Leading business and immigration organizations, including BAL, have issued comments urging the Department of Homeland Security (DHS) to allow employers to complete employment eligibility verification remotely.

The comments came in response to a proposed rule published in August that would allow DHS to provide optional alternatives to physical document examination in some scenarios in the Form I-9 process. Under temporary guidance, DHS has allowed employers operating remotely because of the COVID-19 pandemic to conduct verification of employee documents virtually, e.g., by using fax, email or video link.

“DHS’s implementation of flexible policies during the COVID-19 pandemic has demonstrated that employers can maintain compliant programs and verify the work authorization of their employees in a remote setting,” BAL said in its comment. “Employers have overhauled their office and remote work arrangements, and we encourage DHS to take this opportunity to develop processes that take these changes into account.”

DHS recently extended the temporary flexibilities through July 31, 2023.

The Business Roundtable, Compete America and the American Immigration Lawyers Association (AILA), among other organizations, joined BAL in calling for DHS to finalize the proposed rule and make remote document review available permanently.

“Our members’ companies and their employees have benefited significantly from the temporary ‘virtual’ policy,” the Business Roundtable said. “We encourage DHS to finalize this regulation without delay to formalize its authority to allow alternatives to in-person document review. Once the final regulation is in place, we urge the agency to move quickly to make fully remote verification a permanent option for employers.”

BAL Analysis: The business community has consistently shown strong support for making remote verification a permanent option. The proposed rule drew more than 500 comments, which DHS will now review before crafting a final rule. BAL will continue following the proposal through the regulatory process and will provide updates as information becomes available.

This alert has been provided by BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2022 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.