DHS Seeks Public Comment on Proposed Pilot Program to Allow Remote I-9 Document Examination by Certain Non-E-Verify Employers

DHS is soliciting comments from the public on a proposed pilot program that will allow certain employers not enrolled in E-Verify to use remote I-9 document inspection procedures similar to those recently authorized for qualifying E-Verify employers. DHS proposes to limit participation in the pilot program to employers with 500 or fewer employees. Employers interested in participating in the pilot program will be required to apply for and be accepted into the program and will be subject to certain conditions of participation. Comments on the proposal are due by October 2, 2023.

The issue

Pursuant to its new regulatory authority to authorize alternatives to in-person physical examination of I-9 identity and work authorization documentation, the U.S. Department of Homeland Security (DHS) published a notice in the Federal Register on August 3, seeking public comment on a proposed pilot program that would allow certain employers not enrolled in E-Verify to use remote I-9 documentation examination procedures similar to those recently authorized for qualifying E-Verify employers.

Proposed eligibility criteria for the pilot

Under the DHS proposal, employers enrolled in E-Verify would not be eligible for the pilot program because they may qualify to use the recently launched program allowing remote I-9 document inspection by E-Verify employers. In addition, DHS proposes to limit the pilot program to employers with 500 or fewer employees.

Employers interested in participating in the pilot would be required to complete a formal application. DHS has posted a proposed draft of the application for public comment. 

Proposed conditions for the pilot

DHS is considering several restrictions and conditions on the pilot program. Some of these conditions mirror those applicable to the alternative remote I-9 inspection process for qualified E-Verify employers, including prohibiting discriminatory application of the remote inspection procedure and requiring employers to conduct an in-person physical examination of I-9 documentation if the employee declines to participate in the alternative remote procedure.

Other proposed restrictions and limitations on the pilot program include the following:

• Employers may be prohibited from using the pilot remote I-9 documentation examination procedures for employees who work onsite or in a hybrid capacity, or they may be provided a timeframe, following the initial remote document examination, during which to physically examine the employee’s Form I-9 documents and compare such documents to the copies on file.
• Employers may be required to undertake special measures to improve the security of the pilot procedure, such as fraudulent document detection and anti-discrimination training.

Proposed remote I-9 document examination procedure for the pilot

The proposed process for remote inspection of I-9 documentation under the pilot program would largely mirror the process used under the alternative process for qualified E-Verify employers.

Specifically, when completing I-9s using the proposed pilot process, participating employers would need to undertake the following steps within three business days of the employee’s first day of employment:

• Have the employee transmit to the employer a copy of the Form I-9 identity and work authorization document(s) they wish to present. If a document is two-sided, a copy of both the front and back must be transmitted.
• Examine copies of the Form I-9 document(s), or an acceptable receipt, to ensure that the documentation presented reasonably appears to be genuine. If a document is two-sided, a copy of the front and back must be examined.
• Conduct a live video interaction with the employee presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the individual. The employee must present the document(s) that were transmitted in copy to the employer.
• Indicate on the Form I-9 that the employer is participating in the pilot program by entering “Initial Pilot” in the “Additional Information” field in Section 2, and check the box on the new version of the I-9 Form corresponding to use of an alternative procedure.
• Retain a clear and legible copy of the documentation presented. If the document is two-sided, a copy of the front and back must be retained. In the event of a government audit or investigation, the employer must make available copies of the I-9 documents presented by the employee.

DHS information gathering in connection with the proposed pilot

DHS plans to gather information from the pilot program to identify the potential effects of the specific pilot procedures on the security of the employment verification system. The agency states that it will evaluate a range of potential effects on system integrity, such as error or fraud rates and discrimination.

Under the proposal, DHS’s U.S. Immigration Customs & Enforcement unit (ICE) would request feedback from participating employers up to twice a year, to collect data such as number of new hires, number of employees who requested to have a physical inspection, and any challenges associated with the pilot procedure.

In addition, like all employers, pilot participants would be subject to audits and investigations, and DHS plans to monitor and evaluate information from audits to assess any measurable impacts on system integrity between the employers that use the pilot program’s alternative procedure and those that continue with physical document inspection.

What’s next

Public comments on the proposed pilot program and associated draft pilot participant application form are due by October 2. Employers interested in submitting comments to DHS on the proposal are invited to contact their designated immigration counsel.

After DHS reviews comments received from the public, the agency will determine whether to proceed with the pilot and, if so, will issue a subsequent notice announcing the terms of the pilot.