[Federal Register Volume 87, Number 159 (Thursday, August 18, 2022)]
[Proposed Rules]
[Pages 50786-50794]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17737]


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 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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  Federal Register / Vol. 87, No. 159 / Thursday, August 18, 2022 / 
Proposed Rules  

[[Page 50786]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 274a

[DHS Docket No. ICEB 2021-0010]
RIN 1653-AA86


Optional Alternatives to the Physical Document Examination 
Associated With Employment Eligibility Verification (Form I-9)

AGENCY: U.S. Immigration and Customs Enforcement (ICE), Department of 
Homeland Security (DHS).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: DHS is proposing to allow for alternative procedures for 
documents required by the Form I-9, Employment Eligibility 
Verification. This proposed rule would create a framework under which 
the Secretary of Homeland Security (the Secretary) could authorize 
alternative options for document examination procedures with respect to 
some or all employers. Such procedures could be implemented as part of 
a pilot program, or upon the Secretary's determination that such 
procedures offer an equivalent level of security, or as a temporary 
measure to address a public health emergency declared by the Secretary 
of Health and Human Services pursuant to Section 319 of the Public 
Health Service Act, or a national emergency declared by the President 
pursuant to Sections 201 and 301 of the National Emergencies Act. This 
proposed rule would allow employers (or agents acting on an employer's 
behalf) optional alternatives for examining the documentation presented 
by individuals seeking to establish identity and employment 
authorization for purposes of completing the Form I-9, Employment 
Eligibility Verification.

DATES: Electronic comments must be submitted on or before October 17, 
2022.

ADDRESSES: You may submit comments on the entirety of this proposed 
rule, identified by Docket No. ICEB-2021-0010, through the following 
method:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the website instructions to submit comments.
    Comments submitted in a manner other than the Federal eRulemaking 
Portal, including emails or letters sent to DHS, will not be considered 
comments, and will not receive a response from DHS. Please note that 
DHS cannot accept any hand delivered or couriered comments, nor any 
comments contained on any form of digital media storage devices, such 
as CDs/DVDs and USB drives. If you cannot submit your material using 
https://www.regulations.gov, contact the person in the FOR FURTHER 
INFORMATION CONTACT section of this document for alternate 
instructions.

FOR FURTHER INFORMATION CONTACT: Sharon Hageman, Deputy Assistant 
Director, Office of Regulatory Affairs and Policy, U.S. Immigration and 
Customs Enforcement, Department of Homeland Security, 500 12th Street 
SW, Washington, DC 20536. Telephone 202-732-6960 (not a toll-free 
number).

SUPPLEMENTARY INFORMATION:

I. Public Participation

    DHS encourages all interested parties to participate in this 
rulemaking by submitting data, views, comments, and arguments on all 
aspects of this proposed rule. Comments providing the most assistance 
to DHS will reference a specific portion of the proposed rule, explain 
the reason for any recommended change, and include the data, 
information, or authority that supports the recommended change. See the 
ADDRESSES section above for information on where to submit comments.

A. Submitting Comments

    To submit your comments online, go to https://www.regulations.gov 
and insert ``ICEB 2021-0010'' in the ``Search'' box. Click on the 
``Comment'' box and type your comments in the text box provided. When 
you are satisfied with your comments, follow the prompts, and then 
click ``Submit Comment.''
    DHS will post comments to the federal e-Rulemaking portal at 
https://www.regulations.gov and will include any personal information 
you provide. Therefore, submitting this information makes it public. 
You may wish to consider limiting the amount of personal information 
that you provide in any voluntary public comment submission you make to 
DHS. DHS may withhold information provided in comments from public 
viewing that it determines is offensive. For more information, please 
read the ``Privacy & Security Notice,'' via the link in the footer of 
https://www.regulations.gov. DHS will consider all comments and 
materials received during the comment period and may change this rule 
based on your comments.

B. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to https://www.regulations.gov and 
insert ``ICEB 2021-0010'' in the ``Search'' box. Next, click on 
``Dockets,'' then on the name of the rule, and finally on ``Browse All 
Comments.'' Individuals without internet access can request alternate 
arrangements for viewing comments and documents related to this 
rulemaking (see the FOR FURTHER INFORMATION CONTACT section of this 
document). You may also sign-up on the online docket for email alerts 
whenever comments are posted, or a final rule is published.

II. Abbreviations

Abbreviation Amplification

CFR Code of Federal Regulations
COVID 19 Coronavirus disease 2019
DHS Department of Homeland Security
ICE U.S. Immigration and Customs Enforcement
INA Immigration and Nationality Act
IRCA Immigration Reform and Control Act of 1986
NEPA National Environmental Policy Act
OMB Office of Management and Budget
OPM Office of Personnel Management
PRA Paperwork Reduction Act
U.S. United States
U.S.C. United States Code
USCIS U.S. Citizenship and Immigration Services

III. Background and Purpose

A. Legal Authority

    In 1986, Congress reformed U.S. immigration laws by passing the 
Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603, 
to amend the Immigration and Nationality Act (INA), which appears in 
Title 8 of the U.S. Code. Among other reforms, the

[[Page 50787]]

IRCA amendments made it unlawful for employers to knowingly hire 
individuals who were not eligible to work in the United States and 
established a system for verifying the identity and U.S. employment 
authorization of all employees hired after November 6, 1986. IRCA 
imposed employer sanctions, codified in section 274A of the Immigration 
and Nationality Act (INA), 8 U.S.C. 1324a, including financial, 
criminal, and other penalties for those who failed to verify the 
identity and the employment eligibility of all new employees, or those 
who knowingly hired, recruited, or referred for a fee, or continued to 
employ ``unauthorized aliens'' after November 6, 1986. Among other 
goals, IRCA sought to ensure that only eligible individuals were hired 
for employment in the United States, and that employers did not 
discriminate against any employee on the basis of national origin or 
citizenship status.\1\
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    \1\ See 8 U.S.C. 1324a and 8 U.S.C. 1324b.
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    IRCA prompted the creation of the Form I-9, Employment Eligibility 
Verification, which was designated as the means of documenting that the 
employer verified an employee's identity and U.S. employment 
authorization. See 8 CFR 274a.2. Employers must complete the Form I-9 
to document verification of the identity and employment authorization 
of each employee (both citizen and noncitizen) hired after November 6, 
1986 to work in the United States.\2\ If an employee's employment 
authorization expires, the employer must reverify the employee's 
employment authorization to ensure the employee continues to be 
employment-authorized in the United States.\3\ If an employee is 
rehired, the employer must also ensure that the employee is still 
authorized to work in the United States.\4\ The employer must retain 
the Form I-9 in a paper, electronic, or microfilm or microfiche format, 
or in an acceptable combination of such formats, for as long as the 
individual works for the employer and for a specified period after the 
individual's employment has ended.\5\
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    \2\ In the Commonwealth of the Northern Mariana Islands, 
employers complete the Form I-9 for each new employee (both citizen 
and noncitizen) hired after November 27, 2011. Additional 
information about completing the Form I-9 is available at https://www.uscis.gov/i-9-central.
    \3\ 8 CFR 274a.2(b)(1)(vii).
    \4\ 8 CFR 274a.2(c).
    \5\ Employers must retain and store Forms I-9 for three years 
after the date of hire, or for one year after employment is 
terminated, whichever is later. Additional information for employers 
and employees about the Form I-9 is available at https://www.uscis.gov/i-9.
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    The Homeland Security Act of 2002, Public Law 107-296 moved the 
responsibility for overseeing the examination of documentation 
evidencing identity and employment authorization from the former U.S. 
Immigration and Naturalization Service, which was a component of the 
U.S. Department of Justice, to the newly formed DHS, specifically to 
U.S. Citizenship and Immigration Services (USCIS) and Immigration and 
Customs Enforcement (ICE). USCIS issues most employment authorization 
documentation to noncitizens and administers an electronic employment 
eligibility verification program called E-Verify,\6\ while ICE monitors 
and enforces compliance with the requirements of the Form I-9. The 
Immigrant and Employee Rights Section of the U.S. Department of 
Justice's Civil Rights Division enforces the investigates and 
prosecutes employment anti-discrimination provision of the INA, 8 
U.S.C. 1324b.
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    \6\ See Learn More About E-Verify, E-Verify, https://www.e-verify.gov/ (last visited May 6, 2022).
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B. Background

    Within three business days after the first day of employment (i.e., 
the first day of work in exchange for wages or other remuneration), 
employers must physically examine the documentation presented by new 
employees from the Lists of Acceptable Documents (i.e., ``Form I-9 
documents''),\7\ or an acceptable receipt,\8\ to ensure that the 
presented documentation appears to be genuine and to relate to the 
individual who presents them. See 8 CFR 274a.2(b)(1)(ii)(A), 
(b)(1)(vi). Employers must then complete Section 2, ``Employer Review 
and Verification,'' of the Form I-9. See 8 CFR 274a.2(b)(1)(ii)(B). If 
reverification is required, the employee or referred individual must 
present a document that shows continued employment authorization or a 
new grant of employment authorization. See 8 CFR 274a.2(b)(1)(vii). If 
the employer rehires an individual for whom it had previously completed 
the Form I-9 and complied with the document verification requirements, 
the employer may inspect the original Form I-9. See 8 CFR 274a.2(c). If 
the rehired employee's employment authorization on the original Form I-
9 had expired when the individual was rehired, the employer must 
conduct reverification. See 8 CFR 274a.2(c).
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    \7\ The Lists of Acceptable Documents are included with the Form 
I-9.
    \8\ Occasionally, employees may present a ``receipt'' in place 
of a List A, B, or C document. An acceptable receipt is valid for a 
short period of time so an employer can complete Section 2 or 
Section 3 (reverification) of Form I-9, Employment Eligibility 
Verification. Employers cannot accept receipts if employment will 
last less than 3 days. An acceptable receipt may be a receipt for 
the application to replace a List A, B, or C document that was lost, 
stolen, or damaged; the arrival portion of Form I-94 (Arrival/
Departure Record) with a temporary Form I-551 stamp and a photograph 
of the individual; the departure portion of Form I-94 (Arrival/
Departure Record) with an unexpired refugee admission stamp; or an 
admission code of ``RE.'' See USCIS, Handbook for Employers, M-274, 
https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-
employers-m-274/40-completing-section-2-of-form-i-9/43-acceptable-
receipts (last visited June 21, 2022).
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BILLING CODE 9111-28-P

[[Page 50788]]

[GRAPHIC] [TIFF OMITTED] TP18AU22.000

BILLING CODE 9111-28-C
    Due to the physical proximity precautions implemented by employers 
related to combating the coronavirus disease 2019 (COVID-19) pandemic, 
on March 20, 2020, ICE posted an announcement on its website that 
stated DHS would defer the physical examination requirements associated 
with the Form I-9.\9\ Under that guidance, an employer, or an 
authorized representative acting on the employer's behalf, could 
inspect Form I-9 documents remotely (e.g., over video link, fax, or 
email) within three business days of the employee's first day of 
employment. If inspecting Form I-9 documents remotely, the employer was 
required to obtain, inspect, and retain copies of the documents within 
three business days. Such employers were further directed to enter 
COVID-19 as the reason for the physical examination delay in the 
Section 2 ``Additional Information'' field, of the Form I-9. Under the 
guidance, the employer would be required, once normal operations 
resumed, to physically examine the documents and enter the notation 
``documents physically examined'' along with the date of inspection in 
the Section 2 ``Additional Information'' field. DHS initially allowed 
these provisions to be in place for a period of 60 days from the date 
of the notice (or within three business days after the termination of 
the national emergency, whichever came first).
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    \9\ ICE, DHS announces flexibility in requirements related to 
Form I-9 compliance (Effective Apr. 1, 2021), https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance (last updated Mar. 31, 2021).
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    This guidance applied only to employers and workplaces that were 
operating remotely. Specifically, the guidance stated: ``[i]f there are 
employees physically present at a work location, no exceptions are 
being implemented at this time for in-person verification of identity 
and employment eligibility documentation for Form I-9, Employment 
Eligibility Verification. However, if newly hired employees or existing 
employees are subject to COVID-19 quarantine or lockdown protocols, DHS 
will evaluate this on a case-by-case basis.''
    ICE periodically extended this announcement as the COVID-19 
national emergency \10\ continued. On March 31, 2021, ICE updated the 
announcement made on March 20, 2020, stating that, as of April 1, 2021, 
only those employees who physically reported to work at a company 
location on any regular, consistent, or

[[Page 50789]]

predictable basis needed to undergo an in-person examination of their 
Form I-9 identity and employment eligibility documentation.\11\ 
Further, the announcement indicated that employees who were hired on or 
after April 1, 2021, and who worked exclusively in a remote setting due 
to COVID-19-related precautions, were temporarily exempted from the 
physical examination of their Form I-9 documents until they undertook 
non-remote employment on a regular, consistent, or predictable basis, 
or the extension of the flexibilities related to such requirements was 
terminated, whichever occurred earlier.\12\ Subsequently, due to the 
continuation of the COVID-19 pandemic, ICE extended these flexibilities 
several times: the latest announcement, issued on April 25, 2022, 
extended the temporary flexibilities until October 31, 2022.\13\
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    \10\ See 85 FR 15337 (Mar. 18, 2020).
    \11\ See ``ICE announces extension, new employee guidance to I-9 
compliance flexibility,'' U.S. Immigration and Customs Enforcement 
(Effective Apr. 1, 2021), https://www.ice.gov/news/releases/ice-announces-extension-new-employee-guidance-i-9-compliance-flexibility.
    \12\ See USCIS, DHS Extends Form I-9 Flexibility (Effective Mar. 
31, 2021), https://www.uscis.gov/i-9-central/covid-19-form-i-9-
related-news/dhs-extends-form-i-9-requirement-flexibility-effective-
mar-31-2021 (last updated Mar. 31, 2021); ICE announces extension, 
new employee guidance to I-9 compliance flexibility, https://www.ice.gov/news/releases/ice-announces-extension-new-employee-guidance-i-9-compliance-flexibility (last updated Apr. 1, 2021).
    \13\ See DHS Extends Form I-9 Requirement Flexibility (Effective 
May 1, 2022), https://www.uscis.gov/i-9-central/covid-19-form-i-9-
related-news/dhs-extends-form-i-9-requirement-flexibility-effective-
may-1-2022 (last updated Apr. 25, 2022); ICE announces extension to 
I-9 compliance flexibility, https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-3 (last updated Apr. 
25, 2022).
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    On October 26, 2021, USCIS published a notice in the Federal 
Register seeking input from the public regarding document examination 
practices associated with the Form I-9.\14\ Of the 315 public comments 
received, the vast majority supported a remote document examination 
option, stating that such an option reduces burdens on employers and 
employees. Some commenters raised concerns about document fraud, while 
others recommended measures to mitigate such risk. DHS thanks the 
public for its comments and encourages commenters to participate in 
this rulemaking by submitting comments in response to the specific 
proposal contained in this proposed rule, as well as the alternatives 
presented. As noted below, this proposed rule would not directly 
authorize remote document examination, but it would create a framework 
under which DHS could pilot various options, respond to emergencies 
similar to the COVID-19 pandemic, or implement permanent flexibilities 
upon a specific determination as to level of security, including, but 
not limited to, fraud risk.
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    \14\ 86 FR 59183.
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C. Need for the Proposed Change

    DHS recognizes that more employers may have adopted telework and 
remote work arrangements because of the COVID-19 pandemic. For 
instance, the Pew Research Center conducted a study to better 
understand how the work experiences of employed adults had changed 
during the pandemic. That survey found that, among workers who said 
their job responsibilities could mainly be done from home, most said 
that they rarely or never teleworked before the pandemic. However, in 
October 2020, 71 percent of those workers were working from home all or 
most of the time.\15\ In addition, on March 11, 2021, the U.S. Bureau 
of Labor Statistics reported that nearly 1 in 4 people (22.7 percent) 
employed in February 2021 teleworked or worked at home for pay because 
of the COVID-19 pandemic.\16\ This rapid shift to telework and remote 
work was possible because of advances in technology and workplace 
modernization, such as cloud-based solutions that allowed employees to 
work despite not physically reporting to a company location on a 
regular basis. For instance, the study conducted by the Pew Research 
Center found that, of those workers doing their jobs from home all or 
most of the time, about three-quarters or more said it was easy to have 
the technology and equipment they needed to do their job and more than 
half said they wanted to keep working from home after the pandemic 
subsided, if given a choice to do so.\17\ Another study by the Pew 
Research Center found that the impetus for working from home has 
shifted considerably since 2020, with more workers saying they are 
working from home today by choice rather than necessity. For instance, 
among workers with a workplace outside of their home, 61 percent now 
say they are choosing not to go into their physical workplace, while 
only 38 percent say they are working from home because their physical 
workplace is closed. Earlier in the pandemic, 64 percent said they were 
working from home because their office was closed.\18\ For these 
reasons, DHS anticipates that work patterns for many employees may be 
permanently affected.
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    \15\ See Pew Research Center, How the Coronavirus Outbreak Has--
and Hasn't--Changed the Way Americans Work (Dec. 9, 2020), https://www.pewresearch.org/social-trends/2020/12/09/how-the-coronavirus-outbreak-has-and-hasnt-changed-the-way-americans-work/ (last visited 
Feb. 14, 2022).
    \16\ See U.S. Bureau of labor Statistics, Mar. 11, 2021, The 
Economics Daily, https://www.bls.gov/opub/ted/2021/workers-ages-25-to-54-more-likely-to-telework-due-to-covid-19-in-february-2021.htm 
(last visited Oct. 20, 2021).
    \17\ See Pew Research Center, How the Coronavirus Outbreak Has--
and Hasn't--Changed the Way Americans Work (Dec. 9, 2020), https://www.pewresearch.org/social-trends/2020/12/09/how-the-coronavirus-outbreak-has-and-hasnt-changed-the-way-americans-work/ (last visited 
Apr. 1, 2022).
    \18\ See Pew Research Center, COVID-19 Pandemic Continues To 
Reshape Work in America, (Feb. 16, 2022), https://www.pewresearch.org/social-trends/2022/02/16/covid-19-pandemic-continues-to-reshape-work-in-america/ (last visited Apr. 6, 2022).
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    In light of these advances in technology and new work arrangements, 
DHS is exploring alternative options, including making permanent some 
of the current COVID-19 pandemic-related flexibilities to examine 
employees' identity and employment authorization documents for the Form 
I-9. This rule would not create such alternatives but would instead 
formalize the authority for the Secretary to extend flexibilities, 
provide alternative options, or conduct a pilot program to further 
evaluate an alternative procedure option (in addition to the procedures 
set forth in regulations) for some or all employers, regardless of 
whether their employees physically report to work at a company 
location. DHS would introduce any such alternative procedure in a 
future Federal Register notice that would include the parameters for 
the alternative procedures, any applicable conditions for 
participation, and for how long the alternative procedures would be 
available.

D. Proposed Changes

    To allow DHS to evaluate and implement options that provide 
employers with more flexibilities, and in recognition of many 
employees' changing work environments and advances in technology, DHS 
proposes to revise the language currently in 8 CFR 274a.2(b) and (c). 
This proposed revision includes additional language in paragraphs 
(b)(1)(ii)(A), (b)(1)(vii), and (c)(1)(ii) stating that an alternative 
procedure may be authorized by the Secretary for examining the 
documentation presented by individuals to establish identity \19\ and/
or employment authorization when completing Form I-9 when they are

[[Page 50790]]

hired, reverified, or rehired. Moreover, a new paragraph (b)(1)(ix) 
would be added to state that, in lieu of the physical examination 
procedure described in paragraphs (b)(1)(ii)(A), (b)(1)(vii), and 
(c)(1)(ii), the Secretary may authorize optional alternative 
documentation examination procedures with respect to some or all 
employers, and that such procedures may be adopted as part of a pilot 
program, upon the Secretary's determination that such procedures offer 
an equivalent level of security, or as a temporary measure to address a 
public health emergency declared by the Secretary of Health and Human 
Services or a national emergency declared by the President. DHS plans 
to introduce any such alternative procedure in a future Federal 
Register notice.
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    \19\ This proposed rule relates to the physical presentation or 
inspection of documents for the Form I-9 only, and not to other 
regulatory programs or requirements that may require physical 
presentation or inspection of documents.
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E. Proposed Form I-9 Changes and Potential Conditions for Alternative 
Procedures

    DHS expects that any future alternative procedures that may be 
authorized by the Secretary for examining the documentation presented 
by individuals to establish identity and/or employment authorization 
for the Form I-9 when they are hired, have their employment 
authorization reverified, or rehired, may require the employer (or 
agents acting on the employer's behalf) to indicate on the Form I-9 
whether documentation was examined consistent with such alternative 
procedure(s). Therefore, DHS is proposing changes to the Form I-9 and 
its accompanying instructions that would allow employers to indicate 
that alternative procedures were used (should such alternative 
procedures be authorized in the future). Specifically, DHS is proposing 
adding a box to the Form I-9 that, if an alternative procedure were 
used for either Section 2 or Section 3, an employer (or an agent acting 
on an employer's behalf) would select to indicate that the employee's 
documentation was examined consistent with the alternative 
procedure(s). DHS is also proposing to update the instructions to the 
Form I-9 to explain the new box. These Form I-9 changes would allow 
ICE, when conducting an audit, to know that the employer (or an agent 
acting on an employer's behalf) has represented that the employer 
examined (and, if required by the procedure, retained) documentation 
consistent with the alternative procedure(s). These changes would help 
ICE enforce and monitor compliance with the provisions of the 
alternative procedure(s) referenced above. DHS has provided estimates 
of the resulting potential paperwork burden changes related to the Form 
I-9 in Section F, Paperwork Reduction Act--Collection of Information.
    DHS is considering other requirements that may impact this 
collection of information for any alternative procedure that may be 
authorized by the Secretary for examining the documentation presented 
by individuals to establish identity and employment authorization for 
the Form I-9. DHS invites comment on a range of potential changes to 
the collection of information.
    Specifically, DHS welcomes comments on the effects of the below 
potential changes with respect to employers, employees, and DHS, 
including comments on the associated burdens or benefits, such as 
reducing risks to the integrity of the alternative procedure(s), 
avoiding discrimination in the process, and protecting privacy 
interests:
    1. DHS is considering various document retention requirements. For 
instance, DHS could impose some or all of the document retention 
requirements applicable to the remote examination process during the 
flexibilities period discussed above, which required employers to 
retain copies of the documentation employees chose to present. DHS is 
also considering requiring employers to retain copies of any documents 
presented remotely via video, fax, or email. DHS requests comments on 
any cost(s) or increased burden(s) for employers to retain such 
documentation, as well as comments on the benefits, costs, or any 
burdens for employees related to such document retention.
    2. DHS is considering adding a fraudulent document detection and/or 
an anti-discrimination training requirement for employers. For example, 
the employer or authorized representative who uses the alternative 
procedure may be required to take a 30-60-minute online training on 
detecting fraudulent documents remotely and avoiding discrimination in 
the process. DHS requests comments on any cost(s) or increased 
burden(s) for employers to complete such training, as well as comments 
on the benefits, costs, or any burdens for employees related to such 
training.
    3. DHS is considering a variety of options with respect to the 
population that will be eligible to utilize the alternative 
procedure(s), and requests comments on such options and on how they may 
affect the collection of information. (For example, one potential 
option for consideration might be to limit the eligible population to 
those employers who have enrolled, and are participants in good 
standing, in E-Verify; another potential option for consideration might 
be to place some limits on employers who have been the subject of a 
fine, settlement, or conviction related to employment eligibility 
verification practices.) DHS requests comments on all relevant options 
with respect to the population that will be eligible to use the 
alternative procedure(s).

IV. Statutory and Regulatory Requirements

    DHS developed this proposed rule after considering numerous 
statutes and Executive orders related to rulemaking. The below sections 
summarize the analyses based on a number of these statutes or Executive 
orders.

A. Executive Orders 12866 and 13563: Regulatory Review

    Executive Orders 12866 (``Regulatory Planning and Review'') and 
13563 (``Improving Regulation and Regulatory Review'') direct agencies 
to assess the costs and benefits of available regulatory alternatives 
and, if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health, and safety effects, distributive impacts, and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, reducing costs, harmonizing rules, and promoting 
flexibility. The Office of Management and Budget (OMB) has designated 
this rule a significant regulatory action, although not economically 
significant, under section 3(f) of Executive Order 12866. Accordingly, 
this rule has been reviewed by OMB.
    This proposed rule would allow the Secretary to authorize 
alternative options for document examination procedures with respect to 
some or all employers when they are hired, have their employment 
authorization reverified, or rehired, as part of a pilot program, upon 
the Secretary's determination that such procedures offer an equivalent 
level of security, or as a temporary measure to address a public health 
emergency declared by the Secretary of Health and Human Services or a 
national emergency declared by the President. The proposed rule would 
not itself implement an alternative procedure to physical examination. 
If an alternative procedure is authorized, this would provide employers 
(or agents acting on an employer's behalf) an alternative option for 
examining the Form I-9 documentation presented by individuals seeking 
to establish identity

[[Page 50791]]

and/or employment authorization. This proposed rule would also allow 
the Secretary the option of conducting a pilot program before deciding 
whether to use the option provided in this rule. If DHS introduces an 
alternative procedure, employers would still have the option to 
physically examine documents for the Form I-9 and would not be required 
to use the alternative method.
    DHS has examined the potential impacts of an alternative procedure 
to physical examination. However, DHS is currently unable to fully 
quantify these potential impacts due to a lack of information about the 
specifics of a possible future alternative procedure. DHS discusses 
some of the potential impacts below. DHS also includes an estimate of 
the cost to employers for the Form I-9 revisions proposed in this rule.
Impacts of Form I-9 Revisions
    As discussed in Section III, DHS is proposing to add boxes to 
Sections 2 and 3 of the Form I-9 that an employer (or an agent acting 
on an employer's behalf) must select if using any available alternative 
procedure(s) and to make corresponding edits to the form's 
instructions. DHS estimates that it would take an employer one minute 
to read the revised instructions about the box indicating if an 
employer used the alternative procedure(s) and mark the box, if needed, 
or 0.02 hours (1 minute/60 minutes). Employer estimates and wage rates 
are taken from the existing Collection of Information, titled 
``Employment Eligibility Verification'', OMB Control Number 1615-0047. 
DHS uses the same wage rates and employer estimates to maintain 
consistency and to capture the changes due to this proposed rule. DHS 
estimates the total number of employers who complete the Form I-9 
annually is 55,400,000.\20\ Assuming all employers would read the 
revised instructions about the new boxes, the total annual increase in 
time burden for employers would be 1,108,000 hours (0.02 hours x 
55,400,000 employers). Using a fully loaded wage rate of $35.78 per 
hour, DHS estimates the total annual costs to employers for the 
additional box would be $39,644,240 (1,108,000 hours x $35.78 per 
hour).
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    \20\ Estimates can be found in the document titled ``I-9 
Supporting Statement'' available at https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201906-1615-001.
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Potential Impacts of an Alternative Procedure
    If the alternative procedure option (not requiring the physical 
examination of Form I-9 documentation) becomes available to some or all 
employers, the employers who decide to exercise this option may face 
new costs. If, for example, the alternative procedures were to make 
permanent the COVID-19 flexibilities for remote examination (e.g., 
examination done over video, fax, or email) or other similar remote 
examination procedures, the new costs could include the acquisition and 
set-up costs for any new information technology that may be needed for 
this purpose. Employers may also incur the related costs of training 
personnel to operate any new equipment or to apply the alternative 
procedures. If employers choose to delegate this work to contractors, 
they would also face additional contracting costs. Furthermore, if DHS 
authorizes alternative procedures on the condition that participating 
employers engage in particular activities, such as enrolling in E-
Verify, collecting and retaining images of Form I-9 documents presented 
by employees, or completing related fraudulent document detection and/
or anti-discrimination training, these conditions may entail costs and 
benefits as well. For example, if the alternative procedure(s) 
require(s) E-Verify enrollment, any unenrolled employers who choose to 
enroll in E-Verify to use the alternative procedure may incur costs 
associated with enrollment (such as the time it takes to enroll, 
complete any required training, and remain participants in good 
standing). DHS expects employers will only opt to use the alternative 
procedure(s) if they believe it is in their best interests to do so. 
Therefore, DHS expects that the benefits to employers using the 
alternative procedures option would outweigh the costs. DHS requests 
comments on the types of costs that employers may face if the Secretary 
were to authorize an alternative procedure to the physical examination 
of documentation presented by individuals to establish identity and/or 
employment authorization for the Form I-9. DHS specifically calls 
commenters' attention to the types of conditions identified above.
    As an example of potential benefits to employers who exercise the 
alternative procedure(s) option, we can consider those employers who 
operate in more than one location. These employers may be able to allow 
their human resources staff to perform the examination and verification 
procedure for Form I-9 documents from a single location or remotely, 
rather than having the verification performed at each location or be 
required to use an authorized representative to perform physical 
document examination on the employers' behalf. By centralizing their 
Form I-9 processing in this manner, these employers may streamline the 
completion of the Form I-9 and also be able to reap the savings that 
would result from these economies of scale. In addition, contractors 
that perform the same operations may be able to benefit in the same way 
from such economies of scale. With the existence of competition among 
those contractors, the costs to firms that hire these contractors may 
be reduced as well if those contractors can perform the work at a lower 
cost.
    The alternative procedures would potentially offer benefits to new 
and rehired employees as well as those whose employment authorization 
needs to be reverified, especially in cases where they may not need to 
make an extra trip to a company location to allow for the physical 
examination of their Form I-9 documentation. Recent statistics on 
commuting times have indicated that most workers (who do not work from 
home) travel, on average, about one hour, roundtrip, to commute to work 
each day.\21\ By potentially minimizing travel, the alternative 
procedures would save time spent commuting to a physical location and 
other travel expenses (such as road tolls and gasoline), as well as 
save employers the expenses they incur receiving employees at a company 
location, such as preparing visitors badges.
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    \21\ Average One-Way Commuting Time by Metropolitan Area, U.S. 
Census Bureau, https://www.census.gov/library/visualizations/interactive/travel-time.html (last visited Oct. 20, 2021).
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    Additional potential benefits to employees and employers may arise 
from the alternative procedures in the area of remote work. Employers 
who are seeking to hire new remote workers or rehire former employees 
will have greater flexibility to hire a new employee who would 
otherwise have difficulty making the trip to a company location to 
physically present his or her identity and employment authorization 
documentation. Thus, in some cases, the alternative procedures may 
enable some employers to benefit from a larger pool of candidates 
competing for the employer's available positions. By the same token, 
individuals seeking employment may be able to seek positions from a 
larger field of potential employers.
    DHS requests comments about the costs and benefits from the 
physical examination of Form I-9 documentation with respect to: (1) 
employers hiring employees, or (2) employees seeking,

[[Page 50792]]

obtaining, or re-obtaining employment. DHS also requests comments on 
any cost savings that employers or employees may incur if the Secretary 
were to authorize an alternative procedure to the physical examination 
of documentation presented by individuals to establish identity and 
employment authorization for the Form I-9.

B. Regulatory Flexibility Act

    DHS has reviewed this proposed rule in accordance with the 
Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612), as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996, Public 
Law 104-121, tit. II, 110 Stat. 847. This rule would allow the 
Secretary to authorize alternative options for document examination 
procedures with respect to some or all employers as part of a pilot 
program, upon the Secretary's determination that such procedures offer 
an equivalent level of security, or as a temporary measure to address a 
public health emergency declared by the Secretary of Health and Human 
Services or a national emergency declared by the President. The 
proposed rule would not itself implement an alternative procedure to 
physical inspection. If DHS introduces an alternative procedure, 
employers would still have the option to physically examine documents 
for the Form I-9 and would not be required to use the alternative 
method(s). Accordingly, DHS certifies that this rule will not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.

C. Small Business Regulatory Enforcement Fairness Act of 1996

    Pursuant to Section 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996, Public Law 104-121, 110 Stat. 847, 
858-59, DHS wants to assist small entities in understanding this 
proposed rule so that they can better evaluate its effects and 
participate in the rulemaking. If the proposed rule would affect your 
small business, organization, or governmental jurisdiction and you have 
questions concerning its provisions or options for compliance, please 
use the contact information provided in the FOR FURTHER INFORMATION 
CONTACT section of this document.

D. Unfunded Mandates Reforms Act of 1995

    The Unfunded Mandates Reform Act (UMRA) of 1995 (2 U.S.C. 1531-
1538) requires federal agencies to assess the effects of their 
discretionary regulatory actions. In particular, the UMRA addresses 
actions that may result in the expenditure by a State, local, or tribal 
government, in the aggregate, or by the private sector of $100,000,000 
(adjusted for inflation) or more in any year. This proposed rule would 
not result in such an expenditure, and for this reason, no additional 
actions were deemed necessary under the provisions of the UMRA.

E. Paperwork Reduction Act--Collection of Information

    Under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-12, DHS 
must submit to OMB, for review and approval, any reporting requirements 
inherent in a rule unless they are exempt.
    DHS invites the general public and other Federal agencies to 
comment on the impact of the proposed collection of information. In 
accordance with the PRA, the information collection notice is published 
in the Federal Register to obtain comments regarding the proposed edits 
to the information collection instrument. DHS calls commenters' 
attention to the proposal to add boxes to Sections 2 and 3 of the Form 
I-9 and to revise the form instructions to refer to alternative 
procedures. If you have questions concerning this proposal, contact the 
person in the FOR FURTHER INFORMATION CONTACT section of this document. 
DHS also welcomes comments on the burden(s) associated with the 
potential conditions for using alternative procedures, as described 
earlier in this preamble. Following this period of public comment, DHS 
may seek OMB approval to further revise the collection of information 
to accommodate such potential conditions following publication of the 
final rule, pilot program, or alternative procedures, if and when 
appropriate.
    Comments are encouraged and will be accepted for 60 days from the 
publication date of the proposed rule.
    Comments on this information collection should address one or more 
of the following four points:
    (1) Evaluate whether the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses.
Overview of Information Collection
    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: Employment Eligibility 
Verification.
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: I-9; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Individuals or households; Business 
or other for-profit. The Form I-9 was developed to facilitate 
compliance with Section 274A of the Immigration and Nationality Act, as 
amended by the Immigration Reform and Control Act of 1986, making 
employment of unauthorized aliens unlawful and diminishing the flow of 
illegal workers in the United States. DHS is revising this form and its 
accompanying instructions to correspond with revisions related to any 
alternative procedure(s) that may be authorized by the Secretary for 
examining the documentation presented by individuals to establish 
identity and employment authorization for the Form I-9.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The estimated 
total number of respondents for the information collection I-9 for 
Employers is 55,400,000 and the estimated hour burden per response is 
0.35 hours. The estimated total number of respondents for the 
information collection I-9 for Employees is 55,400,000 and the 
estimated hour burden per response is 0.17 hours. The estimated total 
number of respondents for the information collection Record Keeping is 
20,000,000 and the estimated hour burden per response is 0.08 hours.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection is 30,408,000 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this collection of information is $0.

F. Executive Order 13132: Federalism

    A rule has implications for federalism under section 6 of Executive 
Order

[[Page 50793]]

13132, Federalism, if it has substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. DHS has analyzed this proposed rule under that 
Order and has determined that it does not have implications for 
federalism.

G. Executive Order 12988: Civil Justice Reform

    This proposed rule meets applicable standards set forth in sections 
3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to 
minimize litigation, eliminate ambiguity, and reduce burden.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    DHS has analyzed this proposed rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. DHS has determined that it is not a ``significant 
energy action'' under that order because it is a ``significant 
regulatory action'' under Executive Order 12866 but is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy.

I. National Environmental Policy Act

    DHS Management Directive 023-01 Rev. 01 and Instruction Manual 023-
01-001-01 Rev. 01 establish the policy and procedures that DHS and its 
Components use to comply with the National Environmental Policy Act of 
1969 (NEPA), 42 U.S.C. 4321-4375, and the Council on Environmental 
Quality regulations for implementing NEPA, 40 CFR parts 1500 through 
1508.
    The CEQ regulations enable federal agencies to establish categories 
of actions that do not individually or cumulatively have a significant 
effect on the human environment and, therefore, do not require an 
Environmental Assessment or Environmental Impact Statement. 40 CFR 
1508.4. The DHS Categorical Exclusions are listed in IM 023-01-001-01 
Rev. 01, Appendix A, Table 1.
    For an action to be categorically excluded, the action must satisfy 
each of the following three conditions:
    (1) The entire action clearly fits within one or more of the 
Categorical Exclusions;
    (2) The action is not a piece of a larger action; and
    (3) No extraordinary circumstances exist that create the potential 
for a significant environmental effect. IM 023-01-001-01 Rev. 01 
section V(B)(2)(a)-(c).
    If the action does not clearly meet all three conditions, DHS or 
the Component prepares an Environmental Assessment or Environmental 
Impact Statement, according to CEQ requirements, MD 023-01, and IM 023-
01-001-01 Rev. 01.
    DHS has analyzed this action under MD 023-01 Rev. 01 and IM 023-01-
001-01 Rev.01. DHS has made a determination that this rulemaking action 
is one of a category of actions which do not individually or 
cumulatively have a significant effect on the human environment. This 
action clearly fits within the Categorical Exclusions found in IM 023-
01-001-01 Rev. 01, Appendix A, Table 1, numbers A3(a) and (d): 
``Promulgation of rules, issuance of rulings or interpretations, and 
the development and publication of policies, orders, directives, 
notices, procedures, manuals, advisory circulars, and other guidance 
documents of the following nature: (a) Those of a strictly 
administrative or procedural nature [and] (d) Those that interpret or 
amend an existing regulation without changing its environmental 
effect.'' This rule is not part of a larger action. This rule presents 
no extraordinary circumstances creating the potential for significant 
environmental effects. Therefore, more detailed NEPA review is not 
necessary. DHS seeks any comments or information that may lead to the 
discovery of any significant environmental effects from this rule.

J. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would not have a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes.

K. Executive Order 12630: Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    This proposed rule would not cause a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

L. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045 requires agencies to consider the impacts of 
environmental health risk or safety risk that may disproportionately 
affect children. DHS has reviewed this proposed rule and determined 
that this proposed rule is not an economically significant rule and 
would not create an environmental risk to health or risk to safety that 
might disproportionately affect children. Therefore, DHS has not 
prepared a statement under this executive order.

M. National Technology Transfer and Advancement Act

    The National Technology Transfer and Advancement Act of 1995 (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through OMB, with an explanation of why using these standards would be 
inconsistent with applicable law or otherwise impracticable. Voluntary 
consensus standards are technical standards (e.g., specifications of 
materials, performance, design, or operation, test methods, sampling 
procedures, and related management systems practices) that are 
developed or adopted by voluntary consensus standards bodies. This 
proposed rule does not use technical standards. Therefore, DHS did not 
consider the use of voluntary consensus standards.

N. Family Assessment

    DHS has determined that this action would not affect family well-
being within the meaning of section 654 of the Treasury and General 
Government Appropriations Act, enacted as part of the Omnibus 
Consolidated and Emergency Supplemental Appropriations Act of 1999 
(Pub. L. 105-277, 112 Stat. 2681).

List of Subjects in 8 CFR Part 274a

    Administrative practice and procedure, Aliens, Cultural exchange 
program, Employment, Penalties, Reporting and recordkeeping 
requirements, Students, Verification of identity and employment.

Regulatory Amendments

    Accordingly, DHS proposes to amend part 274a of chapter I, 
subchapter B, of title 8 of the Code of Federal Regulations as follows:

[[Page 50794]]

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
1. The authority citation for part 274a continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1105a, 1324a; 48 U.S.C. 1806; 8 
CFR part 2; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 
114-74, 129 Stat. 599.

0
2. Section 274a.2 is amended by:
0
a. Revising paragraph (b)(1)(ii)(A) and the second sentence in 
paragraph (b)(1)(vii).
0
b. Adding paragraph (b)(1)(ix).
0
c. Revising paragraph (c)(1)(ii).
    The addition and revisions read as follows:


Sec.  274a.2  Verification of identity and employment authorization.

* * * * *
    (b) * * *
    (1) * * *
    (ii) * * *
    (A) Physically examine (or otherwise examine pursuant to an 
alternative procedure authorized by the Secretary under paragraph 
(b)(1)(ix) of this section) the documentation presented by the 
individual establishing identity and employment authorization as set 
forth in paragraph (b)(1)(v) of this section and ensure that the 
documents presented appear to be genuine and to relate to the 
individual; and
* * * * *
    (vii) *** Reverification on the Form I-9 must occur not later than 
the date work authorization expires and must comply with the applicable 
document presentation and examination procedures in paragraphs 
(b)(1)(ii)(A) and (b)(1)(ix) of this section, and form instructions. * 
* *
* * * * *
    (ix) As an optional alternative to the physical examination 
procedure described in paragraph (b)(1)(ii)(A) of this section, the 
Secretary may authorize alternative documentation examination 
procedures with respect to some or all employers. The Secretary may 
adopt such procedures:
    (A) As part of a pilot program;
    (B) Upon the Secretary's determination that such procedures offer 
an equivalent level of security; or
    (C) As a temporary measure to address a public health emergency 
declared by the Secretary of Health and Human Services pursuant to 
Section 319 of the Public Health Service Act, or a national emergency 
declared by the President pursuant to Sections 201 and 301 of the 
National Emergencies Act.
* * * * *
    (c) * * *
    (1) * * *
    (ii) If upon inspection of the Form I-9, the employer determines 
that the individual's employment authorization has expired, the 
employer must reverify such employment authorization on the Form I-9 in 
accordance with paragraph (b)(1)(vii) of this section, including 
complying with the applicable document presentation and examination 
procedures in paragraphs (b)(1)(ii)(A) and (b)(1)(ix) of this section, 
and form instructions; otherwise the individual may no longer be 
employed.
* * * * *

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2022-17737 Filed 8-17-22; 8:45 am]
BILLING CODE 9111-28-P