DHS proposal on virtual I-9 exam nears

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The Department of Homeland Security (DHS) announced plans to release a proposed rule this month allowing virtual document review options for Form I-9 review “in certain circumstances or with respect to of certain employers.

The proposal is currently being reviewed by the White House Office of Information and Regulatory Affairs, the final step before publication in the Federal Register.

A practice that began during the pandemic, virtual Form I-9 exams can help employers hiring remote workers. Many employers want a remote exam option, but they are also asking for better remote exam methods.

Employers must complete a Form I-9 for all workers to verify employment eligibility. During the pandemic, DHS waived the requirement for employers to inspect documents in person at workplaces that were operating remotely, and those employers were allowed to use alternatives like video conferencing, fax or email. This flexibility was recently extended until the end of October.

Last fall, DHS issued a request for public comment on alternatives to physically examining documents during the I-9 review process. According to the department, virtual alternatives could reduce the burden on employers while maintaining the integrity of the employment verification process.

“It’s no surprise that many SHRM members are eager to have a permanent virtual I-9 option,” said Emily Dickens, chief of staff and government affairs officer for the Society for Human Resource Management (SHRM). “Not only have the burdens and dangers of in-person I-9 preparation increased, but technology has advanced to a point where the purported benefits of in-person I-9 preparation are now matched or surpassed by remote methods or Additionally, a remote I-9 prep option would transform the entire onboarding process, allowing the process to be accomplished remotely.”

Dickens added that even before the COVID-19 pandemic, many SHRM members indicated that they would greatly benefit from virtual alternatives to supplement I-9. “It is often impossible for remote employees to travel many miles to a company or agent location for the sole purpose of presenting documents to complete an I-9,” she said. declared.

And while the use of third-party authorized representatives has been the common recourse for the remote exam, it “required significant effort on the part of employers to get the form prepared remotely and to ensure that the preparer, who is generally unfamiliar with the myriad of I-9 compliance requirements, has not made mistakes,” she said.

The modernization of the employment verification system, which includes the provision of permanent virtual examination options, among other structural changes to the form and the process, “is an important and promising step to meet the needs of the future. of the American workplace and take advantage of the vast transformation of information technology” since Form I-9 requirements were first introduced in 1986, Dickens said.

Scott Corley, executive director of Compete America, a coalition advocating high-skilled immigration reform, also argues that remote document review is a permanent option for employers, in addition to an in-person review option. .

“Companies and their employees would benefit from the flexibility of choosing to complete the entire Form I-9 process electronically with no requirement for a follow-up physical exam,” he said.

“Remote document review has improved the onboarding experience for employers and their employees by introducing operational efficiencies. Employers have found the remote process to be much more efficient and cost-effective than the traditional in-person procedure. , which required face-to-face meetings with every new hire and existing employee who needed re-verification, … and employees were able to complete their onboarding process more quickly and easily from home.”

Patrick Duffy, director of global labor relations and labor policy at Santa Clara, Calif.-based computer chipmaker Intel, said the biggest foreseeable challenge in reviewing documents Remote is the method used for transmitting documents to the employer.

During the few months that Intel was conducting remote document reviews in early 2020, newly hired employees were emailing documents to Intel. “Email is not an ideal solution, however,” he said. “While new recruits were required to password-protect documents, a more secure online transmission process would be required for longer-term use. Given the sensitive and private nature of I-9-related documents , we suggest that DHS implement basic document transmission security requirements such as access management controls and data encryption.”

Duffy said Intel will likely continue to use in-person review, “but welcomes the addition of a remote document review option. A remote option provides greater flexibility and would allow Intel to organize their remote worker onboarding process as they see fit without having to rely on authorized representatives. We believe the onboarding experience will be enhanced by being able to easily transition from orientation to the I-9 exam without workers having to leave their workspace at home.

Faxing documents is also problematic, according to Alice Jacobsohn, director of government relations at the American Payroll Association, based in San Antonio, Texas. “Certain virtual communication technologies are not conducive to Form I-9 document examination compliance,” she said. “These technologies have limitations that could prevent an employer from determining whether a document is genuine. For example, a document faxed to an employer does not allow the employer to see an original document. At best, a faxed copy could show that ‘a document does not reasonably relate to the individual.’

Screen sharing is also not an efficient way to review documents, Jacobsohn said. “If using a virtual platform such as Zoom, Webex, or FaceTime, both the employee and the employer representative must have their cameras open and working. The employee must hold the documents in front of the camera lens. “

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