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Since March 2020, USCIS has allowed virtual I-9 remote review when all employees are working remotely due to COVID, or when a new employee is working remotely due to COVID after April 1, 2021. Many employers and immigration attorneys require a remote virtual I-9 review independent of remote work. It looks like the Department of Homeland Security (DHS) has heard the pleas for this much-needed modernization of I-9 compliance.
On August 18, 2022, DHS proposed the possibility of virtual remote verification even when employees are not working remotely. DHS has asked the public for comments on the matter. If implemented, this proposal could mean a major shift and improvement in the world of I-9 compliance.
In its request for comment, DHS said it is evaluating several ideas for remote virtual testing, including a pilot program; one where the DHS secretary authorizes it due to a public health emergency such as COVID; or as a permanent program. Many employers favor a permanent option, and it is most likely to be implemented as long as employers meet certain criteria. Possible criteria that will be examined are an employer’s registration and use of E-Verify, participation in an online DHS course on fraudulent record detection, and retention of copies of the records (this last criterion is not required by federal law, however, is usually considered an option).
In addition, DHS has discussed interim treatment for employers based on a fine, settlement, or conviction related to Form I-9 practices. This criterion appears to be susceptible to many factors, e.g. B. what type of violations an employer has committed in order to receive a fine or settlement –eg., material violations of paperwork or knowingly hiring undocumented workers? There is a major difference between these two types of violations, and it could be argued that an employer who commits material paperwork violations should not be excluded from this program.
The amount of the fine could also be a consideration. For example, an employer who is fined $10,000 might be seen in a better light than one who pays $100,000. Thus, an employer who pays a $100,000 fine could be disfellowshipped, but not the employer who pays a $10,000 fine. Another factor to consider is when the settlement or fine occurred. For example, a recent fine could be considered a reason for disqualification, while one imposed in the distant past would not. As usual, the devil is in the details.
Lawyers and the general public have until October 17, 2022 to submit their comments. DHS will then draft the proposed regulation. This ordinance is then presented to the public for comment. Given the typical pace of government legislation, DHS is not expected to issue a final rule on this matter until late 2023. In the meantime, Littler will keep employers informed of any important developments.
The content of this article is intended to provide a general guide to the topic. In relation to your specific circumstances, you should seek advice from a specialist.
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