Making Remote Form I-9 Review Permanent


Emptech's founder, Jeff Aleixo


Jeffrey Aleixo

Department of Homeland Security Form I-9 Compliance

Form I-9, Employment Eligibility Verification, is a crucial part of immigration compliance, but meeting the required requirements is a complex undertaking and often exposes employers to significant risk. However, the document examination process may become easier in the future due to the possible permanent continuation of remote Form I-9 review.

Department of Homeland Security Request for Public Input on Permanent Remote Form I-9 Review

Employers in the United States need to complete Form I-9 for all newly-hired employees and inspect acceptable documents to verify their identity and employment authorization. However, the pandemic caused mass transitions to remote work and complicated this requirement. After COVID-19 was declared a national emergency, the Department of Homeland Security (DHS) announced it would permit employers to examine employees’ identity and eligibility documents remotely. 

As a result, companies that have been operating remotely have been able to inspect Section 2, Form I-9 documents virtually, over a video link, or by fax or email. Later on, for companies continuing to operate at least partially remote due to COVID-19, DHS clarified that in-person inspection applied only to employees who report to work on a regular, consistent, or predictable basis. 

DHS has extended remote Form I-9 review multiple times and on November 18, 2020, announced that the flexibility for employers would run through the end of the year. Now, the agency is seeking input on making remote Form I-9 review permanent. Through the Request for Information, DHS is asking employers, different organizations, and other members of the public for comments. 

DHS’ request for input listed considerations for future remote document examination procedures, including:

  • Direct and indirect burdens on employees and employers related to the physical document examination requirement for Form I-9,
  • Direct and indirect burdens on employees and employers related to the use of authorized representatives to meet the physical document examination requirement,
  • Direct and indirect benefits of offering a permanent option for remote Form I-9 review of identity and work eligibility documents,
  • Direct and indirect costs of offering a permanent option for remote Form I-9 review,
  • Unique challenges faced by small employers with this process and types of alternatives that should be provided for them in adopting these flexibilities,
  • Types of employers and employees expected to be interested in participating,
  • Impact of participation requirements on an employer’s desire or ability to utilize remote Form I-9 review,
  • Costs or benefits associated with making enrollment in E-Verify a condition of remote Form I-9 review,
  • Technical considerations for participating employers,
  • Impact of a permanent option for remote document examination on employees and employers and possible requirements that DHS should adopt to ensure the protection of employee rights related to document examination,
  • Solutions that would enable employers to verify that documents that are examined remotely appear to be genuine and to relate to the individual presenting them,
  • Possible changes to the current lists of acceptable documents on the Form I-9, in the context of remote Form I-9 review, and
  • Any other factors DHS should consider related to remote document examination.

The public can submit comments on the proposed rules by visiting Regulations.gov and searching for docket number USCIS-2021-0022. The deadline for submitting written comments is December 27, 2021, allowing employers to express their views and make an impact on remote Form I-9 review becoming permanent.

Learn how to easily achieve compliance with employment eligibility requirements and changing rules while maximizing efficiency and minimizing mistakes.

Extended Validity of Certain Expired Green Cards

The United States Citizenship and Immigration Services (USCIS) announced the extension of time during which certain receipt notices, or Forms I-797, can be used to show evidence of status for conditional permanent residents with pending applications. This change was introduced due to significant delays in immigration processing.

Consequently, USCIS will issue I-797 receipt notices that serve as evidence of continued status for 24 months past the expiration date on an individual’s conditional permanent resident card, or green card. So far, USCIS provided a one-year extension period for conditional green cards and in 2018 they extended this period from 12 to 18 months.

Presenting expired green cards is not acceptable for Form I-9 purposes. However, USCIS allows employers to do so if an employee also presents an I-797 receipt notice for the I-751 or I-829 application, as outlined in the Handbook for Employers (M-274).

Employers should always remember to allow employees to choose which documents to present to establish identity and employment eligibility. If they presented an expired green card in combination with I-797, they can show an alternative List A or List C document during the reverification process.

Keeping up with Form I-9 Compliance

A permanent remote Form I-9 review could simplify the process of complying with Form I-9 complexities. However, they should remain careful as the trend of increased employer audits and site visits may continue as businesses reopen and employees return to work. Therefore, employers need to establish a compliance program to be able to produce accurate documentation, keep up with all government regulations, and avoid fines and penalties.

To achieve this effectively, companies should turn to technology solutions and overcome the challenge of managing From I-9s collected over a number of employees and years, especially during this ever-changing climate. Thus, manual tasks can be replaced with a solution that scans, digitizes, error-checks, and stores every Form I-9 for complete compliance, so employers can rest assured that everything is in order in case of an ICE audit.

Use an efficient way to help manage completion and storage of the Form I-9 and transforms manual procedures into an automated online process with electronic forms and documents, e-signatures, and audit trails.
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