Take your chance to comment on the benefits of remote document review: Form I-9 and E-Verify | Alston & Bird

Our immigration team is reviewing the Department of Homeland Security’s many questions about the possibility of making its COVID-19 policies permanent on the remote review of employee Form I-9 and other required documents.

  • Questions are indications of how the ongoing process might work
  • What can you do to influence the ministry’s decision?
  • What questions does DHS ask?

Each U.S. employer must certify that it has verified the identity of each of its employees and eligibility for employment via an in-person meeting with employee with a physical review of employee documents. For decades, this in-person filling out of the I-9 form for a remote employee has been a problem for many.

In the wake of the COVID-19 pandemic, the Department of Homeland Security (DHS) has announced a temporary alternative option to meeting in person and reviewing physical documents. Due to physical proximity precautions, in some situations face-to-face meeting is not required and the employer could remotely review the identity and employment eligibility documents of its employees (for example, a virtual review, review by video link, fax or e-mail).

Now, among other things, DHS is exploring the possibility of making this virtual review a permanent alternative to in-person meetings and physical examination of documents. DHS is seeking public input on the remote / virtual review alternative, the Form I-9 process, E-Verify, and information that can be used to inform and potentially improve DHS policies.

The deadline for comments is December 27, 2021. Below are some of the questions asked by DHS. We have worked with a wide variety of employers, employees, integration / ATS service providers and business groups who take this opportunity to tell DHS what is working and what is not working properly in the form. I-9, E-Verify, and onboarding process.

If you want:

  • Comment, please do so on the Federal eRulemaking portal (case number USCIS-2021-0022).
  • Brainstorm and / or discuss the potential, intended or unintended consequences of some suggestions, please contact us.
  • Include your comments anonymously, contact us. Since we have a unique specialty in this area, we prepare comments under our own name and contribute comments from a national organization.

DHS questions to the public include the following or related variations

Consideration for future remote (virtual) document review procedures

  1. What are the direct and indirect charges to employees and employers related to the physical document review requirement for Form I-9?
  2. What are the direct and indirect burdens on employees and employers associated with using authorized representatives to meet the physical document review requirement?
  3. What would be the direct and indirect benefits of offering a permanent option for remote review of Form I-9 identity and work eligibility documents (for example, allowing some employers to centralize the processing of Form I -9)?
  4. What would be the direct and indirect costs of providing a permanent option for remote review of Form I-9 identity and work eligibility documents (for example, training or acquisition costs? technology)?
  5. What would be the direct and indirect burdens on small employers to provide a permanent option for remote review of Form I-9 identity and work eligibility documents (for example, training or acquisition costs? technology)?
  6. What are the unique challenges that small employers face with this process and these flexibilities?
  7. What kinds of alternatives should be provided to small employers to adopt these flexibilities?
  8. If employers had a permanent option for remote document review, what types of employers and employees do you think would be interested in participating or not?
  9. How does participation requirements as a condition of these flexibilities, such as required registration with E-Verify, requirements for quality or retention of documents or images, or required completion of training offered by DHS, could they have an impact on an employer’s desire or ability to use such flexibility?
  10. What would be the costs or benefits associated with making E-Verify registration a condition of flexibility for an employer?
  11. If DHS were to permanently allow a remote document review option, what technical considerations, if any, should participating employers take into account?
  12. What impact, if any, would a permanent remote document review option have on employees and employers?
  13. If these flexibilities are adopted on a permanent basis, are there any requirements that DHS should adopt to ensure the protection of employee rights related to document review?
  14. Are there solutions for employers to verify that documents reviewed remotely appear to be genuine and relate to the person presenting them?
  15. What DHS actions would encourage the commercial development of such solutions?
  16. Should DHS consider amending the current lists of acceptable documents on Form I-9, in the context of remote document review?
  17. If DHS is considering changing the current lists of acceptable documents, what would be the costs and benefits of such changes?
  18. Are there other factors that DHS should consider when it comes to remote document review?

The pandemic experience

1. Have you or your organization used the temporary flexibilities for remote document review for Form I-9 since March 20, 2020?

  • If not why ?
  • If so, what has your experience been using flexibilities?
  • How have small employers used these flexibilities?

2. If the employer has performed remote document reviews since March 20, 2020:

  • What have been your experiences with the internal technical capabilities to perform remote document review (eg video quality, image quality, document retention)?
  • What have been your experiences with digital images provided by employees or copies of documents to be kept?
  • What have been your experiences with the remote completion and submission of Section 1 of Form I-9 by employees?
  • What technological processes and solutions were typically used to review documents remotely (for example, via video link, fax, or email)?
  • Was the process always the same or did it vary depending on the circumstances?
  • What internal policies, if any, have been put in place for remote document review practices?
  • Were documents reviewed remotely rejected because they did not appear authentic or did not relate to the person presenting them?
  • Have there been instances where a document was accepted during a remote review, but on a subsequent physical inspection, the employer determined that the document did not appear to be authentic or did not relate to the person who presented it? If so, what measures has the employer taken?

3. If the employer has performed remote document reviews since March 20, 2020 and is registered with E-Verify:

  • Were any documents reviewed remotely for which E-Verify returned an Employment Authorization result, but on a subsequent physical examination, the employer determined that the documents did not appear to be authentic or did not relate to the person who presented them?
  • If so, what actions has the employer taken?
  • What challenges, if any, have employers encountered in interpreting and meeting the requirements for participating in the E-Verify program during the remote document review period?

4. What other changes, if any, have employers made to the Form I-9 document inspection procedures during the pandemic?
5. Have employers increased the use of authorized representatives during the pandemic?

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