© 2022 American Payroll Institute, Inc. APA Questions Form I-9 Remote Document Review Proposal The APA supported the U.S. Department of Homeland Security (DHS) in its efforts to allow alternative Form I-9, Employment Eligibility Verification, document review for remote workers but raised some questions about the proposed procedures (87 F.R. 50786, 8-18-22). Within three business days after the first day of employment, employers are required to physically examine the documents presented by new employees from the Form I-9 Lists of Acceptable Documents to ensure the documents presented appear to be genuine and relate to the employee. During the COVID-19 pandemic, the DHS allowed an alternative method of document review. The proposed rule would not directly authorize remote document examination. Instead, it would create a framework under which DHS could test various options, respond to emergencies similar to the COVID-19 pandemic, or implement permanent alternatives based on a specific determination on security, such as the risk of fraud. Proposed procedures are vague The proposed procedures are too vague, APA said. The APA understands the need for testing through a pilot program and temporary procedures because of emergencies, but the provision on “equivalent level of security” as determined by the DHS does not offer employers an understanding of what will be required. The APA asked the DHS these questions: (1) What criteria will the DHS use to determine an equivalent level of security? (2) When will the Secretary decide on alternatives, e.g., only after a pilot is completed? (3) Are employers expected to request an alternative procedure and, if so, what are the procedures for making the request? (4) What should employers do regarding remote worker verification pending the DHS’s decision on alternatives? The APA suggested that the DHS already has some level of knowledge regarding the effectiveness of alternative procedures for document review following two years of temporary requirements created to address COVID-19. Proposed document retention ineffective In the request for comments, the DHS proposed that employers be required to retain copies of documents presented through alternatives. The APA said this proposal potentially creates a requirement stricter than the law. Employers are not required to prove that a document is real. At issue is whether an employer or the employer’s agent can examine employees’ presented documents virtually to determine if they are genuine and reasonably associated with the individual. Making a copy of documents will only show that an employer has seen presented documents, not whether the employer conducted a compliant examination, APA said. In comments about remote document examination for Form I-9 submitted to the DHS in December 2021, the APA offered historical assumptions in the question on whether documents are genuine that are not accurate or are no longer true and should be reviewed, including: The physical touching of documents is necessary to determine if they are genuine. Seeing documents within arms-reach makes it more likely to accurately determine if they are genuine and reasonably associated with the individual as opposed to seeing the documents from a distance. The appearance of an individual in the presence of the document examiner is necessary to determine identity and whether documents are associated with the individual. Virtual environments can distort documents and human faces to prevent reasonable examination. The use of authorized representatives, such as notaries, is the best alternative for document examination in a remote environment. Training and outreach needed The APA agreed with the DHS that an appropriate fraudulent document detection and/or anti-discrimination training requirement for employers is necessary as is training on Form I-9. The APA already works closely with the U.S. Citizenship and Immigration Services to provide payroll professionals with training on employment verification, Form I-9, and E-Verify requirements. The APA offered the DHS its services for purposes of training to help prevent fraud. Proposed eligible population too restrictive The APA recommended the DHS allow all employers to use alternative document review methods for remote workers with one exception bad actors. If an employer has knowingly failed to comply with employment verification requirements or the DHS-authorized alternative method of document review, a reasonable remedy may be to restrict use of that alternative method, APA said. However, the best approach may be to add the restriction to the settlement October 2022 A Supplement to Payroll Currently, Issue 10, Volume 30
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