[Federal Register Volume 86, Number 204 (Tuesday, October 26, 2021)]
[Notices]
[Pages 59183-59185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23260]


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DEPARTMENT OF HOMELAND SECURITY

U.S. Citizenship and Immigration Services

[CIS No. 2702-21; DHS Docket No. USCIS-2021-0022]


Remote Document Examination for Form I-9, Employment Eligibility 
Verification: Request for Public Input

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Request for public input.

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SUMMARY: The Department of Homeland Security (DHS) is seeking input 
from the public regarding document examination practices associated 
with the Form I-9, Employment Eligibility Verification. DHS solicits 
this input to better understand employers' and employees' experiences 
with this process and to examine the impacts of remote document 
examination conducted during the Coronavirus disease (COVID-19) 
pandemic. DHS especially seeks to understand the potential costs and 
benefits of allowing for future remote document examination 
flexibilities.

DATES: Written comments are requested on or before December 27, 2021. 
Late-filed comments will be considered to the extent practicable.

ADDRESSES: You may submit comments, identified by docket number USCIS-
2021-0022, through the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. 
Comments submitted in a manner other than the one listed above, 
including emails or letters sent to DHS or USCIS officials, may not be 
reviewed by DHS in connection with this notice. Please note that DHS 
and USCIS cannot accept any comments that are hand delivered or 
couriered. In addition, USCIS cannot accept comments contained on any 
form of digital media storage devices, such as CDs/DVDs and USB drives. 
USCIS is not accepting mailed comments at this time. If you cannot 
submit your comment by using http://www.regulations.gov, please contact 
Samantha Deshommes, Chief, Regulatory Coordination Division, Office of 
Policy and Strategy, U.S. Citizenship and Immigration Services, 
Department of Homeland Security, by telephone at 240-721-3000 for 
alternate submission instructions.

FOR FURTHER INFORMATION CONTACT: Oscar Lujan, Associate Chief for 
Policy and Guidance, Verification Division, Immigration Records and 
Identity Services Directorate, U.S. Citizenship and Immigration 
Services, DHS, 5900 Capital Gateway Drive, Camp Springs, MD 20746; 
telephone 240-721-3000 (this is not a toll-free number). Individuals 
with hearing or speech impairments may access the telephone numbers 
above via TTY by calling the toll-free Federal Information Relay 
Service at 1-877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION:

[[Page 59184]]

I. Public Participation

    Interested persons are invited to comment on this notice by 
submitting written data, views, or arguments using the method 
identified in the ADDRESSES section.
    Instructions: All submissions must include the docket number for 
this notice. Comments received may be posted without change to http://www.regulations.gov including any personal information provided.
    Docket: For access to the docket to read background documents or 
comments, go to http://www.regulations.gov.

II. Background

    For over three decades, federal law has required that every 
employer must attest on a form established by regulation that it has 
verified that the employee is authorized for employment in the United 
States.\1\ The Form I-9 is used to verify the employee's identity and 
employment eligibility as required by 8 U.S.C. 1324a(b), which calls 
for the employer to ``examin[e]'' documentation provided by the 
individual and then, if the documentation reasonably appears on its 
face to be genuine, attest that ``it has verified that the individual 
is not an unauthorized alien by examining the document[ation]'' 
provided. 8 CFR 274a.2(b)(1)(ii)(A) requires that every employer 
``[p]hysically examine'' and then attest that the documents appear to 
be genuine and to relate to the person presenting them. If an employee 
presents a document that does not reasonably appear to be genuine or to 
relate to him or her, the employer must reject that document and may 
ask the employee to present other acceptable documents that satisfy the 
requirements of Form I-9.
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    \1\ Immigration Reform and Control Act of 1986, Public Law 99-
603, 100 Stat. 3359, Part A, 101 (Nov. 6, 1986), codified at 8 
U.S.C. 1324a(b), 8 CFR 274a.2(b)(1).
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    COVID-19 was declared a National Emergency on March 13, 2020, and 
on March 20, 2020, DHS announced \2\ that it would defer the physical 
presence requirements associated with Form I-9. DHS permitted employers 
with employees taking physical proximity precautions due to COVID-19 to 
examine their employees' identity and employment eligibility documents 
remotely (for example, over video link, fax, or email, etc.). Then, 
within three business days after the termination of the National 
Emergency, DHS would require employers to obtain, inspect, and retain 
copies of the documents and enter ``COVID-19'' in Section 2 as the 
reason for the physical inspection delay. Prior to April 1, 2021, these 
flexibilities only applied to employers and workplaces operating 
exclusively remotely. If employees were physically present at a work 
location, DHS offered no exception to the in-person verification of 
identity and employment eligibility documentation. These flexibilities 
were initially allowed for a period of 60 days and were subsequently 
extended several times.
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    \2\ U.S. Immigration and Customs Enforcement, ``DHS announces 
flexibility in requirements related to Form I-9 compliance,'' 
https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance (last visited Sept. 24, 
2021).
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    DHS then issued guidance on March 31, 2021,\3\ that specified: (a) 
The requirement that employers inspect employees' Form I-9 identity and 
employment eligibility documentation in-person applies only to those 
employees who physically report to work at a company location on any 
regular, consistent, or predictable basis; (b) employees hired on or 
after April 1, 2021, who work exclusively in a remote setting due to 
COVID-19-related precautions, are temporarily exempt from the physical 
inspection requirements until they undertake non-remote employment on a 
regular, consistent, or predictable basis, or the extension of the 
flexibilities related to such requirements is terminated, whichever is 
earlier; and (c) the flexibilities do not preclude employers from 
commencing, in their discretion, the in-person verification of identity 
and employment eligibility documentation for employees who were hired 
on or after March 20, 2020, and presented such documents for remote 
inspection in reliance on the flexibilities first announced in March 
2020.
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    \3\ U.S. Immigration and Customs Enforcement, ``DHS announces 
flexibility in requirements related to Form I-9 compliance,'' 
https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance (last visited Sept. 24, 
2021).
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    On August 31, 2021, DHS announced that the document examination 
flexibilities established on March 20, 2020, were extended until 
December 31, 2021.\4\
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    \4\ U.S. Immigration and Customs Enforcement, ``ICE announces 
extension to new employee guidance to I-9 compliance flexibility,'' 
https://www.ice.gov/news/releases/ice-announces-extension-new-employee-guidance-i-9-compliance-flexibility-1 (last visited Sept. 
24, 2021).
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III. Request for Input

A. Importance of Public Input

    DHS is now seeking to explore alternative options to physical 
document examination that offer an equivalent or higher level of 
security for identity and employment eligibility verification 
purposes.\5\ Members of the public may have unique insight about ways 
employers may conduct remote document examination related to the Form 
I-9. DHS is interested in obtaining input from the public about its 
experiences with remote document examination that can be used to inform 
and improve DHS policies and processes.
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    \5\ Form I-9 related provisions and requirements are found in 
the Immigration Reform and Control Act of 1986, codified at sections 
274A (8 U.S.C. 1324a), 274B (8 U.S.C. 1324b) and 274C (8 U.S.C. 
1324c) of the Immigration and Nationality Act (INA), as well as in 
implementing regulations and guidance at 8 CFR 270, 274a, 8 CFR 
parts 44 and 68, and in the Handbook for Employers (M-274) https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274.
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B. Maximizing the Value of Public Input

    This notice contains a list of questions, the answers to which will 
assist DHS in identifying processes that may reduce burdens on the 
public, save costs and/or time, and/or improve efficiency. DHS 
encourages public comment on these questions and seeks any other 
information or data commenters believe are relevant to this request.
    DHS particularly encourages comments from employers, as well as 
employer organizations such as trade groups or associations, employment 
recruitment and referral organizations, organizations specializing in 
employee onboarding, employees, researchers and policy experts, and 
other members of the public. DHS also encourages comments from small 
businesses, small nonprofits, and small governmental jurisdictions with 
a population of fewer than 50,000.
    DHS is interested in responses to the specific questions below, as 
well as the general concepts and topics identified. DHS is particularly 
interested in responses describing employees' and employers' specific 
experiences and input related to document examination practices. To 
better categorize responses, DHS encourages respondents to identify 
their role in the employment eligibility process (for example, 
employer, employer association, employee), and if the respondent is an 
employer, to indicate its approximate organization size by number of 
employees, industry type, and whether the employer is currently 
enrolled in E-Verify.

C. List of Questions for Commenters

    The following non-exhaustive list of questions is meant to assist 
commenters in formulating comments, and is not

[[Page 59185]]

intended to restrict the feedback that commenters may provide:
Experiences With Pandemic-Related Document Examination Flexibilities
    1. Did you or your organization use the flexibilities for remote 
document examination for the Form I-9 since March 20, 2020? If not, 
why? If so, what was your experience using the flexibilities? How did 
small employers use these flexibilities?
    2. If the employer performed any remote document examinations since 
March 20, 2020:
    a. What were your experiences with internal technical capabilities 
to perform remote document examination (for example, video quality, 
image quality, document retention, etc.)?
    b. What were your experiences related to employee-provided digital 
images or copies of documents for retention?
    c. What were your experiences related to employees' remote 
completion and submission of Section 1 of the Form I-9?
    d. What processes and/or technology solutions were typically used 
to remotely examine documents (for example, over video link, fax, or 
email, etc.)? Was the process always the same, or did it vary based on 
circumstances? What, if any, internal policies were put into place 
related to remote document examination practices?
    e. Were any remotely examined documents rejected because they did 
not relate to the individual presenting them or did not appear to be 
genuine? Were there any instances in which a document was accepted 
during remote examination, but upon subsequent physical inspection, the 
employer determined that the document did not appear to be genuine or 
did not relate to the individual presenting it? If so, what actions did 
the employer take?
    3. If the employer performed any remote document examinations since 
March 20, 2020, and is enrolled in E-Verify:
    a. Were any documents examined remotely for which E-Verify returned 
an Employment Authorized result, but upon subsequent physical 
examination, the employer determined that the documents did not appear 
to be genuine or relate to the individual presenting them? If so, what 
actions did the employer take?
    b. What, if any, challenges did employers experience in 
interpreting and following the requirements of participation in the E-
Verify program \6\ during the period of remote document examination?
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    \6\ E-Verify Memorandum of Understanding: https://www.e-verify.gov/sites/default/files/everify/memos/MOUforEVerifyEmployer.pdf.
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    4. What other changes did employers make to Form I-9 document 
inspection procedures during the pandemic? Did employers increase use 
of authorized representatives?
Considerations for Future Remote Document Examination Procedures
    1. What are the direct and indirect burdens on employees and 
employers related to the physical document examination requirement for 
Form I-9?
    2. What are the direct and indirect burdens on employees and 
employers related to the use of authorized representatives to meet the 
physical document examination requirement?
    3. What would be the direct and indirect benefits of offering a 
permanent option for remote document examination of Form I-9 identity 
and work eligibility documents (for example, allowing some employers to 
centralize Form I-9 processing)?
    4. What would be the direct and indirect costs of offering a 
permanent option for remote document examination of Form I-9 identity 
and work eligibility documents (for example, training or technology 
acquisition costs)?
    5. What would be the direct and indirect burdens on small employers 
for the items listed above? What are the unique challenges faced by 
small employers with this process and these flexibilities? What kinds 
of alternatives should be provided for small employers in adopting 
these flexibilities?
    6. If employers were allowed a permanent option for remote document 
examination, what types of employers and/or employees do you anticipate 
would be interested in participating or not interested in 
participating?
    7. How might participation requirements as a condition of these 
flexibilities, such as required enrollment in E-Verify, document or 
image quality or retention requirements, or required completion of 
training offered by DHS, impact an employer's desire or ability to 
utilize such a flexibility?
    8. What would be the costs or benefits associated with making 
enrollment in E-Verify a condition of flexibilities for you, as an 
employer?
    9. If DHS were to permanently allow an option for remote document 
examination, what technical considerations would participating 
employers have to consider?
    10. What impact would a permanent option for remote document 
examination have on employees and employers, if any? If these 
flexibilities are adopted, are there requirements DHS should adopt to 
ensure employee rights related to document examination are protected?
    11. Are there 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? What actions by DHS would encourage 
the commercial development of such solutions?
    12. Should DHS consider changes to the current lists of acceptable 
documents on the Form I-9, in the context of remote document 
examination? What would be the costs and benefits of such changes?
    13. Are there any other factors DHS should consider related to 
remote document examination?

IV. Review of Public Input

    This notice is issued solely for information and program-planning 
purposes. Public input provided in response to this notice does not 
bind DHS to any further actions, to include publishing a formal 
response or agreement to initiate a recommended change. DHS will 
consider the feedback and make changes or process improvements at its 
sole discretion. Commenting on this notice is not a substitute for 
commenting on other ongoing DHS rulemaking efforts. To be considered as 
part of a specific rulemaking effort, comments on DHS rules must be 
received during the comment period identified in the relevant 
rulemaking published in the Federal Register, and in the manner 
specified therein.

Ur M. Jaddou,
Director, U.S. Citizenship and Immigration Services, Department of 
Homeland Security.
[FR Doc. 2021-23260 Filed 10-25-21; 8:45 am]
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