# Optional Alternatives to the Physical Document Examination Associated With Employment Eligibility Verification (Form I-9) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2023-15532 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** July 25, 2023 - **Citation:** 88 FR 47990 ## Text 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, Department of Homeland Security. ACTION: Final rule. SUMMARY: The Department of Homeland Security (DHS) is amending its regulations to create a framework under which the Secretary of Homeland Security (the Secretary) may, as an optional alternative to the in-person physical document examination method that employers have followed as part of the Form I-9 process set forth in current regulations, authorize alternative document examination procedures. The Secretary may authorize such alternative 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 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. In addition, in a separate document published in this edition of the Federal Register , DHS is announcing the Secretary's authorization of an alternative document examination procedure and the conditions for participation. DATES: The effective date of this final rule is August 1, 2023. 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 (this is not a toll-free number). SUPPLEMENTARY INFORMATION: I. Background A. Purpose of the Regulatory Action This rule responds to lessons learned during the COVID-19 pandemic, which demonstrated the substantial practical benefits of an optional alternative to the physical documentation examination procedures required by the employment eligibility verification regulations at 8 CFR 274a.2(b)(1)(ii)(A). The rule creates a framework under which DHS may implement permanent flexibilities under certain conditions, initiate pilot procedures with respect to the examination of documents, or respond to emergencies similar to the COVID-19 pandemic. 1 DHS is also adding a box to the Form I-9; employers will use the box to document the use of a DHS-authorized alternative procedure. 1 See 87 FR at 50789. This action is also consistent with the goals of Executive Order 14058, Transforming Federal Customer Experience and Service Delivery to Rebuild Trust in Government, which directs agencies to “reduce administrative hurdles and paperwork burdens to minimize `time taxes' ” and “redesign compliance-oriented processes to improve customer experience and more directly meet the needs of the people of the United States.” 2 The reduction of “time taxes,” consistent with law, is a national priority; it has the potential to promote social welfare generally and equity in particular. Many of the public comments are consistent with this point. For example, many of the comments were from employers and employees who have adopted permanent telework and remote work arrangements that no longer require employees to physically report to an employer worksite on a regular, consistent, or predictable basis. 2 See 86 FR 71357 (published Dec. 16, 2021). Authorizing an alternative procedure offers potential benefits to new and rehired employees because they no longer need to travel to a worksite to present documentation for the Form I-9. DHS believes that authorizing an alternative option can be done without compromising the integrity of the employment eligibility verification process. Therefore, this final rule amends 8 CFR 274a.2 to allow the Secretary to authorize optional alternatives for examining the documentation presented by individuals seeking to establish identity and employment authorization for the purpose of completing the Form I-9. This final rule also summarizes an optional alternative procedure for the examination of the documentation presented by individuals seeking to establish identity and employment authorization for the purpose of completing the Form I-9, as announced by DHS in a document ( Optional Alternative 1 to the Physical Document Examination Associated with Employment Eligibility Verification (Form I-9 )) concurrently published in this edition of the Federal Register . This final rule does not change the standard employers must follow when examining documentation; employers who examine documentation in person (physical examination) or remotely through an alternative procedure authorized by the Secretary are still required to accept documentation that “reasonably appears to be genuine and to relate to” the employee presenting the documentation. 3 3 8 U.S.C. 1324a(b)(1)(A)(ii). As explained in the accompanying Federal Register notice, employers must allow employees who are unable or unwilling to submit documentation using the optional alternative procedure the option to submit documentation in person for physical examination. B. 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, 4 to amend the Immigration and Nationality Act (INA). Among other reforms, the IRCA amendments made it unlawful for employers to knowingly hire individuals who are unauthorized 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. 5 IRCA imposed employer sanctions, codified in section 274A of the INA, 8 U.S.C. 1324a, including financial, criminal, and other penalties for those who failed to verify the identity and the employment authorization 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. 6 Among other goals, IRCA sought to ensure that only authorized 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. 7 IRCA prompted the creation of the Form I-9 as the designated 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. 8 If an employee's temporary employment authorization expires, the employer must reverify the employee's employment authorization to ensure that the employee continues to be authorized to work in the United States. 9 If an employee is rehired, the employer must also ensure that the employee is still authorized to work in the United States at the time of rehire. 10 The employer must retain the Form I-9 in a paper, electronic, or other 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. 11 4 Immigration Reform and Control Act, Public Law. 99-603 100 Stat. 3445. 5 Id. 6 Id. 7 See 8 U.S.C. 1324a and 8 U.S.C. 1324b. 8 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 (last visited May 24, 2023). 9 8 CFR 274a.2(b)(1)(vii). 10 8 CFR 274a.2(c). 11 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 (last visited May 24, 2023). The authority of the Secretary to implement the regulatory amendments in this rule can be found in the Homeland Security Act of 2002, Public Law 107-296, which transferred the responsibility for overseeing the examination of documentation evidencing identity and employment authorization from the former U.S. Immigration and Naturalization Service, previously a component of the U.S. Department of Justice, to DHS. See, e.g., 6 U.S.C. 111, 557; 8 U.S.C. 1103, 1324a, 1324b. Within DHS, U.S. Citizenship and Immigration Services (USCIS) issues most employment authorization documentation to noncitizens and administers an electronic employment eligibility confirmation program called E-Verify, 12 and U.S. Immigration and Customs Enforcement (ICE) monitors and enforces compliance with the requirements of the Form I-9. Within the U.S. Department of Justice, the Civil Rights Division's Immigrant and Employee Rights Section enforces the INA's anti-discrimination provision found at 8 U.S.C. 1324b. This law prohibits certain types of employment discrimination based on citizenship, immigration status, and national origin, including discrimination in the Form I-9 and E-Verify processes. 12 E-Verify is an internet-based system that compares information entered by an employer from an employee's Form I-9, Employment Eligibility Verification, to records available DHS and the Social Security Administration to confirm the employee's employment eligibility. More information is available at https://www.e-verify.gov/ (last visited Mar. 14, 2022). C. COVID-19 Flexibilities Due to the physical proximity precautions implemented by employers related to combating the 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. 13 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). 13 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 visited May 20, 2023). 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 14 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 predictable basis needed to undergo an in-person examination of their Form I-9 identity and employment eligibility documentation. 15 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. 16 Subsequently, due to the continuation of the COVID-19 pandemic, ICE extended these flexibilities several times. 17 14 See 85 FR 15337 (Mar. 18, 2020). 15 See “ICE announces extension, new employee guidance to I-9 compliance flexibility,” U.S. Immigration and Customs Enforcement (Effective Apr. 1, 2021), available at https://www.ice.gov/news/releases/ice-announces-extension-new-employee-guidance-i-9-compliance-flexibility (last visited May 20, 2023). 16 See USCIS, DHS Extends Form I-9 Flexibility (Effective Mar. 31, 2021), available at 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 visited May 20, 2023); ICE announces extension, new employee guidance to I-9 compliance flexibility (Apr. 1, 2021), available at https://www.ice.gov/news/releases/ice-announces-extension-new-employee-guidance-i-9-compliance-flexibility (last visited May 20, 2023). 17 See, e.g., DHS Extends Form I-9 Requirement Flexibility (Effective May 1, 2022), available at 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 May 24, 2023); ICE announces extension to I-9 compliance flexibility, available at https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-3 (last updated May 24, 2023). 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. 18 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. 18 86 FR 59183. On October 11, 2022, ICE announced that the COVID-19 flexibilities would be extended until July 31, 2023. 19 On May 4, 2023, ICE announced that, instead of the previously announced three-day period for physically examining the documents of employees hired under the COVID-19 flexibilities, employers would have 30 days to comply with the Form I-9 document examination requirements after the COVID-19 flexibilities sunset on July 31, 2023. 20 19 ICE, ICE Announces Extension to I-9 Compliance Flexibility, available at https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-3 (last visited May 20, 2023). 20 ICE, ICE Updates Form I-9 Requirement Flexibility to Grant Employers More Time to Comply with Requirements (May 5, 2023), available at https://www.ice.gov/news/releases/ice-updates-form-i-9-requirement-flexibility-grant-employers-more-time-comply (last visited May 20, 2023). D. Notice of Proposed Rulemaking On August 18, 2022, DHS published a notice of proposed rulemaking (NPRM), Optional Alternatives to the Physical Document Examination Associated with Employment Eligibility Verification (Form I-9). 21 DHS received 512 public comments before the close of the comment period. The vast majority of comments expressed support for the proposed rule. These comments generally supported the availability of an alternative procedure similar to the temporary flexibilities DHS initially announced on March 20, 2020 to address the physical proximity precautions implemented by employers to combat the COVID-19 pandemic. Many commenters said the ability to apply a remote inspection procedure reduced burdens on employers, expanded employers' access to eligible employees, and aligned with the shift to new workplace realities. A minority of the commenters expressed opposition to the proposed rule. Some commenters opposed to remote inspection expressed concerns about the reliability of inspecting a document remotely. Some supported remote inspection but questioned the need for more training and recordkeeping requirements. DHS considered all public comments before issuing this final rule. A discussion of the public comments and responses follows later in this preamble. 21 See Optional Alternatives to the Physical Document Examination Associated With Employment Eligibility Verification (Form I-9), 87 FR 50786 (Aug. 18, 2022). E. Changes From Proposed Rule to Final Rule As discussed in the comment and response sections below in this final rule, DHS has considered the input provided by commenters in response to the NPRM, the vast majority of which supported the proposed changes, and is adopting the changes proposed in the NPRM, with certain modifications. This final rule amends 8 CFR 274a.2 to allow the Secretary to authorize optional alternatives to the in-person physical document examination method employers have followed as part of the Form I-9 process set forth in current regulations. Under this rule, the Secretary may authorize alternative documentation examination procedures with respect to some or all employers, and such procedures may be adopted as part of a pilot program, or upon a 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). On the basis of a review of public comments, the final rule makes two changes as compared to the proposed regulatory text. First, the proposed rule stated that the Secretary may authorize alternative documentation examination procedures with respect to some or all employers. See 87 FR at 50794. DHS has revised this text to make clear that any such procedures must be consistent with applicable law and authorized via a notice published in the Federal Register . See 8 CFR 274a.2(b)(1)(ix). Second, the proposed rule conditioned the issuance of permanent alternative procedures upon the Secretary's determination that such procedures offer an equivalent level of security. See 87 FR at 50794. DHS has revised this text to clarify that the level of security must be equivalent to that of physical examination as indicated by, for instance, observed measures of system integrity (such as error or fraud rates) or the procedure's capacity for confirming certain documents or information. See 8 CFR 274a.2(b)(1)(ix)(B). DHS notes that it would also consider other relevant factors, such as potential discrimination based on a protected characteristic in the administration of an alternative procedure. F. Optional Alternative Procedure for Document Examination Concurrent with the issuance of this rule, and following consideration of the comments received on the NPRM and the calls for comments contained therein, DHS is proceeding with an optional alternative procedure that includes various requirements to ensure an equivalent level of security. In the accompanying document, Optional Alternative 1 to the Physical Document Examination Associated with Employment Eligibility Verification (Form I-9), DHS describes an optional alternative to the in-person physical document examination (physical examination) method employers have followed as part of the Form I-9 process set forth in current regulations. As detailed in the notice, to ensure an equivalent level of security, the alternative procedure currently includes certain requirements, such as conditions for participation and parameters that employers who choose to use the alternative procedure must adhere to. At this time, the alternative procedure is available only to qualified employers, meaning those employers who are enrolled, and participate in good standing, in E-Verify. A qualified employer does not need to use the alternative procedure, but if a qualified employer chooses to offer the alternative procedure to new employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site, without discrimination. However, a qualified employer may choose to offer the alternative procedure for remote hires only but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity, so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on a protected characteristic, i.e., their citizenship, immigration status, or national origin. 22 Under no circumstances can employers unlawfully discriminate, such as by deciding who is eligible for the alternative procedure based on a protected characteristic. 22 See 8 U.S.C. 1324b(a)(1). Qualified employers must retain clear and legible copies of all documents presented by the employee seeking to establish identity and employment eligibility for the Form I-9 through the alternate procedures. 23 New E-Verify employers and any users who manage and create E-Verify cases must complete an E-Verify tutorial that includes fraud awareness and anti-discrimination training. The tutorial is free and accessible as part of the E-Verify enrollment process to any users who manage and create E-Verify cases. 23 E-Verify employers who do not apply the alternative procedure are only required to retain a photocopy of the following documents with an employee's Form I-9: U.S. passport, U.S. passport card. Form I-551, Permanent Resident Card, Form I-766, Employment Authorization Document, available at https://www.e-verify.gov/sites/default/files/everify/memos/MOUforEVerifyEmployer.pdf (last visited May 25, 2023). Within three business days of an employee's first day of employment, a qualified employer (or an authorized representative acting on the employer's behalf, such as a third-party vendor) who chooses to use the alternative procedure must: 1. Examine copies (front and back, if the document is two-sided) of Form I-9 documents 24 or an acceptable receipt 25 to ensure that the documentation presented reasonably appears to be genuine; 24 The Lists of Acceptable Documents are included with the Form I-9. 25 Occasionally, employees may present a “receipt” in place of a List A, B, or C document. An acceptable receipt is valid for a specified period of time so an employer can complete Form I-9, Employment Eligibility Verification. Employers cannot accept receipts if employment will last less than three 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 8 CFR 274a.2(b)((1)(vi) and USCIS, Handbook for Employers, M-274, available at 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 May 24, 2023). 2. Conduct a live video interaction with the individual presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the individual. The employee must first transmit a copy of the document(s) to the employer (per Step 1 above) and then present the same document(s) during the live video interaction; 3. Indicate on the Form I-9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable; 26 26 The new edition of the Form I-9 is effective on August 1, 2023. Employers may continue to use the 10/21/2019 edition of the Form I-9 from August 1, 2023 until the end of October 31, 2023. As described elsewhere in this rule and accompanying notice, if during this grace period an employer uses the 10/21/2019 edition of the Form I-9 for the alternative procedure, the employer must indicate its use of the alternative procedure by writing “alternative procedure” in the Additional Information field in Section 2. No later than November 1, 2023, employers must begin using the August 1, 2023, edition of the Form I-9. When using the August 1, 2023, edition of the Form I-9, an employer must indicate their use of the alternative procedure by completing the corresponding box in Section 2 or in the section corresponding to reverification (which is Supplement B in the August 1, 2023 edition of Form I-9), as appropriate. 4. Retain, consistent with applicable regulations, 27 a clear and legible copy of the documentation (front and back, if the documentation is two-sided); 28 and 27 See 8 CFR 274a.2(b)(3), (e), (f), (g). 28 Employers must retain and store the Form I-9 for three years after the date of hire, or for one year after employment ends, whichever is later. See 8 U.S.C. 1324a(b)(3); 8 CFR 274a.2(b)(2). Additional information for employers and employees about the Form I-9 is available at https://www.uscis.gov/i-9 (last visited June 8, 2023). 5. In the event of a Form I-9 audit or investigation by a relevant federal government official, make available the clear and legible copies of the identity and employment authorization documentation presented by the employee for document examination in connection with the employment eligibility verification process. 29 29 See 8 U.S.C. 1324a, 1324b; 8 CFR part 274a; 28 CFR part 44. DHS will monitor and evaluate data and other information from its own Form I-9 audits to assess any measurable impacts on system integrity (such as error or fraud rates). G. Pilot Additionally, this rule allows the Secretary to conduct a pilot program to acquire and assess more data. Based on this data and information, the Secretary may announce new procedures or changes to the alternative procedure. II. Discussion of Public Comments on the Proposed Rule A. Summary of Public Comments DHS received 512 public comments from a variety of persons and entities, including businesses, nonprofits, advocacy organizations, human resource professionals, and individual members of the public. DHS reviewed all the public comments received in response to the NPRM and addresses those comments in this final rule. As noted, most commenters expressed support for the proposed rule, stating that remote examination is comparable to physical examination, reduces unnecessary burdens on employees and employers, expands employers' access to eligible employees, better accommodates new workplace realities, and provides other environmental, public health, and safety benefits. A minority of the commenters expressed concern about inspecting documents remotely, including the risk of fraud. Some commenters voiced support for remote inspection but expressed concern about additional burdens related to implementation and recordkeeping. Some commenters requested additional training and guidance. B. Comments Expressing General Support 1. Reduction in Burden and Errors Comment: Some commenters stated that the rule would reduce burdens for employees and employers. Many cited the benefits of establishing a permanent optional alternative procedure, such as that it would increase the likelihood that document inspection would be completed quickly and correctly by an employer rather than by an authorized representative, would reduce costs (such as those associated with using an authorized representative) and would eliminate unnecessary travel or maintenance of on-site human resources (HR) staff. Many commenters described challenges associated with authorized representatives. Commenters stated that it is time-consuming to train and manage authorized representatives and that it is difficult to avoid errors made during the Form I-9 process even when using an authorized representative. A commenter remarked that many businesses no longer have brick and mortar offices so staffing firms are increasingly forced to rely on authorized representatives to complete physical inspections of identity and work authorization documentation for the Form I-9. Commenters explained that it is better to have someone familiar with how to properly complete the Form I-9 do so remotely, rather than to have this done by someone who is simply able to be physically present to complete the form, which often results in mistakes and delays. One commenter stated that, typically, authorized representatives are not professionals familiar with the Form I-9 process. The commenter stated that they conduct a timely second tier review of forms completed by authorized representatives and, in most situations, have to send the Form I-9 back for corrections. The commenter stated that they also have to completely trust the authorized representative to understand the gravity of their document review and attestation on the form. Another commenter listed a variety of errors made by authorized representatives, and estimated that for hires since May 1, 2022, 54 percent of authorized representatives engaged by the commenter had filled out Section 2 of the Form I-9 incorrectly. Some commenters noted that errors by authorized representatives can delay the employment start date for an employee. Commenters stated that it is burdensome to repeatedly engage new authorized representatives and provide guidance and training materials to such persons. A commenter stated that employees are sometimes hesitant to use an authorized representative due to privacy concerns. Commenters stated that compliance is easier with remote verification and employees prefer that a person who works directly for the company view their personal information. A few commenters provided the estimated costs that employers incur to use an authorized representative, which ICE has incorporated into the regulatory analysis later in this preamble. Commenters provided examples of how employers comply with document examination requirements in the absence of this rule, such as by (1) flying in new employees to the nearest office in order for a member of their HR team to advise the employee on how to complete Section 1 of the Form I-9, followed by HR staff completing Section 2 and examining the documentation on-site; (2) directing HR staff to travel long distances to multiple worksites to assist with the I-9 process; and (3) paying a third-party vendor to complete Section 2 and inspect documentation on the company's behalf at a local facility nearest to the employee. Commenters stated that these options are costly and difficult to coordinate. Commenters stated that allowing an alternative procedure for the inspection of Form I-9 documentation would create a uniform, streamlined, and less burdensome process which would enable companies to accommodate employees with remote work arrangements as well as those employees who physically report to an employer worksite. Furthermore, commenters stated that remote verification of Form I-9 documents would lower costs by streamlining HR operations and allowing companies to centralize onboarding functions and the storage of records. Commenters stated that providing basic Form I-9 and E-Verify training at each individual worksite is onerous and leaves businesses open to inadvertent non-compliance. One commenter suggested that DHS should allow employers to centralize Form I-9 processing at a single company site to ensure that the personnel conducting document examination are fully trained in the process. Additionally, commenters stated that this rule would result in increased compliance and fewer errors because it allows the employer to keep the verification within their control, rather than depending on an authorized representative for new employees with remote work arrangements. Some commenters stated that digital document retention is already embedded in company practices and guidance—particularly among E-Verify users—and that, therefore, a new requirement to retain all documentation would not pose a significant burden. Some commenters stated that although any increased investments in new technology to facilitate remote document examination may impose additional costs, an alternative procedure would still be a more affordable option compared to physical examination. Commenters stated that the implementation of a new system would, over time, be offset by the cost savings associated with not engaging in physical examination of documents. Other commenters stated that it is within DHS's authority to align the Form I-9 process with the evolving realities of U.S. workplaces. Commenters also stated that the meaning of “physical examination” should evolve to include virtual methods. Some commenters said that DHS should update the Form I-9 verification process to align with new workplace situations, like telework. Some commenters suggested that DHS remove all references to the word physical in governing regulations or define “physical examination” or “physically examine” in a way that allows employers (or their agents) to use video conferencing to examine documents. Commenters stated it is more important to have someone who is more familiar with the Form I-9 process complete the form rather than someone who is simply physically present to complete the Form I-9 for the employer but less familiar with how to properly do so. They stated that DHS should act on the meaningful opportunity to help U.S. businesses compete in the global labor market and adapt laws and regulations to align with the evolving nature of work. They asserted that an alternative procedure would result in significant time and cost savings for employers. Commenters urged DHS to authorize an alternative procedure and to pursue other Form I-9 modernization programs to meet evolving workforce needs like remote onboarding. They stated that other methods for the examination of identity and work authorization documents would help modernize the Form I-9 process, which is long overdue, and that the current in-person procedures are a roadblock to employment for many individuals. Response: DHS appreciates these comments and acknowledges that many commenters support the authorization of an alternative procedure for Form I-9 document examination. DHS acknowledges that the use of an alternative procedure by qualified employers and their employees may alleviate some of the challenges associated with the current process, such as finding authorized representatives and requiring new employees to travel long distances to submit their Form I-9 documentation. Although some of the commenters shared suggestions that are beyond the scope of this rule, such as removing the term “physical” in the regulation, DHS believes that establishing an optional alternative procedure aligns with many of the sentiments expressed. 2. Accessibility Comment: Commenters indicated that remote inspection would remove barriers for eligible employees who are disabled and for whom it is difficult or impossible to travel to an office. A few commenters stated that an alternative procedure is needed for physically disabled employees and others so that they are no longer burdened by having to travel to complete the Form I-9 process in-person. Commenters also stated that the proposed rule would create a more inclusive environment for those who are financially disadvantaged or otherwise unable to travel by allowing them to complete the Form I-9 process online. Commenters stated that an alternative procedure would align with the benefits of remote work for individuals who live in rural areas or have a job that does not require them to report regularly to a single location, such as a construction worker or a home health aide. Response: DHS acknowledges that there could be several benefits for employees who experience difficulties with the current Form I-9 process and agrees with the sentiments expressed by these commenters. DHS acknowledges, in particular, the value of producing an inclusive environment, including for physically disabled employees, to the extent consistent with law. DHS appreciates and acknowledges that many commenters support the authorization of an alternative procedure for Form I-9 physical examination because travel may be difficult or impossible for some employees. C. Comments Expressing General Opposition 1. Need for the Rule Comment: Some commenters stated that, because there is no longer a public health emergency, there is no need for the change. Another commenter stated that an emergency should not change the requirements for Form I-9 processing. A commenter stated that DHS overstated the burden of completing the Form I-9, because employees who telework on a normal basis can nonetheless visit the employer's place of business in person once to have their documents examined. Response: DHS acknowledges the commenters' concerns. As stated in the NPRM, this final rule, and the accompanying Federal Register notice, DHS believes that an optional alternative method for examining the documentation presented by individuals seeking to establish identity and employment authorization can offer an equivalent level of security and that its use may alleviate some of the challenges associated with the current process, such as finding authorized representatives or requiring employees to travel long distances to submit their Form I-9 documentation. The rule also codifies a mechanism under which DHS can be more responsive and nimble when addressing public health or national emergencies. 30 DHS believes this rule aligns with new workplace realities. With respect to the concurrently published alternative procedure, DHS believes the combination of requiring E-Verify participation, fraud awareness training, expanded document retention (to include clear and legible copies of the identity and employment authorization documents presented by employees to complete the Form I-9), and live video interaction like remote videoconferencing for real-time verification, offers an equivalent level of security to physical examination. DHS agrees that for some employers and employees, the burden of traveling to a physical office to present documents can be low. DHS understands that some employees are fully remote and live long distances from their home office, some employers do not have a physical workspace at all, and some employers use contracted firms to perform human resource functions that are not located in the same geographic vicinity. DHS also understands that for some employers, there are significant efficiencies to be gained by using the alternative procedure. 30 Either 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). 2. Fraud Comment: Some commenters who expressed opposition stated that, without a physical examination of Form I-9 documents, the occurrence of fraud associated with unreliable documents would increase. For instance, commenters said that counterfeit documents could pass with ease through electronic inspection procedures, leaving U.S. workers' jobs unprotected. One commenter stated that remote document examination increases the likelihood that an employee will present fraudulent documents to support their claim of work authorization and give corrupt employers additional cover to knowingly hire unauthorized workers in violation of statute. Some commenters suggested DHS instead expand worksite enforcement efforts or rescind other policies. Another commenter stated that DHS should explore the potential negative impacts of a change before moving forward. The commenter cited the “unprecedented numbers of illegal alien apprehensions and encounters along the southern border and the ever-growing crisis that we are presently witnessing.” This commenter stated that any procedure that diminishes the current Form I-9 verification process will be exploited by smugglers, traffickers, and unscrupulous employers and will erode the intent of the underlying statute that aims to ensure that only authorized individuals can work in the United States. Response: DHS shares commenters' concern for the integrity of the employment verification system. As stated in the NPRM, in this final rule, and in the concurrently published Federal Register notice describing the alternative procedure, DHS is authorizing an optional alternative method for examining the documentation presented by individuals seeking to establish identity and employment authorization that ensures at least an equivalent level of security. The intent of this final rule and the accompanying alternative procedure is not to weaken employment verification requirements or negatively impact U.S. workers; it is to acknowledge new workplace realities and create a more regular mechanism for making compliance easier. This rule does not change the employer's responsibility to ensure that documents appear to be genuine and relate to the individual presenting them. DHS recognizes that physically examining identity and employment authorization documents offers important security benefits to help evaluate whether the document reasonably appears to be valid and to relate to the person who presents it. Employers who physically examine identity and employment authorization documents can touch and more clearly see identification security features like holograms and microprinting, as well as the card stock on which certain documents are printed. Remote document examination, by itself does not provide this level of detailed inspection. However, DHS believes the combination of limiting participation to E-Verify participants in good standing, fraud awareness training, expanded document retention requirements (to include clear and legible copies of all the identity and employment authorization documents presented by employees to complete the Form I-9), and live video interaction after the employee transmits a copy of the document(s) to the employer to verify that the document relates to the person presenting it, offers important benefits that are absent in the standard physical examination process, providing at least an equivalent level of security to physical examination. As it relates to E-Verify specifically, E-Verify electronically compares information entered by an employer from an employee's Form I-9, Employment Eligibility Verification, to records available to DHS and the Social Security Administration (SSA) to confirm the validity of identity and employment authorization documents. E-Verify confirms List A documents that evidence identity and employment authorization, such as U.S. passports, Permanent Resident Cards, and Employment Authorization Documents (EADs), and electronically sends the photograph from the official record to the employer to compare with the photo on the document provided by the employee. E-Verify requires all cases to include the employee's Social Security number (SSN), and E-Verify electronically compares employer-entered data with SSA records. E-Verify requires that all List B identity documents presented by employees contain a photo and uses data sources available to DHS to electronically verify the identity information provided on most state-issued identification cards and driver's licenses. E-Verify proactively prevents processing of SSNs that are known to have been used fraudulently. Further, the E-Verify tutorial, which is required of all E-Verify users, ensures that E-Verify users are informed about fraudulent documents, anti-discrimination, and other Form I-9 employer responsibilities, compared to employers who just use the Form I-9 and do not receive such training. Retention of all documents, which is not required for Form I-9 alone, ensures that ICE can review all documents for fraud in case of an ICE Form I-9 audit. Finally, the requirement for a live video interaction after the employee transmits a copy of the document(s) to the employer provides a further measure of assurance that the document(s) presented by the employee relates to the employee. The measures required by the alternative procedure mitigate risk of increased fraud associated with remote examination of documents under the alternative procedure, including the possible use of counterfeit documents. DHS has no reason to believe that the alternative procedure described in this rule would result in an increased use of fraudulent documents as compared to a circumstance under which employers or their authorized representatives physically examine documents without confirming such documents or related information, receiving any training, or retaining copies of documents. Given the intangible benefits of physical inspection and DHS's lack of data to assess the impact of the Form I-9 flexibilities, DHS is proceeding with an alternative procedure that includes additional requirements that offers at least an equivalent level of security. Additionally, the final rule authorizes the Secretary to conduct a pilot program to acquire and assess more data. DHS will evaluate all data and information collected through ICE Form I-9 audits and pilot programs to ensure the security of alternative procedures. DHS will also monitor and evaluate data and information from ICE's Form I-9 audits conducted after the implementation of this alternative procedure to assess any measurable impacts to system integrity between the alternative procedure and the physical examination of Form I-9 documents. DHS remains vigilant in monitoring and enforcing compliance with the requirements of the Form I-9 so unauthorized workers and unscrupulous employers do not exploit the Form I-9 process. Given the current lack of data, DHS believes these requirements appropriately address concerns about the potential for increased fraud in the Form I-9 process while allowing some employers to have access to this alternative procedure. Comment: A commenter asserted that an alternative procedure would not comply with best practices and standards as set by the National Institute of Standards and Technology (NIST) Special Publication 800-63A, Digital Identity Guidelines: Enrollment and Identity Proofing Requirements, section 5.3.3.2 (Requirements for Supervised Remote In-person Proofing). The commenter asked whether the government is required to follow NIST standards when having individuals interact with its systems, such as E-Verify. Response: Consistent with the Federal Information Security Management Act of 2002, as amended, 31 and applicable OMB memoranda, 32 DHS is required to ensure that identity proofing for Federal digital services provided to public consumers complies with NIST guidance and Government-wide identity, credential, and access management requirements. 33 Current NIST guidance is contained in Special Publication 800-63-3, Digital Identity Guidelines. 34 DHS is working towards compliance with these and future standards. 31 See Public Law 107-347 (codified as amended at 44 U.S.C. 3551 et seq. ). 32 See OMB Memorandum for Heads of Executive Departments and Agencies, Enabling Mission Delivery through Improved Identity, Credential, and Access Management (M-19-17). See also OMB Memorandum for the Heads of Executive Departments and Agencies, Modernizing Access to and Consent for Disclosure of Records Subject to the Privacy Act (M-21-04). 33 See id. at 9. 34 The NIST Special Publication 800-63-3 is a suite of documents that cover enrollment (NIST 800-63-3— Digital Identity Guidelines, NIST 800-63A— Enrollment and Identity Proofing, NIST 800-63B— Authentication and Lifecycle Management, and (NIST 800-63C— Federation and Assertions ), available at https://www.nist.gov/identity-access-management/nist-special-publication-800-63-digital-identity-guidelines (last visited May 24, 2023). The NIST standards provide minimum requirements for remote identity verification prior to access to federal agency systems, but the NIST standards do not govern the current employment verification process or the alternative procedure discussed in this rule and accompanying Federal Register notice. The applicable statutory and regulatory requirements for employment authorization require the employer or their authorized representative to examine the documents presented by the employee. See 8 U.S.C. 1324a(b)(1); 8 CFR 274a.2(b)(1). There is no requirement for the employee to access a federal agency system in order to either interact with the employer or present their relevant identity documents during a live session as part of the alternative procedure. As such, the NIST standards for remote identity proofing do not apply to the I-9 document examination process itself. Applicable regulations at 8 CFR part 274a only require physical examination of the documents presented by the employee to the employer to comply with the I-9 requirements. D. Legal Authority 1. Immigration and Nationality Act (INA) Comment: Some commenters expressed concern that the rule would undermine statutory assurances that only authorized individuals can work in the United States. A commenter stated that the law states that employers must physically examine workers' documents to establish the workers' identity and work authorization status. This commenter suggested that the requirement to physically examine documents and determine their authenticity precludes employers from reviewing documents solely through electronic means. Commenters stated that the proposed rule was vague and the provision on “an equivalent level of security,” as determined by the Secretary, did not offer employers an understanding of the procedure. Response: The relevant statutory provision refers to the employer's duty to “examin[e]” or undertake an “examination” of documents without qualification as to the manner in which such examination must be performed. See 8 U.S.C. 1324a(b)(1). Specifically, the statute requires that any employer who hires, recruits, or refers an individual for employment in the United States make certain attestations about the employee's employment eligibility status “. . .after [the] examination of documentation” that would establish the individual's identity and employment authorization (8 U.S.C. 1324a(b)(1)). It is the implementing regulations found at 8 CFR 274a.2(b)(1)(ii)(A) that require an employer or an authorized representative acting on the employer's behalf to “[p]hysically examine” the documentation offered by the employee to establish identity and employment authorization. DHS is using its regulatory authority through this rulemaking to authorize an optional alternative to the in-person physical document examination method employers have followed as part of the Form I-9 process set forth in current regulations. With respect to the commenters' opinion that the rule is unduly vague, DHS maintains that the NPRM stated a goal and standard. The NPRM stated that DHS was proposing to create a framework under which the Secretary could authorize alternative options for Form I-9 document examination procedures with respect to some or all employers. DHS requested and welcomed comments on the effects of the changes with respect to employers, employees, and 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. See, e.g., 87 FR at 50790. After careful consideration of the comments received, DHS describes, in this final rule and in an accompanying Federal Register notice, the framework for an alternative procedure that incorporates suggestions from commenters. DHS has implemented various requirements in the alternative procedure to offer an equivalent level of security. In addition, consistent with the NPRM and the alternative procedure contained in accompanying Federal Register notice, DHS has expanded upon the equivalence concept in regulatory text of this final rule. Whereas the proposed rule conditioned the issuance of permanent alternative procedures upon the Secretary's determination that such procedures offer an equivalent level of security, see 87 FR at 50794, DHS has, following review of the above comments, clarified that the level of security must be equivalent to that of physical examination as indicated by, for instance, observed measures of system integrity (such as error or fraud rates) or the procedure's capacity for confirming certain documents or information. See 8 CFR 274a.2(b)(1)(ix)(B). The alternative procedure contained in the accompanying Federal Register notice is consistent with the latter example. DHS will evaluate data and information from ICE's Form I-9 audits to assess any measurable impacts to system integrity (such as error or fraud rates) in connection with the accompanying alternative procedure or a future such procedure. DHS remains vigilant in monitoring and enforcing compliance with the requirements of the Form I-9 regardless of the permissible procedure an employer uses to examine employees' identity and employment authorization documentation. Additionally, the final rule authorizes the Secretary to conduct a pilot program to acquire and assess more data. DHS will evaluate all data and information collected through ICE audits and pilot programs with a continued goal of expanding the availability of an alternative procedure to the widest group of employers while balancing the security of any alternative procedures implemented under the rule. The Secretary will announce any such pilot programs, new procedures, or changes to this alternative procedure in the future. Comment: A commenter objected to the suggestion that only an alternative procedure must offer an equivalent level of security, whereas pilot procedures and procedures to respond to a public health emergency or national emergency would not. The commenter stated that under 8 U.S.C. 1324a(d)(2), any changes to the employment verification system (including, for instance, temporary measures to address a public health emergency under proposed 8 CFR 274a.2(b)(1)(iv)(C)) must meet certain requirements, as set forth in 8 U.S.C. 1324a(d)(2)(A)-(G). The commenter stated that the Public Health Service Act and the National Emergencies Act provides no basis to avoid these requirements. Response: The requirements of § 1324a(d)(2)(A)-(G) do not apply to this rulemaking, because this rulemaking is not issued under § 1324a(d)(1). Under § 1324a(d)(1), the President or the President's designee may implement such changes in (including additions to) the requirements of § 1324a(b) as may be necessary to establish a secure system to determine employment eligibility in the United States. See 8 U.S.C. 1324a(d)(1)(B). But as explained earlier in this section of the preamble, this rule and the accompanying Federal Register notice do not make any changes to the requirements of § 1324a(b), and therefore need not invoke the authority at § 1324a(d)(1). This rule relates solely to the physical examination of documents, which is a regulatory requirement, and is not a requirement of § 1324a(b). See, e.g., 8 U.S.C. 1324a(b)(1)(A) (referencing examination but not physical examination). This rule exercises the Secretary's authorities under 8 U.S.C. 1103(a)(3), 1324a(b)(1)(A). DHS is nonetheless cognizant of the considerations listed in § 1324a(d)(2)(A)-(G) and has authorized an alternative procedure that offers an equivalent level of security without undermining privacy and other considerations, consistent with the congressional purpose underlying those and other provisions. DHS has no immediate plans to authorize an additional procedure to address a public health emergency or national emergency, as was necessary during the COVID-19 pandemic, but if DHS does so, DHS will act with similar considerations in mind. 2. Administrative Procedure Act (APA) Comment: Commenters stated that the NPRM did not allow the public to assess the efficacy of, or provide meaningful input on, the alternative procedure. A commenter inquired whether DHS had already developed the alternative verification option it alluded to in the NPRM and stated that, if such an approach had been created, DHS should provide information to the public as part of this rule. Commenters stated that failing to provide the public an opportunity to comment on the alternative procedure is inconsistent with DHS's duty to give interested persons an opportunity to participate in rulemaking through submission of written data, views, or arguments. Response: This rulemaking fully complies with the APA. As noted above, on August 18, 2022, DHS published an NPRM, Optional Alternatives to the Physical Document Examination Associated with Employment Eligibility Verification (Form I-9), 87 FR 50786, and provided the public 60 days to comment on the proposed changes. The NPRM clearly stated a “reference to the legal authority under which the rule is proposed,” see 5 U.S.C. 553(b)(2), and “the terms and substance of the proposed rule or a description of the subjects and issues involved,” see 5 U.S.C. 553(b)(2). Specifically, DHS described— • the legal authority for the Form I-9 and the employment authorization verification system, see 87 FR at 50786-50787, 50794; • the requirements of existing regulations and the flexibilities announced following the onset of the COVID-19 pandemic, see 87 FR at 50787-50789; • the clear need for a framework under which to authorize optional alternative procedures that could make permanent some of the COVID-19 pandemic-related flexibilities, see 87 FR at 50789-50790; • Specific potential conditions for such alternative procedures, including integrity measures such as document retention requirements, training, and E-Verify participation, see 87 FR at 50790; and • Examples of potential effects of an alternative procedure, see 87 FR at 50791. Consistent with the above explanation, DHS proposed to revise the language in 8 CFR 274a.2 to allow the Secretary to authorize an optional alternative to the in-person physical document examination method that employers have followed as part of the Form I-9 process set forth in current regulations, and that such procedures may be adopted 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 or a national emergency declared by the President. See 87 FR at 50794. DHS also proposed changes to the Form I-9 and its accompanying instructions that would allow employers to indicate that alternative procedures were used if one was authorized. See 87 FR at 50792. DHS welcomed comments on the effects of the 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. See, e.g., 87 FR at 50790. By the end of the comment period in October 2022, DHS had received 512 public comments, the vast majority of which expressed support for the NPRM. Many comments provided suggestions that are consistent with this final rule and the alternative procedure announced in the accompanying Federal Register notice. Consistent with the NPRM, this final rule responds to public comments and amends 8 CFR 274a.2 to allow the Secretary to authorize an optional alternative to the in-person physical document examination method employers have followed as part of the Form I-9 process set forth in current regulations. In addition, consistent with the NPRM, DHS is announcing an optional alternative procedure featuring a number of the specific integrity measures described in the NPRM. As recognized in the NPRM, DHS believes this rule aligns with new work arrangements for qualifying employers' employees. DHS believes the combination of requiring E-Verify participation, fraud awareness training, expanded document retention (to include clear and legible copies of the identity and employment authorization documents presented by employees to complete the Form I-9), and live video interaction after the employee transmits a copy of the document(s) to the employer for real-time verification offers at least an equivalent level of security to physical examination. Comment: A commenter stated that any reform to the Form I-9 document examination process would directly affect how U.S. employers must comply with statutory verification requirements and that, therefore, any such change should be considered subject to the APA's notice-and-comment requirements. Other commenters recommended that DHS provide relief from the physical inspection burden now, rather than at some uncertain point in the future or after a second round of notice-and-comment. A commenter stated that the NPRM was so broad that it could allow the Secretary to implement—or not implement—any remote inspection process by notice without the prospect of public input. Commenters stated that the substantive changes resulting from this rule could come by “guidance,” rather than regulation, which according to the commenter would amount to a violation of the APA. Response: Neither this final rule nor the accompanying optional alternative procedure changes the statutory or regulatory requirements for employment eligibility verification. The alternative procedure will provide qualified employers with an option other than physical in-person examination. The alternative procedure will not, however, eliminate the core regulatory option of physical examination, for either the employer or the employee. Similarly, a future authorization by the Secretary to bypass the regulatory requirement to “physically” examine documents, whether as part of a pilot or as a temporary measure to address a public health emergency or national emergency, would leave existing regulations in place while a single regulatory requirement is waived under certain conditions and for a specific period. DHS will solicit feedback from the public again as appropriate and consistent with law prior to implementing any permanent changes to the Form I-9 document examination process, including additional alternative procedures. Any such changes will be noticed in the Federal Register . Partly in response to the above comments, DHS has revised the regulatory text accordingly. See 8 CFR 274a.2(b)(1)(ix). Comment: A commenter stated that because DHS did not accept comments on the NPRM by mail, it failed to provide an opportunity to comment to the subset of the population that neither owns nor has access to a computer and/or internet service. Response: Although the NPRM stated that “comments submitted in a manner other than the Federal eRulemaking Portal, including emails or letters sent to DHS, will not be considered comments,” 87 FR at 50786, DHS provided an alternative method to allow members of the public without access to a computer or internet a way to provide comments by listing a telephone number and address for a person to contact for alternate instructions on how to submit comments, see id. In doing so, DHS ensured that all interested parties were provided an adequate opportunity to comment on the NPRM. E. The Alternative Procedure and Proposed Integrity Measures 1. Timing of the Alternative Procedure Comment: Some commenters encouraged the authorization of a permanent alternative procedure as soon as possible, and emphasized that employers will be more likely to find the alternative procedure useful if it is in place permanently. A commenter asked when the Secretary would decide on an alternative procedure, and whether that would only be after a pilot program was completed. A commenter asked about what employers should do regarding remote worker verification until such time as the Secretary decides on an alternative procedure. A commenter asked what employers should do regarding remote worker verification until such time as the Secretary decides on an alternative procedure. Commenters stated that DHS should allow a reasonable period for employers to update their systems and forms to align with the change and should extend the current version of the form until the alternative procedure is finalized to reduce any disruptions to company operations. Response: At this time, the Secretary is authorizing a permanent optional alternative procedure as outlined in the accompanying Federal Register notice. The Secretary has determined that it is not necessary to first conduct a pilot program due to the integrity measures included in the alternative procedure, as explained further below and in the accompanying Federal Register notice describing the alternative procedure. The alternative procedure includes transition measures under which employers may implement the procedure prior to transition to the new Form I-9. 35 However, the Secretary may authorize a pilot program to explore other optional alternative procedures or collect additional data. 35 The new edition of the Form I-9 is effective on August 1, 2023. Employers may continue to use the 10/21/2019 edition of the Form I-9 from August 1, 2023 until the end of October 31, 2023. As described elsewhere in this rule and accompanying notice, if during this grace period an employer uses the 10/21/2019 edition of the Form I-9 for the alternative procedure, the employer must indicate its use of the alternative procedure by writing “alternative procedure” in the Additional Information field in Section 2. No later than November 1, 2023, employers must begin using the August 1, 2023, edition of the Form I-9. When using the August 1, 2023, edition of the Form I-9, an employer must indicate their use of the alternative procedure by completing the corresponding box in Section 2 or in the section corresponding to reverification (which is Supplement B in the August 1, 2023 edition of Form I-9), as appropriate. 2. Changes to the Form I-9 and Tracking Use of the Alternative Procedure Comment: A commenter asked if employers are expected to request permission to use an alternative procedure and, if so, how they would make such a request. Some commenters suggested that DHS should track the use of the alternative procedure and completion of the Form I-9 to understand any added risks. A commenter supported the proposal to add a checkbox to the Form I-9 for this purpose but recommended that the checkbox be added to the Employer Certification field rather than the Additional Information field. Commenters stated that the complexity of the Form I-9 provides opportunities for user error so any modifications to the Form I-9 related to the alternative procedure should favor simplicity. Some commenters stated that employers need assistance in completing the new version of the Form I-9. Response: As proposed, DHS is adding a box to the Form I-9; employers will use the box to document the use of a DHS-authorized alternative procedure. DHS decided to place the box in the Additional Information field to ensure the overall length of the Form I-9 did not increase. DHS has updated the Form I-9 instructions and E-Verify training materials to ensure employers have resources available to accurately complete the new version of Form I-9. Comment: A commenter asked about what would occur if an employer used the remote inspection procedure but failed to indicate that it had done so on the revised Form I-9. A commenter asked if employers or authorized representatives completing Section 2 of the Form I-9 by hand would need to physically see Section 1 first, or if they could view an electronic copy of a Form I-9 containing the completed Section 1 instead. Response: DHS is updating the Form I-9 to add a box to be completed by employers to indicate if an alternative procedure was used for Section 2 or for reverification. The qualified employer (or an authorized representative acting on an employer's behalf) must select whether the employee's documentation was examined consistent with the alternative procedure. Employers or authorized representatives must review the information entered in Section 1 of the Form I-9 and ensure that employees (and their preparer/translator, if applicable) fully and properly completed Section 1. 36 Form I-9 can be electronically generated or retained, provided that the resulting form is legible; there is no change to the name, content, or sequence of the data elements and instructions; no additional data elements or language are inserted; and the standards specified under 8 CFR 274a.2(e), (f), (g), (h), and (i), as applicable, are met. 37 36 See Handbook for Employers M-274, § 3.0, available at https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274 (last visited May 24, 2023). 37 See 8 CFR 274a.2(a)(2). As stated on the Form I-9, employers are liable for errors in the completion of the form. Therefore, employers should read the accompanying Federal Register notice carefully to understand the applicable requirements of the alternative procedure. Employers are also encouraged to refer to the information and guidance about applying the alternative procedure on I-9 Central. Furthermore, E-Verify and I-9 Central provide free, online webinars, training, and various resource materials to ensure employers have the necessary information to assist in enrolling in E-Verify or completing the Form I-9. 3. E-Verify Supporting E-Verify Comment: Some commenters expressed support for limiting the eligible population of employers who may use the alternative procedure to employers enrolled in and in good standing in E-Verify. Commenters listed several benefits of using E-Verify, such as the rapid confirmation of documents and information presented by employees, existing policies on the retention of copies of certain documentation, increased fraud detection, improved efficiency of internal audits, and decreased burdens on employers. Commenters suggested that DHS resume worksite audits and increase information sharing with the Internal Revenue Service (IRS) and Social Security Administration (SSA) to ensure employers' compliance with federal labor and immigration laws. A commenter suggested that documents presented for the Form I-9 could be maintained in E-Verify and a reverification request could be submitted when documents expire and need to be renewed. Commenters suggested that E-Verify provide statistics for participating employers during a pilot period and provide a photograph match by linking photos from government agencies that issue photo identification. Response: DHS agrees with commenters that an employer's participation in good standing in E-Verify provides meaningful security benefits. At this time, E-Verify-enrolled employers in good standing will be eligible to use the alternative procedure. However, nothing prevents an employer from continuing to physically examine documents presented for the Form I-9 38 and not applying the alternative procedure. 38 A qualified employer does not need to use the alternative procedure, but if a qualified employer chooses to apply the alternative procedure to some employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site, without discrimination. However, a qualified employer may choose to continue to offer the alternative procedure for remote hires only but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity, so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on a protected characteristic, i.e., their citizenship, immigration status, or national origin. See 8 U.S.C. 1324b(a)(1). E-Verify-enrolled employers confirm the employment eligibility of their employees by electronically comparing information from an employee's Form I-9 with records available to DHS. Specifically, E-Verify confirms identity and employment eligibility for List A documents such as U.S. passports, Permanent Resident Cards, and EADs, and electronically sends the photograph from the official record to the employer to compare with the photo on the document provided by the employee. E-Verify requires all cases to include the employee's SSN, and E-Verify compares employer-entered data with SSA records. E-Verify proactively prevents processing of SSNs that are known to have been used fraudulently. Finally, E-Verify requires that all List B documents presented by employees contain a photo and uses data sources available to DHS to verify the identity information provided on most state-issued identification cards and driver's licenses. Because employment authorization and identity verification are processed concurrently, the enrolled employer usually receives a response from E-Verify within a few seconds that either confirms employment eligibility or indicates that further action is needed to complete the case. DHS currently assesses that limiting eligibility for the alternative procedure to qualified employers, coupled with various requirements as outlined in the Federal Register notice, is necessary to ensure an equivalent level of security to the physical examination of Form I-9 documents. For this reason, DHS has determined that, as a condition for participation in the alternative procedure, only those employers enrolled and participating in good standing in E-Verify may use the alternative procedure. Participant in good standing in E-Verify refers to an employer that has enrolled in E-Verify with respect to all hiring sites in the United States that use the alternative procedure; is in compliance with all requirements of the E-Verify program, including but not limited to verifying the employment eligibility of newly hired employees in the United States; and continues to be a participant in good standing in E-Verify at any time during which the employer uses the alternative procedure. Employers opting to use the alternative procedure at one or more hiring sites must not adopt a practice for a discriminatory purpose of treating employees differently based on a protected characteristic. Treating employees differently based on these criteria would violate the INA's anti-discrimination provision, 8 U.S.C. 1324b, and may violate or other federal, state, or local laws. Qualified employers will not be required to prove their compliance with Form I-9 requirements before using the alternative procedure but as stated in this final rule, an E-Verify-enrolled employer who is not in good standing ( e.g., not in compliance with the E-Verify Memorandum of Understanding) is ineligible to use the alternative procedure. DHS continues to explore ways to improve the Form I-9 process and E-Verify, including how to improve compliance. DHS agrees that worksite audits and increased information sharing with government partners are critical elements in assisting employers to maintain compliance with Form I-9 requirements. Although DHS is confident that the alternative procedure offers at least an equivalent level of security, DHS will monitor and evaluate data and information from ICE's Form I-9 audits after the implementation of this alternative procedure to assess any measurable impacts to system integrity (such as error or fraud rates) and, based on this information, the Secretary may announce new procedures or requirements, implement a pilot program to collect further data, or seek public comment thereon, as appropriate, in the Federal Register . Opposing E-Verify Comment: Some commenters opposed allowing only E-Verify-enrolled employers to use an alternative procedure because that would increase burdens on other employers who are otherwise compliant with the Form I-9 requirements but who do not use E-Verify. Commenters stated that small businesses in particularly would be burdened by a requirement to use E-Verify. A commenter stated that E-Verify lacks the capacity to support a large influx of users on its system, citing an August 2021 report that according to the commenter stated that the then-current capacity of E-Verify was only 10,430 concurrent users with a projected goal of 29,515 concurrent users. 39 The commenter expressed concern about E-Verify's ability to function properly at increased capacity, and recommended that before incentivizing a large-scale increase in potential E-Verify usage, DHS test and confirm the capacity of E-Verify to scale up sufficiently to meet the demands of all existing and potential users. Another commenter suggested that to the extent that E-Verify enrollment is a condition for participation in the alternative procedures, it would encourage a phased roll-in process based on employee headcount, company revenue thresholds, or both. 39 See DHS, Office of Inspector General, OIG-21-56, USCIS Needs to Improve Its Electronic Employment Eligibility Verification Process (Aug. 23, 2021). Another commenter stated that the hourly cost and burden of completing the E-Verify new user tutorial “can be substantial,” particularly for compliant employers with high turnover, no internal HR team, or prospective employees who may distrust the E-Verify system. Another commenter stated that the use of E-Verify is not required by federal law, that an alternative procedure available only to E-Verify participants would effectively render E-Verify use mandatory for some employers, and that, for some, E-Verify creates an additional “hardship” with no impact on an employer's obligation to review Form I-9 documents. Another commenter remarked that requiring employers to be enrolled in E-Verify as a condition for using the alternative procedure overlooks that many employers need relief from physical examination requirements. Response: Employers who are already enrolled in E-Verify are not required to re-enroll in E-Verify to use the alternative procedure, and E-Verify has the capacity to support an increased number of employers who may choose to newly enroll in E-Verify to use the alternative procedure. E-Verify does not replace the examination of Form I-9 documents and completion of the Form I-9. E-Verify supports the employer by comparing information entered by an employer from an employee's Form I-9 to records available to DHS, including those maintained by the SSA, to confirm the employee's identity and employment eligibility. Because employment authorization and identity verification are processed concurrently, the enrolled employer usually receives a response from E-Verify within a few seconds that either confirms employment eligibility or indicates that further action is needed to complete the case. E-Verify prioritizes security interests, limits the risk of fraud, mitigates verification errors, helps employers maintain compliance, and protects the worker from unfair employment competition. DHS disagrees that E-Verify imposes substantial burdens on large or small employers, and DHS currently assesses that enrollment in and use of E-Verify related to an alternative procedure to examine identity and work authorization documents is necessary to maintain an equivalent level of security. Employers who choose to use the alternative procedure will only do so if the benefits of doing so outweigh the costs. Over 1.1 million employers, representing varying workforce sizes and all types of U.S. industries, are already enrolled in E-Verify 40 and DHS estimates that employers created E-Verify cases for nearly 62% of new hires in the United States in fiscal year 2022. 41 The program is responding to the aforementioned August 2021 report to demonstrate improved scalability to handle increases in query volume and continuously pursuing technical improvements to increase and improve automation and streamline case processing. The alternative procedure itself does not require or permit the employer to use E-Verify to confirm the identity and employment authorization of existing employees, but only of new hires, 42 unless the employer is a federal contractor and is required to by the Federal Acquisition Regulation (FAR) E-Verify clause. 43 DHS estimates that the one-time E-Verify enrollment process takes new participants 2.26 hours to enroll review and sign the Memorandum of Understanding (MOU), review the user guides, and complete the tutorial. 44 DHS estimates one hour for each additional user for an enrolled employer to complete the tutorial. 45 Finally, nothing in this final rule requires an employer who is already enrolled in E-Verify to use the alternative procedure or for their employees to complete the tutorial more than once. 40 USCIS, E-Verify Usage Statistics, https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-usage-statistics (last updated Jan. 12, 2023) and USCIS, How To Find Participating Employers, https://www.e-verify.gov/about-e-verify/e-verify-data/how-to-find-participating-employers (last updated Jan. 12, 2023). 41 According to the U.S. Department of Labor, Bureau of Labor Statistics, there were approximately 77.6 million new hires in fiscal year 2022 ( https://www.bls.gov/bls/news-release/jolts.htm ) compared to 48.0 million queries processed through the E-Verify system in the same period available at https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance (last visited June 8, 2023). 42 In the case of reverification, a qualified employer that applies the alternative procedure would examine documents remotely according to the alternative procedure but would not create a new case in E-Verify. 43 The FAR E-Verify clause, found at 48 CFR, Subpart 22.18, requires federal contractors verify all new hires and existing employees assigned to the federal contract. Federal contractors may also opt to verify their entire workforce with E-Verify. 44 See USCIS, Supporting Statement for E-Verify Program (OMB Control No. 1615-0092) (uploaded May 20, 2023), available at https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=202305-1615-001 (last visited May 20, 2023). 45 See id. DHS will monitor and evaluate data and information from ICE's Form I-9 audits conducted after the implementation of this alternative procedure to assess any measurable impacts on system integrity (such as error or fraud rates). Given the absence of reliable data at this time, DHS believes that the requirements outlined in this final rule and in the accompanying Federal Register notice appropriately address concerns about the risks of increased fraud. 4. Document Retention Comment: Several commenters expressed that document retention requirements would increase burdens and/or costs to employers and that employers may face challenges with respect to the secure and efficient storage of electronic documentation as a result of any new process. Commenters asserted that it is unfair to assume that all businesses have the resources to store physical and electronic records for all employees in a way that prevents sensitive information from being stolen or compromised. Another commenter said that clarification about such requirements would be expected with the emergence of new technologies, such as new and more secure ways to send and store documents electronically. A commenter expressed concern about the unsecured transmission of document images under the alternative procedure, noting that document images contain sensitive personal information, and that employers may be subject a range of laws and regulations intended to protect employee privacy. Some commenters stated that a new requirement for employers to retain copies of all documents presented for the Form I-9 would amount to a requirement stricter than the law requires. A commenter stated that employers are not required to prove that a document is “real”; rather, the issue is whether documents can be examined remotely to determine if they reasonably appear to be genuine and associated with the employee who presents them. Another commenter stated that retaining copies only indicates that an employer has seen the presented documents, not whether they conducted a compliant document examination. Some commenters suggested that DHS should require that remote verification be conducted with a video link, rather than by transmitting the document through email, fax, or another cloud-based medium. The commenters stated that document transmission and verification via video would align with statutory and regulatory requirements because the employer (or the employer's authorized representative) could see the employee and confirm that the documents both reasonably appear to be genuine and related to that individual. Response: DHS understands that the retention of all identity and employment authorization documentation examined by an employer to complete the Form I-9 may add administrative and operational burdens such as intake, storage, and handling of documents, and may require the employer to expend some economic resources. However, examination of documentation using an alternative procedure rather than a physical in-person examination provides direct and immediate cost savings and operational efficiencies, such as the reduced costs associated with needing to use an authorized representative and increased opportunities to centralize document examination functions. The requirement to retain all identity and employment eligibility documentation examined by an employer to complete the Form I-9 is only applicable to the alternative procedure. If an employer believes that applying the alternative procedure is burdensome, nothing prevents the employer from physically examining Form I-9 documents under longstanding regulatory procedures. See 8 CFR 274a.2(b)(3). To ensure the security of the alternative procedure, DHS is requiring any qualified employer who chooses to use the alternative procedure to retain clear and legible copies of any of the Form I-9 documents presented to establish identity and employment authorization. This retention requirement allows DHS to assess the documents that were presented to, and remotely examined by, the employer in the event of an audit, and help to determine whether the documents examined by the employer reasonably appeared on their face to be genuine and to relate to the employee, that the employer has not discriminated against employees, and that the employer has complied with other Form I-9 requirements as required by statute (8 U.S.C. 1324a(b)(1)(A)(ii)) and regulation (8 CFR 274a.2(b)(1)(ii)(A)). A qualified employer does not need to use the alternative procedure, but if a qualified employer chooses to offer the alternative procedure for some employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site. However, a qualified employer may choose to offer the alternative procedure for remote hires only but continue to use physical examination procedures for all employees who work onsite at an employer worksite or in a hybrid capacity, so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on a protected characteristic. 46 Under no circumstances can employers unlawfully discriminate, such as by deciding who is eligible for the alternative procedure based on a protected characteristic. 47 For employees whose documents are examined via physical examination under the longstanding regulations, the document retention requirements of the alternative procedure do not apply. 46 See, e.g., 8 U.S.C. 1324b(a)(1), which prohibits discrimination based on citizenship, immigration status, and national origin. 47 See 8 U.S.C. 1324b(a)(1). With respect to the suggestion that some businesses may lack the resources to store physical and electronic records for all employees in a way that prevents sensitive information from being stolen or compromised, DHS notes that businesses that choose to adopt the alternative procedure would likely have already adapted their business practices consistent with general Form I-9 document storage and retrieval requirements, see, e.g., 8 CFR 274a.2(b)(3) (option to store certain documentation with the Form I-9), (e) (standards for electronic retention of Form I-9), (f) (documentation of certain business processes), and (g) (implementation of an effective records security program). Copies retained under the alternative procedure must meet these standards. In addition, under existing procedures, E-Verify participants must photocopy and retain certain documents if the employee voluntarily provided them for Section 2 of the Form I-9. 48 For these reasons, the additional burden on the employer to manage copies of documents securely and effectively will typically not be high. DHS agrees with commenters that employers have an incentive to ensure the security of such records in transit and at rest, and notes that employees may opt to not use the procedure, and instead avail themselves of the physical examination process under longstanding regulations, for any reason, including concerns about personal privacy. Should DHS become aware of significant gaps in this area, DHS may recommend or require further measures at a future date. 48 See Handbook for Employers M-274, § 9.2, available at https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274 (last visited May 24, 2023) and Article II.A.6. of the E-Verify Memorandum of Understanding, available at https://www.e-verify.gov/sites/default/files/everify/memos/MOUforEVerifyEmployer.pdf (last visited May 24, 2023). Comment: Multiple commenters asked DHS to include clear guidance and protocols on Form I-9 document retention requirements and stated that the objective of document retention was unclear from the regulatory text. Commenters questioned where and for how long electronic documents should be retained under the alternative procedure, and who would have access to those records. A commenter suggested that DHS should establish consistent Form I-9 document retention requirements relevant to E-Verify and non-E-Verify-participating employers using the alternative procedure. Response: DHS understands it is important for employers to have access to clear and thorough guidance on the alternative procedure, including any requirements for using the alternative procedure such as document retention. As detailed in the accompanying notice and this final rule, to offer an equivalent level of security, at this time, the alternative procedure includes certain requirements including a condition for participation and parameters that employers who choose to use the alternative procedure must follow. Qualified employers who use the alternative procedure must retain a clear and legible copy of all documents presented by the employee seeking to establish identity and employment eligibility for the Form I-9. Conversely, E-Verify enrollees who do not use the alternative procedure and only physically examine identity and work authorization documentation for Form I-9 would only be held to the existing requirements for E-Verify participants to retain copies of U.S. passports and passport cards, Permanent Resident Cards, and EADs. 49 All employers who retain documents for Form I-9 must abide by the Form I-9 document retention timeframe set forth in federal regulations, namely three years after the employee's first day of employment, or one year after the date employment ends, whichever is later. See 8 CFR 274a.2(b)(3). Document retention requirements related to the Form I-9, as well as up-to-date instructions and related guidance for the alternative procedure, will be available on I-9 Central and in USCIS' Handbook for Employers (M-274). 50 The objective of retaining all documents presented to establish identity and employment authorization (from the Lists of Acceptable Documents on the Form I-9), is to create additional accountability by enabling a federal government official to assess during a Form I-9 audit if the employer's determination at the time of examination regarding whether the documents appear to be genuine and relate to the individual who presented them (8 CFR 274a.2(b)(a)(1)(ii)(A)), as required by statute and regulation (8 U.S.C. 1324a(b)(1)(A)), was reasonable. 49 See id. 50 See Handbook for Employers M-274, available at https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274 (last visited May 23, 2023). Although DHS is confident that the alternative procedure offers at least an equivalent level of security, DHS will monitor and evaluate data and information from ICE's Form I-9 audits after the implementation of this alternative procedure to assess any measurable impacts to system integrity (such as error or fraud rates) and, based on this information, the Secretary may announce new procedures or changes to the alternative procedure. Comment: Commenters suggested that DHS provide clarification about each electronic document transmission method available to qualified employers and how to show documents remotely under each method ( e.g., requirements to show the front and back of a document). A commenter asked if employers would need to see copies of both the front and back of presented Form I-9 documentation. A commenter asked if there would be quality standards for acceptable Form I-9 documentation. Response: At this time, DHS believes that many employers have already updated their onboarding processes to accommodate remote workers and those employers who, as a result of this rule, choose to update their systems can do so in a manner that suits their processes, including making updates in order to transmit documents electronically. Nothing in this rule or the accompanying alternative procedure requires qualified employers to adopt a specific transmission method for copies of the documents. Information about how to conduct the alternative procedure is contained in the accompanying Federal Register notice. DHS also maintains online information about the Form I-9 online at the I-9 Central website (I-9 Central), 51 a central repository for information about the Form I-9 that will include instructions, guidance on applying the alternative procedure, and other learning resources. DHS is updating the instructions to the Form I-9 to state that copies of presented documents must be clear and legible, and must display the front of the document, and the back of the document, if two-sided. 51 See https://www.uscis.gov/i-9-central (last visited May 24, 2023). 5. Training Supporting Training Comment: Some commenters supported fraudulent document awareness training and anti-discrimination training as a prerequisite for applying the alternative procedure. Some commenters supported web-based training on fraudulent document detection and anti-discrimination as a critical component of any verification process to assess if the documents presented to complete the Form I-9 were genuine, while precluding immigration-related discrimination and ensuring compliance by both employees and employers. Specifically, one commenter provided examples of employers who refuse to accept an identity document listed on the Lists of Acceptable Documents provided with the Form I-9 and insist that employees produce an alternate identity document. Furthermore, those commenters stated that training should be free, web-based, and accessible to every U.S. employer to ensure compliance, enhance fraudulent document detection, reduce discrimination, and minimize the overall burden of the employment eligibility verification process. Another commenter recommended that DHS borrow document authentication training materials from the ICE Mutual Agreement between Government and Employers (IMAGE) program. 52 Various commenters urged DHS to create training plans, monitor completion rates, and make the training easily accessible online and free of charge. 52 DHS's IMAGE program is a membership certification program that focuses reducing unauthorized employment and the use of fraudulent identity documents by providing education and training on proper hiring procedures, fraudulent document detection, and use of the E-Verify employment eligibility verification program, available at https://www.ice.gov/outreach-programs/image for more information (last visited May 24, 2023). Response: DHS agrees with the commenters and supports additional training as a sound safeguard against the occurrence of fraud in the Form I-9 process. DHS believes that such training, including anti-discrimination training, protects the integrity of the Form I-9 process. 8 U.S.C. 1324b prohibits employers from discriminating against individuals based on their citizenship or immigration status, or their national origin, during the hiring, firing, recruiting, Form I-9, or E-Verify processes. Employers should develop, implement, and enforce anti-discrimination policies, practices, and procedures, and ensure that all employees who complete the Form I-9 (and their authorized representatives) or create E-Verify cases on the employers' behalf comply with all applicable statutory and regulatory requirements. Employers must examine the documentation the employee presents for the Form I-9, but are not required to be document experts. Instead, employers must accept documents that reasonably appear to be genuine and relate to the person presenting them. See 8 U.S.C. 1324a(b)(1)(A), 8 CFR 274a.2(b)(i)(2)(A). For example, when a passport appears to be reasonably genuine and to relate to the individual presenting it, an employer cannot refuse to accept it just because the individual may have limited English proficiency. 53 However, if the employee provides a document that does not reasonably appear to be genuine and to relate to the employee, the employer must reject that document, ensure that the Lists of Acceptable Documents are available to the employee, and give the employee an opportunity to provide other documentation that satisfies the requirements of Form I-9. See, e.g., 8 U.S.C. 1324a(b)(1)(A). If an employee believes that they have been discriminated against by the employer based upon citizenship, immigration status, or national origin, unfair documentary practices, or retaliation, the employee should contact the Department of Justice, Civil Rights Division, Immigrant and Employee Rights Section (IER), at 1-800-255-7688. IER hotlines are available Monday through Friday from 9 a.m. to 5 p.m. (Eastern). Calls can be anonymous, and language services are available. Additional information is available at https://www.justice.gov/ier. 53 See 8 CFR 274a.1(l)(2). DHS will ensure the availability of free online fraud awareness training through the required tutorial offered as part of the E-Verify enrollment process for qualified employers who choose to use the alternative procedure. As part of the E-Verify registration process, new employers and users must complete a free tutorial that includes fraud awareness and anti-discrimination training. DHS will also continue to encourage best employment practices by supporting employers who seek to become IMAGE Certified. DHS will monitor and evaluate data and information from ICE audits conducted to assess any impacts on system integrity (such as error or fraud rates) as between the alternative procedure and the physical examination of Form I-9 documents. Additionally, this final rule authorizes the Secretary to conduct a pilot program to acquire and assess more data. DHS will evaluate all data and information collected through ICE audits and pilot programs with a continued goal of offering an alternative procedure to the widest group of employers while balancing the security of any alternative procedures implemented under the rule. Comment: Commenters suggested that DHS publish a “job aid” for identifying fraudulent documents as a reference for Form I-9 document examiners. Commenters suggested that DHS provide written resources to employers or authorized representatives or provide a structured certification program that would help ensure compliance. Additionally, commenters stated that DHS should align or incorporate the required training with E-Verify and create training content that is more digestible for employers. Some commenters said that that the current Form I-9 instructions lack descriptions for valid documentation such as the Form I-797 and the Form I-766, and information about whether any documents must be accompanied by additional supporting documents or an expiration date. Response: DHS agrees with commenters that guidance should be easily understood and descriptive, and that the Form I-9 process is strengthened when training resources are readily available. I-9 Central is updated as needed to ensure employers know how to properly complete the Form I-9. DHS also provides current information and guidance in the M-274, Handbook for Employers, which is available online, and contains detailed examples with images of different document types and information about acceptable document combinations, including when supplemental documents are needed to qualify as an acceptable document combination for the Form I-9. DHS will provide fraudulent document awareness training through E-Verify which will be free and readily accessible for qualified employers who choose to use the alternative procedure. DHS understands that creating a “job aid” for identifying fraudulent documents would be useful; however, employers can join ICE IMAGE and receive HSI-provided training and guidance on proper hiring procedures and fraudulent document awareness. 54 54 For more information see https://www.ice.gov/outreach-programs/image (last visited June 5, 2023). Opposing Training Comment: Several commenters opposed associating access to remote document examination with government-provided mandatory training because they said doing so would defeat the purpose of the proposed rule, which is to ease—not add to—the burden on employers. They also indicated that the alternative procedure would impose substantial costs on small business owners by diverting resources and attention away from business activities. Commenters stated that the burden of compliance rests on the employer so DHS should make training resources available but defer to employers on how to train employees to examine identity and employment authorization documents presented for the Form I-9. Commenters stated that companies leveraging authorized representatives are already aware of their liability for any Form I-9 violations and may already have internal processes to reduce the potential for errors, including training programs. Response: DHS is committed to providing employers useful learning resources to help them complete the Form I-9 correctly and agrees that completing Form I-9 training and accessing these resources should not be unduly onerous. For qualified employers who choose to use the alternative procedure, free training, instructions, and guidance for completing the Form I-9 using the alternative procedure will be available on I-9 Central. Under the parameters of the alternative procedure outlined in this final rule, nothing prevents a qualified employer from centralizing their Form I-9 process. DHS disagrees that mandatory training would defeat the purpose of the alternative procedure or would impose substantial costs on small businesses. At this time, DHS is requiring employers who seek to use the alternative procedure and that are not already enrolled in E-Verify to complete the E-Verify new user tutorial, which includes fraud awareness and anti-discrimination training. The tutorial is free and accessible online as part of the E-Verify enrollment process. DHS estimates that the one-time E-Verify enrollment process takes new participants 2.26 hours to enroll, review and sign the MOU, review the user guides, and complete the tutorial. DHS estimates one hour for each additional user for an enrolled employer to complete the tutorial. 55 Finally, nothing in this final rule requires an employer who is already enrolled in E-Verify to use the alternative procedure or for their employees to complete the tutorial more than once. 55 As estimated in the supporting statement for the currently approved information collection at the time of publication, 1615-0092, E-Verify Program, available at https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202103-1615-015 (last visited May 24, 2023). Comment: A commenter stated while they supported mandatory fraudulent documentation detection training for employers, they would not support mandatory training for all authorized representatives. This commenter stated that requiring such training for all authorized representatives would place an undue burden on individuals who might never need to complete another Form I-9 in the future, create an obstacle for already disadvantaged individuals who may not have the means to easily submit digital copies of documents, and preclude employers from using authorized representatives as a method of verification. Another commenter reasoned that companies leveraging authorized representatives are already aware of their liability for any verification violations and may already have internal processes to reduce the potential for errors, including training programs. Response: This rule and the alternative procedure announced in the accompanying Federal Register notice do not require training for authorized representatives specifically. 6. Live Video Interaction Comment: A commenter asked if, when confirming that Section 2 documents are related to the person presenting them, the employer would be required to see the employee via live video. Response: The alternative procedure outlined in the accompanying Federal Register notice states that the employer must conduct a live video interaction with the employee. The employee must first transmit the copy of the document(s) to the employer and then present the same documents during the live video interaction to ensure that the documentation presented appears reasonably related to the individual presenting it. Comment: A commenter expressed concern that the NPRM did not adequately address the potential costs associated with certain integrity measures and the potential negative impacts on a portion of the population (such as employees who lack internet access). Response: DHS appreciates the concern that employers implementing an alternative procedure could encounter costs and that some persons, such as employees without internet access, might not wish to use the alternative procedure. This final rule allows the Secretary to authorize an alternative procedure for Form I-9 document examination procedures for qualified employers but does not eliminate the physical in-person examination option for the employer or the employee. Nothing in this rule requires employers to offer, or employees to use, the alternative procedure. DHS understands that choosing to use the alternative procedure may require an employer to engage in certain activities that may incur a cost, including enrolling in E-Verify (or remaining a participant in E-Verify in good standing), collecting and retaining copies of Form I-9 documents presented by employees, and completing training. Any of these factors, and others, may influence an employer's decision to offer the alternative procedure, and the employee's decision to use it. However, DHS also understands that there are possible benefits to using the alternative procedure, such as improved operational and administrative efficiencies which may result in fewer Form I-9 mistakes and savings on third-party verification costs. DHS expects that affected persons will choose to use the alternative procedure if they believe it is in their best interests to do so. Comment: A commenter asked if DHS could, to avoid any misunderstanding by employers, define what a remote employee is. Response: A definition of “remote worker” is not necessary for this alternative procedure, because unlike the temporary flexibilities announced by DHS in March 2020 to address physical proximity precautions implemented by employers to combat the COVID-19 pandemic, the optional alternative procedure described here is available to employers with respect to all employees of qualified employers, including non-remote employees. As noted above, however, a qualified employer may choose to offer the alternative procedure for remote hires only but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity, so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on a protected characteristic. 56 56 See 8 U.S.C. 1324b(a)(1). F. Pilot Program Comment: Multiple commenters asked for further explanation of the goal of a potential pilot program, as well as how it will affect employers and employees. Commenters questioned what a potential pilot program would involve, what kind of pilot program would be added (and when), what authorities it would grant, and how employers and employees would be fully impacted both during the pilot phase and in the long-term. Commenters stated that because there were information gaps in the NPRM, the public was unaware of all aspects of any proposed changes and therefore could not provide adequate comment. Another commenter suggested that the pilot program should focus on industries with high turnover rates, remote workforces, and businesses that provide staffing services for construction, food service, restaurants, hospitality, higher education, and the healthcare fields should be considered for participation in the pilot. Response: At this time, the Secretary is authorizing a permanent alternative procedure as outlined in the accompanying Federal Register notice. The Secretary has determined that it is not necessary to first conduct a pilot program. However, in the future, the Secretary may authorize a pilot program to explore other optional alternative procedures or collect additional data. At this time, DHS believes it is prudent to authorize an alternative option for examining employees' identity and employment eligibility Form I-9 documents because one of the lessons learned during the COVID-19 pandemic was that there is a need for an optional alternative to the in-person physical examination method employers have followed as part of the Form I-9 process set forth in current regulations. After careful consideration of the comments received and concerns raised by the public, DHS created the framework for an alternative procedure that is detailed in this final rule and in an accompanying Federal Register notice. Additionally, the final rule authorizes the Secretary to conduct a pilot program to acquire and assess more data. DHS will evaluate all data and information collected through audits after the implementation of this alternative procedure and pilot programs with a continued goal of expanding the availability of an alternative procedure to other employers while ensuring the level of security offered by any alternative procedure implemented under the rule. With respect to commenters' stated concern that DHS has not sought comment on a specific proposed pilot, DHS appreciates commenters' concern, and notes that any pilot authorized by DHS would be entirely optional, time-limited, and designed to help DHS assess potential alternative procedures. DHS appreciates the suggestion to consider industries with high turnover rates, and to consider allowing participation across multiple industries, in a future pilot program. Comment: Commenters suggested that, if DHS were to proceed with a pilot program, any such pilot program should last for at least five years to allow employers and vendors sufficient time to recoup any necessary investments to participate. This should also provide ample time to transition to a permanent program or revert to pre-COVID-19 processes. Commenters noted that employers have learned many important lessons from the temporary flexibilities first announced in March 2020 that would render any future pilot program redundant. Response: This final rule authorizes the Secretary the option to conduct a pilot program to explore other possible alternative procedures. DHS will evaluate all data and information collected through Form I-9 audits and pilot programs with a continued goal of expanding the availability of an alternative procedure to the widest group of employers while balancing the security of any alternative procedures implemented under the rule. The Secretary will announce any such pilot programs, new procedures, or changes to this alternative procedure in the future. DHS will consider the suggestion that any future pilot program should last for an appropriate length of time that would allow as many employers as possible to participate. During the period when the Form I-9 flexibilities were in place, DHS did not collect additional information to evaluate the impacts of the flexibilities on the integrity of the Form I-9 process. However, DHS will monitor and evaluate data and information from ICE's Form I-9 audits conducted after the implementation of this alternative procedure to assess any measurable impacts on system integrity (such as error or fraud rates). In addition, DHS may conduct a pilot program to acquire and assess more data. DHS will evaluate all data and information collected to ensure the security of any alternative procedures implemented under this final rule. G. Suggestions for Additional Changes or Alternative Procedures 1. Past Fines, Settlements, and Convictions Comment: Some commenters suggested that DHS require employers who have failed to follow Form I-9 instructions in the past to physically examine documentation and prove their compliance before being considered eligible for an alternative procedure. Another commenter stated that although it might seem “reasonable at face value” to restrict participation if an employer has been the subject of a fine, settlement, or conviction related to noncompliance with Form I-9 requirements, this approach could make compliance more difficult for these employers. Further, the commenter stated that if the goal is compliance, restricting participation would not be an effective strategy. An individual commenter said that, while they understood the inclination to treat an alternative procedure as a “privilege,” employers found to have ongoing technical errors could become more compliant by centralizing their Form I-9 process and tasking document verification to a trained, experienced team with the ability to complete Section 2 remotely. Response: DHS has not included such a restriction in the alternative procedure accompanying this rule, because DHS believes that the measures included in the alternative procedure offer at least an equivalent level of security. DHS recognizes that past violations are not necessarily indicative of current noncompliance, and currently lacks a clear methodology to distinguish between past violators on the basis of (for instance) type or number of violations. DHS may, however, prioritize audits on the basis of past violations, consistent with available resources and law enforcement prerogatives. In addition, DHS has included a condition that qualified employers be E-Verify participants in good standing, for the reasons explained above. 2. Document Examination by Other Parties or by Mail Comment: Several commenters recommended that DHS allow the U.S. Postal Service, licensed notaries, library employees, clerks in local government, or DMV employees to conduct Form I-9 document examinations, or allow physical document examination be done by local, certified third parties, such as notaries. A commenter recommended that DHS allow employers and HR staff, specifically, to verify the Form I-9 documentation showing work authorization by mail and then allow a manager to confirm the employee's identity in-person. Response: DHS appreciates these suggestions and will continue to explore ways to improve the Form I-9 process. At this time, DHS believes that the accompanying alternative procedure offers sufficient flexibility for employers while DHS continues to evaluate other options to facilitate compliance and reduce burdens on employers and employees. DHS notes that existing regulations continue to allow the use of authorized representatives. See, e.g., 8 CFR 274a.2(b)(1)(ii). 3. Existing Digital Tools Comment: Some commenters suggested that DHS permit, as part of the Form I-9 process, the use of existing virtual and digital tools and services that examine documents and verify the identity of the individual. Commenters stated these services are used by other federal and state agencies to authenticate an individual's identity. Another commenter suggested allowing for alternative processes as long as they complied with established federal government authentication standards, presenting ID.me as an example. One commenter suggested that DHS should allow for effective and sustainable digital identification solutions in the future, with consideration given to those services that currently overlap with the Form I-9. Another commenter referenced the increasing use of digital driver's licenses, which some U.S. states have begun issuing, making the case that requiring physical documents is outdated. A commenter stated that due to added protections provided by participation in E-Verify, coupled with advances in technology, remote verification poses a lower risk than in the past. Another commenter stated that commercial platforms and scanning technology already enable the employee to share images of verification documents though fax, email, or other means in advance of, or simultaneous to, a video meeting. Thus, an employer can “toggle” between a copy of the verification documents received and the video screen, effectively approximating the in-person verification experience. A commenter suggested that DHS allow digital document submission rather than requiring physical document copies because it would allow businesses to realize the efficiencies offered by digital innovations, noting that some U.S. states have begun issuing digital driver's licenses. Another commenter suggested that DHS work with state governments to create and share photos in a database. Various technological approaches were suggested for uploading and collecting Form I-9 documentation, including webcam or video recording, facial recognition software, email, a secure document portal, or a document scanner (similar to methods used by other government agencies or by sending a link to the employee's telephone). A commenter stated that DHS should allow employers to select how to conduct alternative procedures because a requirement to use a specific set of methods would add undue and burdensome expenses. Response: DHS agrees that the Form I-9 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2023-15532. Public record. Not legal advice.