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New Proposed Regulations for I-9 – Be Sure to Submit Comments!

The Department of Homeland Security (DHS) proposed a new rule which allows optional alternatives to the physical document examination associated with employment eligibility verification (Form I-9) at Vol.87, No.159 of Federal Register dated 08/18/2022. This rule is only in the proposed regulation stage, and readers are encouraged to submit their comments on the proposed regulation.

Form I-9 was first introduced in the year 1986 as part of the Immigration Reform and Control Act of 1986 (ICRA). Form I-9 requires an employer to verify an employee’s identity and U.S. employment authorization (both citizens and noncitizens) within three business days of the employees first day of duty. An employer must verify employees work eligibility when they are hired, reverified, or rehired. Form I-9 also requires an employer to physically verify the documents used by the employee and retain copy of those documents consistent with the procedures. The purpose of the physical verification of documents is preventing document fraud.

The notice of proposed rulemaking (NPRM), lays out a framework DHS could implement as part of a pilot program. Per the NPRM, the Secretary of Homeland Security may be authorized to respond to emergencies similar to COVID-19 pandemic. Further, these regulations would formalize DHS flexibility to make some of the COVID-19 flexibilities permanent.

The NPRM could allow I-9 regulations to modernize along with the increase in fully remote work that has increased since 2020. The remote document examination option that has been present during the COVID-19 pandemic– allowing the employer or authorized representative to inspect employment eligibility documents remotely via video link, fax, or email, reduces burden on employers and employees has allowed employers to keep up with I-9 verification in safe and remote ways. The possible requirements per the NPRM like training on fraudulent document detection and/or anti-discrimination for employers and the like would incur some burden but the benefits would outweigh the burden/costs.

Reddy & Neumann, P.C. encourages all interested parties to make comments to the proposed regulation by October 17, 2022. This can be done at https://www.regulations.gov/document/ICEB-2021-0010-0001.

By: Steven Brown & Hari Subhash

Steven Brown is a Partner at Reddy & Neumann, P.C. where he works in the Non-immigrant visa department and leads the Litigation Team. His practice covers all phases of the non-immigration visa process including filing H-1B, L-1, E-3, H-4, and H-4 EAD petitions. In the last two years, Steven has successfully handled over 1,000 non-immigrant visa petitions including filing petitions, responding to any necessary Requests for Evidence, and drafting motions and appeals. He has also become a key resource for F-1 students that seek guidance on properly complying with the F-1 visa regulations and any OPT or CPT issues they may have. Additionally, Steven holds a weekly conference call for companies that are part of one of the largest organizations for IT Services companies in America.