What the Form I-9 Dance Between DHS Components USCIS and ICE Means for Employers

For the nearly 11 million employers in the US there is a confusing whirlwind of activity that is leaving many with questions about how to proceed with I-9 compliance. The I-9 is the document that shows the federal government that an employer has conducted due diligence in determining a new hire’s legal right to work in the US.

The two main Department of Homeland Security players in this space – Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS) – have been quite active about I-9s since declaration of the end of the pandemic, and it is unclear whether the two components are fully in tandem with each other per various announcements about current and future I-9 requirements. Either way, the lack of clarity as to how to maintain compliance and survive a potential I-9 audit is more confusing than ever.

This article is an attempt to sort through the noise, and provide clarity on the common theme that will remain no matter what the government does: remote employment is here to stay, and I-9 guidance needs to go beyond the rules to include reasonable means to comply using technologies Americans are accustomed to as consumers.

ICE Re-requires In-person ID inspection

On the one hand, ICE announced on May 5, 2023 that the Form I-9 pre-COVID rule for in-person review of IDs is now in place again, and required for all hires, even those remote workers hired during COVID. During COVID, remote Form I-9 completion was permitted for those hires not physically present at a worksite. Employers have until August 30 to remedy “remote” I-9s – meaning, a physical person looking at the physical IDs used to complete the Form I-9 who then completes a new p2 of the Form I-9 and returns it to HR so it can be attached to the original I-9.

Small businesses (and large ones) are trying to figure out how to meet this requirement for the 26 percent of the US workforce who will stay remote.

It is a costly and confusing requirement, and while literally anyone can be an “authorized representative” on behalf of the employer to conduct the in-person ID review of their hires – the grocer down the street or a favorite sibling – the employer is responsible legally for any mistakes or falsities on that new page 2. Depending on the size of the company, the cost associated with hiring professional third party authorized representatives may not be financially feasible. In addition, a 2012 ICE memo requires digital Form I-9s and e-signatures, which may not be easy to acquire for all authorized representatives who do not have access to the employer’s human resources system.

ICE Pending Rule Allows Remote ID Inspection

On the other hand, ICE has a pending proposed rulemaking from August 2022, Optional Alternatives to the Physical Document Examination Associated With Employment Eligibility Verification (Form I–9), to enable remote ID inspection that is not yet finalized, which made clear its production based on responses to the related October 2021 USCIS Request for Public Input on Remote Document Examination for Form I-9, Employment Eligibility Verification. ICE noted in its publication that USCIS had received 325 public comments about remote ID examination option, “stating that such an option reduces burdens on employers and employees. Some commentators raised concern about document fraud, while others recommended measures to mitigate the risk.”

According to the ICE, the pending rule “would not itself implement an alternative procedure to physical examination… would also allow the Secretary the option of conducting a pilot program before deciding whether to use the option provided in this rule. If DHS introduces an alternative procedure, employers would still have the option to physically examine documents for the Form I-9 and would not be required to use the alternative method.” (ICE language). It will allow employers with remote hires to present their IDs remotely, via email, video, or hopefully in the most secure manner possible – through mobile or web applications that enables private and encrypted sharing of the ID images between the employer and new hire.

With the rule still pending, employers must now scramble to comply with the August 30 deadline for in-person ID reviews for all hires past and present, rendering their COVID processing null and void – while waiting on a rule that may be issued before August 30 – potentially making this scramble a costly, confusing, time-consuming waste of time.

But that is not all.

USCIS NextGen E-Verify Would Permit the Employer – in Some Circumstances - Do No ID Inspection

Two months ago, USCIS put out a video that states that in NextGen E-Verify, the program would create a Form I-9 directly with the new hire, also enabling the new hire to resolve any tentative non-confirmation issues directly with the government. This would take the employer’s human resource managers out of the requirement to submit the new hire Form I-9 data to E-Verify. By doing so, for E-Verify employers with new hires willing to use NextGen E-Verify, the issues of in-person or remote review of IDs becomes a non sequitur; it does not matter anymore because the new hire is doing a digital submission of the IDs to get work authorization verified and then providing that verification to the employer.

Now granted, there any many questions with a new hire directly submitting to E-Verify. USCIS retains all E-Verify data already. Now it would be maintaining a database of literally every compliant hire of the 133 million employees in the US today. How would that data be protected? Why does the government need to keep that data? Granted, the US government already has the data it creates: SSNs, green cards and passports, but they do not create birth certificates, driver licenses, or the numerous other List B and C documents permitted to be presented. This would be a huge aggregation of personally identifiable information. Even if a new hire is okay with voluntarily submitting to E-Verify, would new hires be willing to spend the time to do this when every employee now is used to the employer doing that work? In addition, most US workers are American. Only 28 million US workers are foreign and would have a potential verification issue with E-Verify anyway, so what is the incentive to get pre-E-Verified?

A Reasonable Solution for Compliant, Secure Remote Inspection

All in all, amongst the do-si-do that is occurring now between USCIS and ICE on how to deal with the legal authorization to work via the Form I-9 and its supporting program E-Verify, it seems the only solid answer is that the Form I-9 won’t go away, and neither will a 26 percent remote workforce. The only way to deal with the Form I-9 going forward has little to do with what either USCIS or ICE has ruled to date, but for perhaps the guidance gleaned from the still pending USCIS remote I-9 rule: that in-person inspection is simply untenable in remote hires situations, and technology must be used to fill the gap.

However, one solution proposed in August 2022 ICE pending rule for remote document is: “DHS is also considering requiring employers to retain copies of any documents presented remotely via video, fax, or email.” This language needs better alignment to document security and current technology capabilities, as neither email nor video is a secure or private means to transmit precious ID images.

What is secure are fully digital ID technologies that can provide accurate Form I-9s and ID images in one transaction, and report that information digitally and directly to a well-trained and well organized human resources manager for any worker, remote or in-person, in an automated, secure, private and accurate manner. Those technologies, which include mobile applications, coupled with E-Verify, document capture, third-party audits, and automation, are really where convenience and security merge—and where the government should be going in their rulemaking.

That would be I-9 reasonable guidance enabling efficient compliance using technologies Americans are accustomed to as consumers. That’s a do-si-do the whole nation could do together.

Janice Kephart - CEO, ZipiDapp.com

BIO

Janice Kephart is a 21-year veteran in identity, beginning in 1998 where she drafted the conversion of the federal identity theft criminal statute from a paper crime to a digital crime while in the US Senate. In 1998 Janice also investigated foreign terrorist threat, holding a hearing on the five year anniversary of the World Trade Center that released the now infamous Bin Ladin fatwa that called upon the killing of American civilians. From there she was hired by the 9/11 Commission to investigate how the 9/11 hijackers got in and stayed in the country, and her border recommendations and attending terrorist travel monograph from the commission called for biometric borders, founded the term 'terrorist travel' and the phrase "we must assure that people are who they say they are."

Since then she has testified before Congress 19 times on identity related issues to borders and credential standards, including E-Verify, and invited to speak before the UN National Security Council on terrorist travel; won the 2015 Women in Biometrics Award, one of five women from over 50 nominated; and was honored by Duke University as one of their most influential graduates of her decade.

Today Janice is CEO of ZipIDapp.com, an automated Form I-9 solution that mirrors the federal regulation requirements in 8 steps. (Demo video on site). She is also the CEO of Identity Strategy Partners, where her services support the federal government in responsible implementation of biometric and identity solutions related to national security and facilitation.