alternative procedures, see 87 FR
at 50790-50792. Consistent with the NPRM, this final rule allows an
alternative procedure only when certain conditions are met, including
upon the Secretary's determination that such procedures offer an
equivalent level of security. Also consistent with the NPRM, and
following consideration of the comments received, DHS is announcing an
alternative procedure in a separate Federal Register notice,
concurrently published in today's edition of the Federal Register.
Although not required, DHS has included in this final rule an
analysis of the costs and benefits of the alternative procedure
requirements outlined in the corresponding Federal Register notice. DHS
acknowledges that employers face and consider diverse conditions when
choosing how to inspect new employee documents but expects that
employers who choose to use the alternative procedure will only do so
if the benefits of doing so outweigh the costs. DHS therefore
concludes, although not required to do so, that the alternative
procedure would not have a significant economic impact on a substantial
number of small entities.
2. Regulatory Flexibility Act (RFA)
Comment: A commenter stated that the proposed rule would not
guarantee that physical examination would remain an option to all
employers and, therefore, lacked the assurance that small businesses
would not be required to incur the costs associated with future remote
inspection procedures. A commenter requested that DHS conduct another
regulatory flexibility analysis to accompany any future actions
announcing new alternative procedures because DHS's assertion that the
rule does not have a significant economic impact on a substantial
number of small entities is insufficient without further analysis.
Response: The commenter's premise that this rule does not guarantee
that physical in-person examination would remain an option to all
employers is misplaced. This rule simply provides a framework that
enables DHS to allow an optional alternative to the in-person physical
documentation examination procedures. This rule in no way requires
employers or employees to use an alternative procedure. See 8 CFR
274a.2(b)(1)(ii). DHS reviewed this final rule in accordance with the
Regulatory Flexibility Act (RFA) and determined that it does not impose
any new requirements on employers. Employers may either physically
examine, or otherwise examine pursuant to an authorized alternative
procedure, identity and employment authorization documents to ensure
they reasonably appear to be genuine and relate to the person
presenting them to complete the Form I-9.
Because participation in the alternative procedure is voluntary,
DHS believes this rule will not have a significant economic impact on a
substantial number of small entities and that employers who choose to
use the alternative procedure will only do so if the benefits of doing
so outweigh the costs. Moreover, the RFA analysis presented in the NPRM
and in this final rule comply with the requirements of the RFA. Neither
the APA nor the RFA require additional analysis.
[[Page 48008]]
3. Paperwork Reduction Act (PRA)
Comment: In response to a call for comment regarding the accuracy
of the burden estimate associated with the Form I-9, see 87 FR at
50792, a commenter stated that completing the Form I-9 on a mobile
application can reduce the estimated time for employers from an average
of 21 minutes to approximately one minute. For employees who have their
documentation ready, can read English, and do not require a notary, the
commenter stated this burden is reduced from 17 minutes to
approximately one and a half to four minutes to complete and sign the
Form I-9.
Response: DHS appreciates the suggestion and recognizes that the
burden for employers to complete the Form I-9 may be lower for some
employers and employees. DHS uses average estimates to account for
employers and employees who may require additional time to complete the
Form I-9. For this final rule, DHS is evaluating the impacts of the
changes implemented through this rule, specifically the box added to
the Form I-9 that an employer (or an authorized representative acting
on an employer's behalf) must select to indicate that the employer is
using any available alternative procedure(s), and to make corresponding
edits to the form's instructions. DHS estimates these revisions will
add one minute of burden to the overall Form I-9 burden. To isolate the
impacts of this final rule, DHS is not making any other changes to the
burden estimates in the current Collection of Information, OMB Control
Number 1615-0047. DHS will consider any changes to the overall burden
estimates during the regular renewal of the Collection of Information.
Comment: A commenter stated that the Paperwork Reduction Act (PRA)
request for comment was so broad that it did not reasonably permit a
logical response.
Response: DHS respectfully disagrees. In the NPRM, DHS estimated
that if employers used an alternative procedure, it would take them one
minute to read the revised instructions and mark the new box on the
Form I-9 (if needed). See 87 FR at 50791. DHS also described multiple
potential integrity measures to include in an alternative procedure,
see 87 FR at 50790, and encouraged the public to provide comments on
any burden(s) associated with using an alternative procedure, see 87 FR
at 50791-50792. DHS also posted to the public docket proposed changes
to the Form I-9 and its instructions.\59\ The preamble to the proposed
rule contained an information collection notice in accordance with the
PRA and invited comment on a range of potential changes to the
collection of information. See 87 FR at 50792; 5 CFR 1320.11. DHS also
called commenters' attention to the proposal to add boxes to Sections 2
and 3 of the Form I-9 and to revise the form instructions to refer to
alternative procedures should they be authorized. See 87 FR at 50792.
In addition, DHS asked for comments on the effects of the potential
changes with respect to employers, employees, and DHS, including
comments on the associated burdens or benefits, such as reducing risks
to the integrity of the alternative procedure(s), avoiding
discrimination in the process, and protecting privacy interests. See 87
FR at 50790.
---------------------------------------------------------------------------
\59\ See Table of Changes--Instructions for Form I-9 Employment
Eligibility Verification (Aug. 19, 2022), available at <a href="https://www.regulations.gov/document/ICEB-2021-0010-0012">https://www.regulations.gov/document/ICEB-2021-0010-0012</a> (last visited May
18, 2023); Table of Changes Form I-9 Employment Eligibility
Verification (Aug. 19, 2022), available at <a href="https://www.regulations.gov/document/ICEB-2021-0010-0010">https://www.regulations.gov/document/ICEB-2021-0010-0010</a> (last visited May
18, 2023).
---------------------------------------------------------------------------
I. Out of Scope
1. Out of Scope Generally
Comment: Commenters suggested that DHS take other actions that were
well beyond the scope of the NPRM or DHS's authority, such as
eliminating all Form I-9 requirements; enabling electronic signature
programs to allay concerns about inaccurate signatures; extending the
three-day timeframe for completing all Forms I-9; extending the time
period for employees who have experienced a natural disaster or
emergency that caused their identity or work authorization
documentation to be lost or destroyed; adding certain documents (such
as expired driver's licenses and concealed-carry licenses) to the List
of Acceptable Documents; and clarifying whether the Form I-20,
Certificate of Eligibility for Nonimmigrant Student Status, is a DHS-
issued document that falls under List A.
Response: These comments are outside the scope of the rulemaking
and require no further response.
2. M-274 Handbook for Employers
Comment: Commenters requested clear and concise training materials
when updates are made to the M-274 Handbook for Employers.\60\
Commenters suggested that it would be helpful if all current and
previous Form I-9 ``procedures'' referenced in the M-274 Handbook for
Employers were easily accessible for reference during periodic internal
audits.
---------------------------------------------------------------------------
\60\ See Handbook for Employers M-274, available at <a href="https://www.uscis.gov/i-9">https://www.uscis.gov/i-9</a>-central/form-i-9-resources/handbook-for-employers-
m-274 (last visited May 24, 2023).
---------------------------------------------------------------------------
Response: All instructions and guidance for completing the Form I-
9, including information about the alternative procedure, will be
available on I-9 Central. When any important updates are made to the I-
9 Central website and the M-274, Handbook for Employers, employers
enrolled in E-Verify are informed about the changes when logging into
E-Verify. Currently, DHS does not have a single, collected mechanism
for employers to access previous Form I-9 guidance but will take this
suggestion under consideration as it continues to explore ways to
improve the Form I-9 process.
III. Statutory and Regulatory Requirements
DHS developed this rule after considering numerous statutes and
executive orders related to rulemaking. The below sections summarize
the analyses based on a number of these statutes or executive orders.
A. Administrative Procedure Act
The APA authorizes agencies to dispense with certain rulemaking
procedures under certain circumstances. Although the APA typically
requires a 30-day delayed effective date for substantive rules, 5
U.S.C. 553(d)(1) provides that the 30-day delayed effective date
requirement does not apply to a substantive rule that grants or
recognizes an exemption or relieves a restriction. DHS has determined
that this rule is exempt from the 30-day delayed-effective-date
requirement on that basis. The rule creates a framework under which the
Secretary can, as an optional alternative to the in-person physical
document examination method employers have followed as part of the Form
I-9 process set forth in current regulations, authorize alternative
documentation examination procedures with respect to some or all
employers. Such an optional alternative would only be adopted on an
optional basis and would relieve a restriction. The rule therefore
falls squarely within the Sec. 553(d)(1) exception to the 30-day
delayed effective date requirement.
B. Executive Orders 12866, 13563, and 14094: Regulatory Review
Executive Orders 12866 (``Regulatory Planning and Review''), as
amended by Executive Order 14094 (``Modernizing Regulatory Review''),
and 13563 (``Improving Regulation and Regulatory Review'') direct
agencies to assess the costs and benefits of available regulatory
alternatives and, if regulation is
[[Page 48009]]
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health, and safety
effects, distributive impacts, and equity). Executive Order 13563
emphasizes the importance of quantifying both costs and benefits,
reducing costs, harmonizing rules, and promoting flexibility. The
Office of Management and Budget (OMB) has designated this rule a
significant regulatory action as defined under section 3(f) of E.O.
12866, as amended by E.O. 14094, although not significant under section
3(f)(1) because its annual effects on the economy do not exceed $200
million in any year of the analysis. Accordingly, OMB has reviewed this
rule.
This final rule allows the Secretary to authorize alternative
procedures as part of a pilot program, or upon the Secretary's
determination that such procedures offer an equivalent level of
security for Form I-9 document examination, or as a temporary measure
to address a public health emergency declared by the Secretary of
Health and Human Services pursuant to Section 319 of the Public Health
Service Act or a national emergency declared by the President pursuant
to Sections 201 and 301 of the National Emergencies Act.
In this final rule, DHS responds to the public comments on the
NPRM. DHS is concurrently publishing a corresponding notice in the
Federal Register that describes the framework for the optional
alternative procedure to in-person examination of the Form I-9
documentation. This final rule also addresses the potential impacts
attributed to the alternative procedure announced in the corresponding
Federal Register notice. It also assesses the cost associated with
adding a box on the revised Form I-9 to indicate whether the
alternative procedure was applied. A regulatory assessment follows,
pursuant to OMB Circular A-4. DHS expresses quantified impacts in 2022
dollars.
1. Summary of the Analysis
The rule allows the Secretary to authorize an optional alternative
procedure to the physical examination of the documents that employees
must present to their employers for the completion of the Form I-9.
Without this rule (or without the Secretary's authorization of an
alternative procedure, even if the rule were in place), employers
would, in all situations, be required to physically examine the Form I-
9 documents of an employee in person as was practiced prior to the
COVID-19-related flexibilities. However, with this rule in place and
with the corresponding notice, the Secretary is establishing an
alternative procedure that will allow for remote examination of I-9
documents for qualified employers.
The finalization of this rule is not anticipated to have any
compliance costs because it simply establishes a path for the Secretary
to establish an alternative procedure. Because the Secretary is at the
same time authorizing an alternative procedure, following review of the
comments received, as announced by DHS in a notice concurrently
published in today's edition of the Federal Register, DHS has chosen to
include an analysis of that alternative procedure in this final rule.
Under the alternative procedure, qualified employers will have the
option to apply an alternative method of examining Form I-9 documents
presented by employees to ensure they appear to be genuine and to
relate to the individual. This option will be extended to all new
employees (and those who require reverification) of qualified employers
who are enrolled in E-Verify, whether or not those employees will be
working in a remote setting.
The alternative procedure has the potential to produce cost savings
and benefits to both the public and the government while also imposing
various costs. Employers who may exercise this option are required to
be enrolled in good standing in E-Verify, examine copies of documents
for new employees, conduct a live video interaction with the employee,
undergo training, and maintain records.
Because the alternative procedure is optional for qualifying
employers, DHS anticipates that any employer will likely only make use
of the alternative procedure when it is in their interest to do so--
that is, when the benefits and cost savings exceed the costs.
Therefore, in the absence of any direct and substantial impact of the
alternative procedure on the government or other entities, the
alternative procedure is almost certainly net beneficial. Precisely
quantifying those net benefits, however, would be complex and
inherently uncertain, due to the diversity of employers and the range
of geographic and other circumstances of new employees. In the
discussion below, DHS includes quantitative analysis where feasible.
Over 1.1 million employers are enrolled in E-Verify, with an
estimated 70,565 new employers enrolling each year.\61\ In 2022, E-
Verify employers used the system to check over 48 million new
hires.\62\ DHS believes that employers may be most likely to use the
alternative procedure for employees hired in remote positions or for
those for whom reporting to the office is difficult, although non-
remote employees can participate as well. DHS estimates that
approximately 16 percent of new employee cases created by E-Verify
enrolled employers, or approximately 7.7 million per year, will be
remote positions for which the employer would be motivated to use an
alternative to in-person examination of Form I-9 identification
documents.
---------------------------------------------------------------------------
\61\ USCIS, E-Verify Usage Statistics, available at <a href="https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-usage-statistics">https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-usage-statistics</a> (last updated Jan. 12, 2023).
\62\ Available at <a href="https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance">https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance</a> (last visited March 24, 2022).
---------------------------------------------------------------------------
Allowing for the remote examination of Form I-9 documents will
allow employers to gain operational and administrative efficiencies,
which may result in fewer mistakes in completing the Form I-9 and save
on third-party verification costs. Additionally, employees may also
benefit from the alternative procedure in the form of expanded work
opportunities, travel cost-savings, and supplemental benefits relating
to avoided travel. DHS estimates that if qualified employers use the
authorized procedure for the 16 percent of new employees estimated to
be remote, employers and employees will save between $281.1 million and
$476.6 million in avoided travel time and costs per year. As a result
of these benefits, DHS expects the availability of the alternative
procedure to increase the number of employers who enroll in E-Verify
annually. Employers who enroll in E-Verify to exercise this option will
help to ensure that documents presented by the employee are valid and
unexpired because the system compares their documents against various
government databases.
An employer's voluntary decision to use the alternative procedure
may also result in costs to participating employers and employees.
These costs may include time for familiarization with the requirements
of the alternative procedure; time for employers to read the updated
Form I-9 instructions; time for employees to provide electronic copies
of documents and employers to store them; and time for enrollment and
use of E-Verify for employers who choose to enroll in the program to
use the alternative procedure. ICE estimates that reading the new
checkbox instructions when onboarding each new employee will cost
employers $59.9 million per year and familiarization
[[Page 48010]]
with the requirements of the alternative procedure will cost employers
$3.4 million in the first year.
The implementation of the alternative procedure outlined in the
accompanying Federal Register notice will produce the following
effects, relative to the baseline of how Form I-9 documents were
inspected prior to the COVID-19 flexibilities (see Table 1).\63\ Not
all employers and employees will realize all the potential impacts
described below.
---------------------------------------------------------------------------
\63\ The COVID-19 flexibilities will sunset on July 31, 2023.
See ICE, ICE Updates Form I-9 Requirement Flexibility to Grant
Employers More Time to Comply with Requirements (May 4, 2023),
available at <a href="http://www.ice.gov/news/releases/ice-updates-form-i-9-requirement-flexibility-grant-employers-more-time-comply">www.ice.gov/news/releases/ice-updates-form-i-9-requirement-flexibility-grant-employers-more-time-comply</a> (last
visited May 24, 2023).
Table 1--Summary of Expected Impacts
------------------------------------------------------------------------
Provision Cost Benefit
------------------------------------------------------------------------
Use of Optional Procedures <bullet> Burden of <bullet> Travel time
by E-Verify Participants. time for qualified and cost savings
employers to for employer and
familiarize with employees.
the notice. <bullet> Cost
<bullet> Burden of savings to
time for all employers from
employers to review removing the need
revised I-9 Form for third-party
instructions for verification.
each new hire. <bullet> Improved
<bullet> Employers operational and
who enroll in E- administrative
Verify in order to efficiencies,
use the alternative resulting in fewer
procedure will also mistakes.
incur the following <bullet> Additional
costs:. security from use
<bullet> Burden of of E-Verify (New E-
time for E-Verify Verify enrollees).
enrollment. <bullet> Improved
<bullet> Burden of staffing reach/
time to use E- diversity.
Verify, including <bullet> Potential
time to copy or saving on building
scan Form I-9 space, work
documentation. equipment, etc.
<bullet> Burden for <bullet> Advances
employees to make a equity for workers
copy of for whom it is
identification difficult or
documents and send impossible to
via email or other travel to an
electronic means. office.
<bullet> Potential
increased
employment
opportunities due
to remote
verification
option.
Document Retention.......... <bullet> Burden for <bullet> Improved
qualified employers accuracy of
to collect and/or recordkeeping.
retain copies of <bullet> Provides
identification audit trail to flag
documents suspected
(Employers must fraudulent
retain copies of documents during
employee audits.
documentation with
Form I-9; Form I-9
retention calls for
three years after
the date of hire,
or one year after
the date employment
ends, whichever is
later.) This burden
may also have other
impacts due to
privacy laws in
certain States.
------------------------------------------------------------------------
2. Background, Need, and Assumptions
The use of in-person examination as the sole means of verifying
documents for the Form I-9 has presented several limitations in the
wake of both technological advancements and global events. For example,
one of the primary changes to the U.S. economy that came as a result of
the COVID-19 pandemic was the increased adoption of telework and remote
work arrangements for employees. This was enabled by new technology and
work arrangements which made it possible for employees to work without
physically reporting to an employer worksite on a regular basis. As
these arrangements became more commonplace, so too did the impression
by employers that the burden to coordinate, schedule, and verify
employment eligibility by physically examining I-9 identification
documents in person could be significantly reduced through the means of
an alternative procedure. Such an alternative would no longer require
that new employees expend the time and risk of transporting these
documents for examination, while allowing employers to save on third-
party verification and increase operational efficiencies. As a result,
and for the reasons explained earlier in this preamble, DHS believes it
is prudent to offer an alternative option for examining employees'
identity and employment authorization documents.
This rule amends regulations to allow the Secretary to authorize an
optional alternative for examining the documentation presented by
individuals seeking to establish identity and employment authorization
for the purpose of completing the Form I-9. DHS is announcing an
optional alternative procedure through a Federal Register notice that
will be published concurrently with this final rule and which describes
the procedure.
The measures comprising the alternative procedure will continue to
ensure the integrity of the employment eligibility verification
process. E-Verify provides employers with assurance that certain
employee identity and employment authorization documentation is genuine
by electronically comparing the information with data available to DHS.
Employers choosing to use the alternative procedure also will conduct a
live video interaction with the employee presenting the document(s) to
ensure that the documentation appears reasonably related to the
individual presenting them. The employee must first send a copy of the
document(s) to the employer and then present the same document(s)
during the live video interaction. Providing fraud awareness training
to new E-Verify users provides employers with up-to-date information
about fraud detection and instills an additional safeguard against its
occurrence. The retention of Form I-9 documentation supports DHS
auditors in enforcing Form I-9 requirements for employers who
participate in alternative procedures.
DHS estimates the economic effects of the alternative procedure
will be sustained indefinitely. DHS bases this analysis on the
following information:
(1) The parameters for the alternative procedure are not set nor
determined by this analysis, but rather are set by the Secretary in the
accompanying Federal Register notice.
(2) The alternative procedure described in the Federal Register
notice includes remote examination of copies of acceptable Form I-9
identification documents by E-Verify enrolled employers (or an
authorized representative acting on the employer's behalf) for new
employees and those whose employment eligibility is being reverified to
work in the United States. The term `remote examination' in this
analysis refers to the remote
[[Page 48011]]
examination of digital or original copies of Form I-9 documents that
have been submitted (via mail or online) to employers by employees. The
details for conducting this alternative procedure are described below.
(3) The alternative procedure offers a level of security equivalent
to in-person inspection of the Form I-9 documents. Accordingly, DHS
believes use of the alternative procedure will not materially increase
rates of fraud or error for qualified employers.
(4) Any employer opting to exercise the alternative procedure does
so because they perceive that the gains to efficiency, and time and
materials cost savings of this alternative, outweigh the costs of
enrollment and use of E-Verify and required document retention. Given
the strongly positive public response to the current flexibilities, DHS
expects the majority of employers who desire the benefits of the
alternative procedure are also willing to incur the costs, as
applicable, depicted in the analysis below.
Affected Population
This alternative procedure primarily affects E-Verify enrolled
employers, including employers who enroll in E-Verify in order to take
advantage of the alternative procedure, and their new employees. In
accounting for any costs, cost-savings, and benefits to these affected
populations, DHS utilized the following information:
To estimate the population of E-Verify-enrolled employers, DHS
assessed account data from 2021, and found the total number of E-Verify
enrollees to be 1.1 million. To determine the number of active E-Verify
enrolled employers, DHS eliminated accounts with inactive or slow
hiring and accounts for businesses who had shut down but not closed
their E-Verify accounts. DHS determined that there remained 292,195
employers who have created at least one E-Verify case within the
preceding 12 months. These were considered current ``active'' accounts.
Then, for these active accounts, the current number of total active
users was 496,732.\64\ In addition, DHS reviewed this data across
consecutive years and determined that the average number of newly
enrolled employers was 70,565 per year. DHS will use these figures in
estimating the costs and benefits to employers. The alternative
procedure may prompt additional employers to enroll in E-Verify to take
advantage of the flexibilities provided; however, because the
alternative procedure is new relative to the baseline, and may alter
the trend in usership, ICE is not able to estimate the number of new
enrollees into E-Verify, but rather provides point estimates for the
unit cost faced by new enrollees.
---------------------------------------------------------------------------
\64\ 1.7 users per account = 496,732 total active users/292,195
active employers.
---------------------------------------------------------------------------
Next, DHS examined the number of new employees hired by qualified
employers. Reviewing data provided by E-Verify, DHS determined that the
number of new cases created by employers in fiscal year 2022 was
48,042,413, with each case representing a new hire.\65\ To estimate the
affected employee population for the purposes of this analysis, DHS
assumes employees applying for remote positions are those most likely
to use the alternative procedure, although non-remote employees can
participate in the alternative procedure as well.
---------------------------------------------------------------------------
\65\ Available at <a href="https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance">https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance</a> (last visited June 8, 2023).
---------------------------------------------------------------------------
Accordingly, DHS examined a number of sources that estimated the
percentage of the U.S. workforce that will fully utilize remote work in
2022 and beyond. Data in this regard covers a broad range of contexts
and is often dependent on factors such as the type of industry and
whether employers offer full or part-time remote work. For example,
according to a Business Response Survey conducted between July and
September 2020, 31 percent of establishments increased telework offered
to employees because of the COVID-19 pandemic.\66\ Notably, there was
substantial variation by establishment size and industry. Large
establishments (those with 500 or more employees) were more than twice
as likely to have increased telework than were smaller establishments.
In the sectors of educational services, finance and insurance,
information, and management of companies, more than 50 percent of
establishments increased telework. By contrast, in both agriculture and
accommodation and food services, less than 10 percent of establishments
did so.\67\
---------------------------------------------------------------------------
\66\ U.S. Bureau of Labor Statistics, 2020 Results of the
Business Response Survey, available at <a href="https://www.bls.gov/brs/2020-results.htm">https://www.bls.gov/brs/2020-results.htm</a> (last visited May 3, 2023).
\67\ See U.S. Bureau of Labor Statistics. (n.d.). Telework
during the COVID-19 pandemic: Estimates using the 2021 business
response survey: Monthly labor review. U.S. Bureau of Labor
Statistics, available at <a href="https://www.bls.gov/opub/mlr/2022/article/telework-during-the-covid-19-pandemic.htm">https://www.bls.gov/opub/mlr/2022/article/telework-during-the-covid-19-pandemic.htm</a> (last visited May 24,
2023).
---------------------------------------------------------------------------
Data on economy-wide full-time remote work also vary. Although
there is general agreement that companies are making long-term plans to
embrace remote work to a greater degree than before the COVID-19
pandemic, there is still debate around the extent to which workplaces
will remain remote. Specifically, there is debate regarding whether
firms will mostly utilize a fully remote model, or a hybrid approach
that requires workers to come into the office a few days a week. Using
data from the 2021 Business Response Survey, DHS found that between
July and September 2021, 13 percent of jobs in U.S. private sector
businesses involved teleworking full time and 22 percent involved
teleworking at least some of the time. One-third (33 percent) of
establishments increased telework for some or all employees during the
COVID-19 pandemic.\68\ DHS found another source that tracked remote
work availability from North America's largest 50,000 employers,
projecting that 25 percent of all high paying jobs will be available
remotely by 2022.\69\ Similarly, another source found that as of 2022,
26 percent of U.S. employees were working remotely, and projected that
by 2025, there could be as many as 36.2 million Americans working
remotely.\70\ Another study estimated that fully remote workers would
represent some 27.7 percent of the workforce by 2022.\71\
---------------------------------------------------------------------------
\68\ Ibid.
\69\ 25% of all professional jobs in North America will be
remote by end of . . . (n.d.)., 2022, available at <a href="https://www.theladders.com/press/25-of-all-professional-jobs-in-north-america-will-be-remote-by-end-of-next-year">https://www.theladders.com/press/25-of-all-professional-jobs-in-north-america-will-be-remote-by-end-of-next-year</a> (last visited May 24,
2023).
\70\ 25 trending remote work statistics [2022]: Facts, trends,
and projections. Zippia 25 Trending Remote Work Statistics 2022
Facts Trends and Projections Comments. (n.d.), available at https://
www.zippia.com/advice/remote-work-statistics/
#:~:text=26%25%20of%20U.S.% 20employees%20work,U.S.%
20companies%20are%20fully%20remote (last visited May 24, 2023).
\71\ ``Future Workforce Report 2021, Ozimek, Adam, Upwork,
available at <a href="http://www.upwork.com/research/future-workforce-report">www.upwork.com/research/future-workforce-report</a> (last
visited October 12, 2022).
---------------------------------------------------------------------------
DHS also examined which industries, based on NAICS codes, contained
the highest concentration of remote work employment, and then compared
this information with the NAICS codes of businesses which utilized E-
Verify in 2022.\72\ DHS first reviewed E-Verify usage statistics for
each industry sector (via NAICS codes) to determine which industries
are the most likely to use E-Verify. DHS then utilized BLS Telework
data based on a 2021 Business Response Survey \73\ to determine the
percentage of
[[Page 48012]]
full-time telework positions within each industry sector (via NAICS
code), from which DHS then assigned a percentage of full-time telework
to each E-Verify industry sector. Lastly, DHS utilized BLS Industry-
Specific Occupational Employment and Wage Statistics \74\ to determine
the employee populations for each industry. Table 2 depicts this
information below. Across all hiring sites, DHS found that some 16
percent of positions hired through E-Verify represented positions which
were likely to be full-time telework. This figure likely represents a
lower bound estimate since DHS expects E-Verify users to have a higher
tendency toward hiring full-time telework employees when compared to
other employers because the use of E-Verify provides additional
flexibility to employers who hire full-time telework positions via the
alternative procedure. In addition, DHS recognizes that qualified
employers may use the alternative procedure for positions other than
those that are fully remote in order to, for example, consolidate HR
functions.
---------------------------------------------------------------------------
\72\ See <a href="https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-usage-statistics">https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-usage-statistics</a> (last visited May 24, 2023).
\73\ U.S. Bureau of Labor Statistics. (n.d.). Telework during
the COVID-19 pandemic: Estimates using the 2021 business response
survey: Monthly labor review. U.S. Bureau of Labor Statistics
available at <a href="https://www.bls.gov/opub/mlr/2022/article/telework-during-the-covid-19-pandemic.htm">https://www.bls.gov/opub/mlr/2022/article/telework-during-the-covid-19-pandemic.htm</a> (last visited May 24, 2023).
\74\ U.S. Bureau of Labor Statistics. (2022, March 31). May 2021
National Industry-Specific Occupational Employment and Wage
Estimates. U.S. Bureau of Labor Statistics, available at <a href="https://www.bls.gov/oes/2021/may/oessrci.htm">https://www.bls.gov/oes/2021/may/oessrci.htm</a> (last visited May 24, 2023).
Table 2--Estimated Population of E-Verify Industries With Full-Time Telework (2022)
----------------------------------------------------------------------------------------------------------------
E-Verify top 20 industries nationwide Remote (%) Employee pop. % of pop.
----------------------------------------------------------------------------------------------------------------
541--PROFESSIONAL, SCIENTIFIC, AND TECHNICAL SERVICES........... 30.8 9,606,220 2,958,716
722--FOOD SERVICES AND DRINKING PLACES.......................... 0.7 11,651,910 81,563
561--ADMINISTRATIVE AND SUPPORT SERVICES........................ 30.8 8,904,300 2,742,524
238--SPECIALTY TRADE CONTRACTORS................................ 3.3 4,701,140 155,138
621--AMBULATORY HEALTH CARE SERVICES............................ 7.4 7,747,840 573,340
813--RELIGIOUS, GRANTMAKING, CIVIC, AND PROF. ORG............... 13.4 1,214,290 162,715
624--SOCIAL ASSISTANCE.......................................... 7.4 3,918,800 289,991
611--EDUCATIONAL SERVICES....................................... 20.3 12,488,260 2,535,117
551--MANAGEMENT OF COMPANIES AND ENTERPRISES.................... 30.8 2,540,030 782,329
423--MERCHANT WHOLESALERS, DURABLE GOODS........................ 14.6 5,556,180 811,202
522--CREDIT INTERMEDIATION AND RELATED ACTIVITIES............... 27.5 2,622,670 719,923
811--REPAIR AND MAINTENANCE..................................... 13.4 1,306,120 175,020
236--CONSTRUCTION OF BUILDINGS.................................. 3.3 1,619,240 53,435
519--OTHER INFORMATION SERVICES................................. 52.2 362,800 189,382
448--CLOTHING AND CLOTHING ACCESSORIES STORES................... 3.7 1,031,410 38,162
531--REAL ESTATE................................................ 30.8 1,671,940 514,958
623--NURSING AND RESIDENTIAL CARE FACILITIES.................... 7.4 3,062,530 226,627
452--GENERAL MERCHANDISE STORES................................. 3.7 3,084,830 114,139
446--HEALTH AND PERSONAL CARE STORES............................ 3.7 1,008,900 37,329
-----------------------------------------------
Total....................................................... .............. 84,099,410 13,161,610
Total Percent of Full-Time Remote Employees............. .............. .............. 16
----------------------------------------------------------------------------------------------------------------
Based on the research above, studies show that the percentage of
workers that work remotely is between 13 and 28 percent. Given this
range of estimates, there is uncertainty regarding the precise number
of E-Verify employees that will be remote workers. However, DHS uses
the analysis shown in Table 2 to estimate that as of 2022,
approximately 16 percent of new employee cases created by E-Verify
enrolled employers (or 7,686,786) will be remote positions for which
the employer would be motivated to use an alternative to in-person Form
I-9 identification document inspection. This figure likely represents a
lower bound estimate of the affected population due to the range for
both full and part-time remote work estimates, as well as the various
other compulsions for employers to desire flexibilities to in-person
inspection, but DHS has selected it to avoid inflating the possible
impact of the alternative procedure.
Baseline Analysis
All U.S. employers are required to properly complete Form I-9 for
each individual they hire for employment in the United States. Prior to
COVID-19 flexibilities, employees would attest to their employment
authorization on the form and present (in-person) their employer with
acceptable documents as evidence of identity and employment
authorization. The employer would then physically examine these
documents to determine whether they reasonably appear to be genuine and
relate to the employee, then record the document information on the
employee's Form I-9. Employers would also retain the Form I-9 for a
designated period and make it available for inspection by authorized
government officers. Employers conducting a physical examination of the
documentation presented by employees may choose to keep a copy of
documentation presented by employees when completing the Form I-9, but
they are not required to do so, with the exception of certain documents
required by E-Verify, if the employer participates in E-Verify.\75\
However, if copies of an employee's Form I-9 documents are retained for
reasons unrelated to E-Verify requirements, they must be retained for
all employees, regardless of actual or perceived national origin or
citizenship, or immigration status.\76\
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\75\ E-Verify requirements regarding the copying of
documentation only apply to initial completion of Form I-9 and not
to reverification, since E-Verify cannot be used to complete the
reverification process.
\76\ See Handbook for Employers M-274, section 9.2 Retaining
Copies of Form I-9 Documents, available at <a href="https://www.uscis.gov/i-9">https://www.uscis.gov/i-9</a>-central/handbook-for-employers-m-274/90-retaining-form-i-9/92-
retaining-copies-of-form-i-9-documents (last visited May 26, 2023).
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E-Verify, authorized by Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, is a web-based system through which
employers electronically confirm the employment eligibility of their
employees. In the E-Verify process, employers create cases based on
information taken from an employee's Form I-9. E-Verify then
electronically compares that information to records available to DHS
and the SSA. The employer then receives a response either confirming
the employee's employment eligibility
[[Page 48013]]
or indicating that the employee needs to take further action to
complete the case.
Since its inception, USCIS and the SSA have taken actions believed
to have improved the accuracy of E-Verify and reduced opportunities for
unauthorized workers to use fraudulent documents to gain employment.
USCIS has added tools to help identify fraudulent documents, expanded
the number of databases queried through E-Verify, and instituted
quality control procedures to screen for data entry errors.\77\ The
benefits of using E-Verify have increased over time as the program has
made advancements to improve user experience, reduce errors and
increase the speed and accuracy of the employment eligibility
verification process. This includes validating driver's license data
for most states, providing source system photos for Passports, EADs,
and PRCs, enhancing usability features that help users enter correct
information, streamlining case creation and management to increase
speed and accuracy, and improving overall data integrity and system
compliance. Currently, 98.39 percent of employees are automatically
confirmed as authorized to work (``work authorized'') either instantly
or within 24 hours, requiring no employee or employer action.\78\
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\77\ See Gao-11-146 employment verification: Federal agencies
have taken steps . . . (n.d.), available at <a href="https://www.e-verify.gov/sites/default/files/everify/data/EVerifyGAOReport2010.pdf">https://www.e-verify.gov/sites/default/files/everify/data/EVerifyGAOReport2010.pdf</a>
(last visited May 24, 2023).
\78\ See Verify performance. E. (n.d.), available at <a href="https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance">https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance</a>
(last visited May 24, 2023).
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Alternative Procedure
Under the alternative procedure, only employers (or an authorized
representative acting on the employer's behalf) enrolled in E-Verify,
who completed all required E-Verify training, and who are in good
standing in E-Verify, are qualified to apply alternative procedures.
These ``qualified employers'' may opt to apply alternative procedures.
To conduct alternative procedures, qualified employers will:
1. Examine copies (front and back, if the document is two-sided) of
Form I-9 documents \79\ or an acceptable receipt \80\ to ensure that
the documentation presented reasonably appears to be genuine;
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\79\ The Lists of Acceptable Documents are included with the
Form I-9.
\80\ Occasionally, employees may present a ``receipt'' in place
of a List A, B, or C document. An acceptable receipt is valid for a
specified period of time so an employer may complete Section 2 of
the Form I-9 or conduct reverification on the Form. Employers cannot
accept receipts if employment will last less than three days. An
acceptable receipt may be a receipt for the application to replace a
List A, B, or C document that was lost, stolen, or damaged; the
arrival portion of Form I-94 (Arrival/Departure Record) with a
temporary Form I-551 stamp and a photograph of the individual; the
departure portion of Form I-94 (Arrival/Departure Record) with an
unexpired refugee admission stamp; or an admission code of ``RE.''
See 8 CFR 274a.2(b)(1)(vi) and USCIS, Handbook for Employers, M-274,
available at <a href="https://www.uscis.gov/i-9">https://www.uscis.gov/i-9</a>-central/form-i-9-resources/
handbook-for-employers-m-274/40-completing-section-2-of-form-i-9/43-
acceptable-receipts (last visited May 24, 2023).
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2. Conduct a live video interaction with the employee presenting
the document(s) to ensure that the documentation reasonably appears to
be genuine and related to the individual. The employee must first
transmit a copy of the document(s) to the employer (per Step 1 above)
and then present the same document(s) during the live video
interaction;
3. Indicate on the Form I-9, by completing the corresponding box,
that an alternative procedure was used to examine documentation to
complete Section 2 or for reverification, as applicable; \81\
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\81\ The new edition of the Form I-9 is effective on August 1,
2023. Employers may continue to use the 10/21/2019 edition of the
Form I-9 from August 1, 2023, i.e., until the end of October 31,
2023. As described elsewhere in this rule and accompanying notice,
if during this grace period an employer uses the 10/21/2019 edition
of the Form I-9 for the alternative procedure, the employer must
indicate its use of the alternative procedure by writing
``alternative procedure'' in the Additional Information field in
Section 2. No later than November 1, 2023, employers must begin
using the August 1, 2023 edition of the Form I-9. When using the
August 1, 2023, edition of the Form I-9, an employer must indicate
their use of the alternative procedure by completing the
corresponding box in Section 2 or in the section corresponding to
reverification (which is Supplement B in the August 1, 2023 edition
of Form I-9), as appropriate.
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4. Retain, consistent with applicable regulations,\82\ a clear and
legible copy of the documentation, (front and back, if the
documentation is two-sided), of all documents examined in a paper or
electronic formator in an acceptable combination of such formats, for
as long as the employee works for the employer and for a specified
period after employment has ended; \83\ and
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\82\ See 8 CFR 274a.2(b)(3), (e), (f), (g).
\83\ Employers must retain and store the Form I-9 for three
years after the date of hire, or for one year after employment ends,
whichever is later. See 8 U.S.C. 1324a(b)(3); 8 CFR 274a.2(b)(2).
Additional information for employers and employees about the Form I-
9 is available at <a href="https://www.uscis.gov/i-9">https://www.uscis.gov/i-9</a> (last visited May 24,
2023).
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5. In the event of a Form I-9 audit or investigation by a relevant
federal government official, make available copies of the identity and
employment authorization documentation presented by the employee for
document examination in connection with the employment eligibility
verification process.\84\
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\84\ See 8 U.S.C. 1324a, 1324b; 8 CFR part 274a; 28 CFR part 44.
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Given the hard-to-quantify benefits of physical inspection and lack
of data, DHS is proceeding with an alternative procedure that does not
require the physical examination of acceptable documents, but instead
includes additional requirements to offer an equivalent level of
security, in exercise of the Secretary's authority at 8 CFR
274a.2(b)(1)(ix)(B). The notice describes the framework for an optional
alternative procedure to physical examination of the Form I-9
documentation that offers an equivalent level of security.
3. Benefits of the Alternative Procedure
Use of the alternative procedure is expected to produce benefits
for the public. Employers using the alternative procedure may realize
administrative efficiencies relating to document examination through
reduced travel on the part of HR specialists and employees and the
ability to consolidate and specialize this HR function. This in turn
may result in fewer mistakes in completing the Form I-9. Employees may
also benefit in the form of expanded work opportunities, travel cost-
savings, and supplemental benefits relating to avoided travel. Finally,
employers who choose to enroll in E-Verify in order to exercise this
option will help to ensure that documents presented by the employee are
valid and unexpired by comparing to various government databases.
Operational Efficiency
Use of the alternative procedure may provide convenience to
employers with operations in more than one location. For example, Human
Resources staff who are responsible for verifying the employment
eligibility and identity of all new employees could exercise the option
to work remotely rather than staffing multiple locations or traveling
between locations when new employees are on-boarded. This may enable
employers to benefit from time and cost savings. Additionally,
companies with multiple U.S. locations could consolidate Form I-9
inspection operations and document storage as they will no longer need
to train and maintain in-person staff across multiple locations under
the alternative procedure. Managers and supervisors, rather than an HR
specialist, who may perform document verification simply because they
are on-site would no longer need to spend time performing
[[Page 48014]]
this collateral duty. The time and cost savings from providing an
alternative to in-person verification (e.g., employee travel to a
designated company location, efficiencies in processing documents,
etc.) would be realized by all employers who utilize the alternative
procedure. Because the beneficial outcomes of these new efficiencies
would vary across industries, DHS is unable to quantify these benefits.
Fewer Mistakes
Remote examination will likely mean that employers will spend less
time on corrections, have fewer mistakes, complete the form with
greater efficiency, and ensure a more compliant process.
Equity
The alternative procedure provides qualified employers with the
ability to remotely meet the examination requirements of 8 U.S.C.
1324a(b)(1). Use of the alternative procedure reduces ``time taxes''
and has the potential to promote equity. Such changes will advance
equity in particular for employees for whom traveling to the workplace
may be difficult or impossible. In addition, employers will more easily
be able to provide an inclusive work environment for physically
disabled employees. DHS recognizes the value of these benefits, which
are consistent with the goals of Executive Order 14058, Transforming
Federal Customer Experience and Service Delivery to Rebuild Trust in
Government.
Secondary Benefits of the Alternative Procedure
To the extent that some employers may choose to enroll in E-Verify
in order to use the alternative procedure, a secondary benefit of the
alternative procedure is the additional security benefits to the public
from increased use of the system. E-Verify ensures that documents
presented by the employee are valid and unexpired because the system
compares their documents against various government databases.
An additional secondary effect of the alternative procedure is that
qualified employers will have more flexibility in hiring employees who
work in remote settings, thereby increasing their access to quality
applicants, regardless of their location. Furthermore, the greater
flexibility that employers have in hiring could translate into greater
employment prospects for individuals who cannot easily travel for in-
person inspections of their Form I-9 documents. DHS does not attempt to
quantify these impacts, though it anticipates the impact will be real
and positive.
Finally, a secondary effect of providing an alternative method to
physical examination of identity and employment authorization
documentation is that some qualified employers may expand their remote
position offerings, leading to less demand for the office space
required to house their workforce. According to research conducted by
Global Workplace Analytics, the average business can save up to $
[…truncated; see source link]Indexed from Federal Register on July 25, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.