September 07, 2022

DHS May Make Form I-9 Flexibility a Fixture

You've Reached Your
Free Article Limit This Month
Register for free to get unlimited access to all OnPractice content.
Register Now

The Department of Homeland Security (DHS) announced it is considering changes to the Form I-9 documentation examination procedures. As human resources teams know, the remote workplace that became common during the COVID-19 pandemic made an already complicated I-9 process a logistical nightmare. With the U.S. government's declaration of a national emergency due to the COVID-19 pandemic, DHS and Immigration and Customs Enforcement (ICE) announced certain flexibilities in March 2020 that suspended the requirement of in-person review of I-9 documents when a company was operating remotely due to COVID-19. Those flexibilities have been extended numerous times and are currently set to expire Oct. 31, 2022.

While DHS says it is considering making these temporary flexibilities permanent, the Notice of Proposed Rule Making (NPRM) published last month does not seek to do so. Instead, the NPRM seeks to validate the authority of the DHS secretary to enact flexibilities, offer alternative options, and/or implement a pilot program to evaluate existing and additional alternative I-9 procedures for some or all employers. DHS recognizes that more and more employers are utilizing telework and remote work for their employees and that requiring in-person review of I-9 documents is no longer consistent with work patterns of many businesses.

Some of the more notable possible changes to the I-9 process described in the NPRM include requiring employers to note on the Form I-9 which of the alternative procedures they used; requiring employers to retain copies of I-9 documents; requiring online training on fraudulent document and/or anti-discrimination training for employers who wish to utilize the alternative procedures; and limiting eligibility to use the alternative procedures to employers that utilize E-Verify, the government's online employment verification system.

Comments to the NPRM are due on or before Oct. 17, 2022.

ALM expressly disclaims any express or implied warranty regarding the OnPractice Content, including any implied warranty that the OnPractice Content is accurate, has been corrected or is otherwise free from errors.

More From Greenberg Traurig

CFPB Says 'Show Me The (Consumer Unfriendly) Fine Print'

By Timothy A. Butler Greenberg Traurig January 25 , 2023

On Jan. 11, the Consumer Financial Protection Bureau (CFPB) released a proposed rule that would require certain nonbank financial companies subject to its supervisory jurisdiction to submit annual reports about their use of terms and conditions that attempt to waive or limit consumer rights and protections.

FINRA Files Amendments to Proposed Rule Change That Will Allow Remote Inspections

By William B. Mack Greenberg Traurig January 25 , 2023

Last summer, the Financial Regulatory Authority (FINRA) proposed a rule change to its supervision rule (FINRA Rule 3110) to allow member firms to conduct remote inspections of some or all branch offices and locations.

5 Trends to Watch: 2023 Venture Capital

By Chinh H. Pham Greenberg Traurig January 20 , 2023

The current macroeconomic environment, coupled with record increases in valuations over the last several years, is creating an increase in down-rounds, re-pricings, and recapitalizations.

More From Immigration Law

5 Trends to Watch in 2023 in Texas Health Care

By Joseph F. Coniglio Greenberg Traurig January 19 , 2023

Observers believe that the COVID-19-related public health emergency (PHE) will be extended until April of 2023.

5 Trends to Watch: 2023 Financial Regulatory & Compliance

By Richard M. Cutshall Greenberg Traurig January 17 , 2023

The U.S. Securities and Exchange Commission (SEC) proposed 35 new rules and adopted 17 rules in 2022 alone.

USCIS Announces Final Phase of Premium Processing Expansion for EB-1 and EB-2 Form I-140 Petitions and Future Expansion for F-1 Students Seeking OPT and Certain Student and Exchange Visitors

By Kate Kalmykov Greenberg Traurig January 13 , 2023

On Jan. 12, 2023, USCIS announced its plan to expand premium processing service availability for certain immigrant and non-immigrant benefits in 2023.

Featured Stories