ICE Proposed Rule Offers Employers Alternatives for Physical Review of Documents for Form I-9

Hector Galeano

On August 19, 2022, U.S. Immigration and Customs Enforcement (ICE) announced that it would be creating a rule with possible alternatives to the document review process of Section 2 documents for Form I-9, Employment Eligibility Verification.1 The proposed rule would allow the Secretary of Homeland Security to extend COVID-19 pandemic-related flexibilities, provide alternative options for document review, or to develop a pilot program to evaluate alternative procedures.2

Current I-9 Requirements

Form I-9 is completed by both new hires and employers for any employees hired after November 6, 1986. It is intended to verify identity and employment eligibility. As part of proper completion of Form I-9, employers must review a suitable combination of original documents. Employers can review a List A document3 or a combination of a List B and C documents. Under existing Form I-9 requirements, employers are required to review original acceptable List A, or List B and C documents. For some employers compliance with this rule has proven difficult; specifically for employers with a remote or telecommuting workforce. Under existing rules, employers will often need to source an authorized representative to complete Section 2 of the I-9 and to review original documents. I-9 familiarity for these authorized representatives varies from who routinely completes Form I-9 to a new hire’s friend or family member who has never seen the Form I-9 before. An employer is liable for any technical or substantive errors by their authorized representative in the completion of Form I-9.

On March 20, 2020, and due largely to the COVID-19 pandemic, employers saw a significant departure from the traditional Form I-9 document review requirements. At that time the Department of Homeland Security (DHS) announced flexibility due to the pandemic that allowed employers to inspect Section 2 documents remotely (over video link, fax or email, etc.) for those employees hired after March 20, 2020.4 This rule has been extended multiple times with the most recent extension set to expire on October 31, 2022.5 This rule, however, requires physical inspection of the original documents once the employees physically report to work at a company location on any regular, consistent or predictable basis. Additionally, employers must inspect the original documents once the employer resumes normal operations and this must be done within three business days of resumption of normal operations.  Notably, the rule only applies to employers operating remotely due to COVID-19. The additional flexibility does not apply to employers who already have employees physically present at a work location. The rule is also temporary and would end once the COVID-19 national emergency is deemed over.

What Changes Could Mean to Employers

The proposed rule changes could provide employers long-term permanent alternatives to physically reviewing documents. The rule could change how certain employers centralize completion of the I-9. This may make the administrative burden less onerous for those employers who have a large workforce in different locations, those with remote employees, or telecommuting employees. Employers would no longer worry about finding a local authorized representative and could centralize preparation of Form I-9 by representatives properly trained on I-9s. These designated internal representatives could review all new hire I-9 documents remotely and reduce the need for employers to find a competent authorized representative at some remote worksite. The benefit to employers may be more tangible because many of the fines arising out of the I-9 process result from paperwork violations. Indeed, many of the I-9 errors or omissions occur at the local level by representatives unfamiliar with I-9s.

The proposed rule does not yet specify an actual rule change to the document review process but rather gives the Secretary of DHS significant discretion in authorizing these changes. This means that we may see several proposals in the coming months. The proposed rule is open for comment until October 17, 2022 and implementation of a final rule could follow as quickly as 30 days after that.

Should you have any questions regarding the I-9 process or this proposed rule, please reach out to your regular Saul Ewing LLP attorney. 


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