Will post-COVID virtual and remote I-9 verification become a reality?
As of March 2020, USCIS allows virtual, remote I-9 screening when all employees work remotely due to COVID, or when a new employee, after April 1, 2021, works remotely due to COVID. Many employers as well as immigration attorneys are calling for virtual and remote I-9 verification, regardless of remote work. It seems the Department of Homeland Security (DHS) has heard the calls for this much-needed modernization of I-9 compliance.
On August 18, 2022, DHS proposed the possibility of remote virtual verification even if employees are not working remotely. DHS has sought public comment on this. If this proposal is implemented, it could be a major change and improvement in the world of I-9 compliance.
In its request for comment, DHS said it was considering several remote virtual verification ideas, including a pilot program; a case where the Secretary of DHS authorizes it due to a public health emergency, such as COVID; or as a permanent program. Many employers favor a permanent option, and this might be the most likely to be implemented as long as employers meet certain criteria. Possible criteria under consideration are employer enrollment and use of E-Verify, participation in a DHS online course on detecting fraudulent documents, and retention of copies of documents (the latter criterion is not required by federal law but is normally considered an option).
Additionally, DHS has discussed preludes from employers due to a fine, settlement, or conviction related to Form I-9 practices. This criterion appears to be sensitive to many factors, such as the type of violations committed by an employer to receive a fine or settlement—for example., material violations of paperwork, or knowingly hiring undocumented workers? There is a big difference between these two types of violations, and it could be argued that an employer committing material paperwork violations should not be excluded from this program.
Also, the amount of the fine could be a consideration. An employer fined $10,000, for example, might fare better than one paying $100,000. Thus, an employer paying a fine of $100,000 could be excluded, but not an employer paying a fine of $10,000. Another factor to consider is when the settlement or fine occurred. For example, a recent fine could be considered grounds for exclusion, while a fine issued in the distant past would not. As usual, the devil will be in the details.
Lawyers and the general public have until October 17, 2022 to file their comments. Subsequently, DHS will draft the proposed settlement. Then, this regulation will be submitted to the general public for comments. Given the usual pace of government rulemaking, DHS is not expected to issue a final rule on this issue until late 2023.