[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]

-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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]]

  1. 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.

  1. 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.

---------------------------------------------------------------------------

\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).

---------------------------------------------------------------------------

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.

---------------------------------------------------------------------------

\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).

---------------------------------------------------------------------------

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.

---------------------------------------------------------------------------

\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).

---------------------------------------------------------------------------

On August 31, 2021, DHS announced that the document examination

flexibilities established on March 20, 2020, were extended until

December 31, 2021.\4\

---------------------------------------------------------------------------

\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).

---------------------------------------------------------------------------

III. Request for Input

  1. 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.

---------------------------------------------------------------------------

\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.

---------------------------------------------------------------------------

  1. 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.

  1. 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?

  1. If the employer performed any remote document examinations since

March 20, 2020:

  1. What were your experiences with internal technical capabilities

to perform remote document examination (for example, video quality,

image quality, document retention, etc.)?

  1. What were your experiences related to employee-provided digital

images or copies of documents for retention?

  1. What were your experiences related to employees' remote

completion and submission of Section 1 of the Form I-9?

  1. 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?

  1. 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?

  1. If the employer performed any remote document examinations since

March 20, 2020, and is enrolled in E-Verify:

  1. 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?

  1. 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?

---------------------------------------------------------------------------

\6\ E-Verify Memorandum of Understanding: https://www.e-verify.gov/sites/default/files/everify/memos/MOUforEVerifyEmployer.pdf.

---------------------------------------------------------------------------

  1. 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?

  1. 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?

  1. 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)?

  1. 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)?

  1. 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?

  1. 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?

  1. 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?

  1. What would be the costs or benefits associated with making

enrollment in E-Verify a condition of flexibilities for you, as an

employer?

  1. If DHS were to permanently allow an option for remote document

examination, what technical considerations would participating

employers have to consider?

  1. 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?

  1. 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?

  1. 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?

  1. Are there any other factors DHS should consider related to

remote document examination?

  1. 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]

BILLING CODE 9111-97-P