[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

________________________________________________________________________

 

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:

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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

 

  1. 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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  1. 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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  1. 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.

 

  1. 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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  1. 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.

  1. 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.

  1. 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).

 

  1. 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.

 

  1. 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).

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

 

    \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.

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

 

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.

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

 

    \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).

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

 

    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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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

  1. Section 274a.2 is amended by:

0

  1. Revising paragraph (b)(1)(ii)(A) and the second sentence in

paragraph (b)(1)(vii).

0

  1. Adding paragraph (b)(1)(ix).

0

  1. 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