ICE Proposes Next Steps for Virtual I-9 Document Review

​Employers could have more options when examining I-9 documents presented by new hires during the employment eligibility verification process, according to a proposed rule to be issued by Immigration and Customs Enforcement (ICE) Aug. 18.

A 60-day comment period will follow the issuance of the proposed rule.

One of those options could be the permanent ability to review Form I-9 documents remotely.

The agency said that following advances in technology and new work arrangements brought on by the COVID-19 pandemic, it will explore "alternative options, including making permanent some of the current COVID-19 pandemic-related flexibilities to examine employees' identity and employment authorization documents for the Form I-9."

ICE noted that this proposed rule does not create new flexibilities like permanent remote review, but rather creates the authority that would allow the government to "extend flexibilities, provide alternative options, or conduct a pilot program to further evaluate an alternative procedure option for some or all employers."

Any specific new procedures such as virtual document review would be proposed in a separate rulemaking.

The agency is requesting input on several questions from employers, such as ways to reduce fraud, avoid discrimination in the I-9 process and protect privacy. ICE is also considering various document retention requirements applicable to remote examination, possible fraudulent document detection or anti-discrimination training requirements for employers, and whether or not only employers enrolled in E-Verify will be able to use the alternative procedures.

A practice that started during the pandemic, virtual reviews of the Form I-9 can help employers that are hiring remote workers. Many employers want a remote review option, but they also are calling for better remote examination methods.

Employers must complete an I-9 form for all workers to verify employment eligibility. During the pandemic, the Department of Homeland Security waived requirements that employers inspect documents in person in workplaces that were operating remotely, and those employers have been allowed to use alternatives like videoconferencing, fax or e-mail. That flexibility was most recently extended through the end of October.

"Not surprisingly, many SHRM members strongly desire to have a permanent virtual I-9 option," said Emily Dickens, chief of staff and head of government affairs for the Society for Human Resource Management (SHRM). "Not only have the burdens and hazards of in-person I-9 preparation grown, but technology has advanced to a point where the believed benefits of in-person I-9 preparation are now equaled or exceeded by remote or virtual methods. Moreover, a remote I-9 preparation option would transform the entire onboarding process, enabling the process to be accomplished remotely."