New Process for Remote Hires in 2022?

For decades, employers have been burdened with the completion of the Federal Form I-9 Employment Eligibility Verification and the requisite process of physically inspecting a new hire’s identity and work eligibility documentation to establish the right to work in the U.S. Many employers welcomed E-Verify when it emerged with hopes it would take the place of the I-9 form. Much to everyone’s surprise, the I-9 form prevails and the document inspection requirement is still a key component of I-9 form compliance. However, there have been recent changes to how the document inspection requirement is carried out.

On March 20, 2020, USCIS made its first move towards a more lenient way to accommodate the document inspection requirement for individuals who are unable to produce documents in person due to COVID-19 restrictions whether it is because of a physical restriction or because the workplace is only operating remotely.  DHS announced the Flexibility Rule allowing employees who are unable to appear at the worksite due to COVID-19 to present documentation via a scan, video link, facsimile or photograph in order to complete the Form I-9 with the employer. However, the caveat is that employers are to document the remote inspection and physically inspect the documents within three days after the public National Emergency (related to the pandemic) is lifted.

As more companies temporarily closed their doors and a surge of employees began working remotely, USCIS took notice and expanded the Flexibility Rule to include individuals who are working remotely but not necessarily due to COVID-19. Now individuals hired on or after April 1, 2021 who work exclusively in a remote setting and who do not report at a company location “on any regular, consistent or predictable basis,” became eligible to take advantage of the Flexibility Rule until such time that the employee undertakes non-remote site work. The Flexibility Rule is due to expire on April 30, 2022 and it is not known yet whether it will be postponed again.

In the meantime, USCIS is investigating other possibilities. On October 26, 2021, USCIS published a public notice in the Federal Register (FR Doc. 2021-23260) seeking to get feedback on document examination practices with an emphasis on remote document inspection.

Companies are encouraged to put a plan in place to start physically inspecting documents that were previously done remotely. Employers will have to remind employees to physically present document(s). Then, upon presentation, mark who and when they physically examined the documents. Hopefully, companies will have put a tickler system in place or have a more direct approach to identifying the respective employees. How DHS-ICE will enforce this practice and whether a fine will be imposed for non-compliance has not received much attention by the public but perhaps USCIS will be publishing some guidance soon.