Tag: Examination

  • DHS Announces Proposed Pilot Program for Non-E-Verify Employers to Use Remote I-9 Document Examination – CUPA-HR

    DHS Announces Proposed Pilot Program for Non-E-Verify Employers to Use Remote I-9 Document Examination – CUPA-HR

    by CUPA-HR | August 9, 2023

    On August 3, 2023, the Department of Homeland Security (DHS) published a notice in the Federal Register seeking comments on a potential pilot program to allow employers not enrolled in E-Verify to harness remote examination procedures for the Form I-9, Employment Eligibility Verification.

    Background

    DHS’s recent actions are built upon a series of moves aimed at modernizing and making more flexible the employment verification process. On July 25, 2023, the DHS rolled out a final rule enabling the Secretary of Homeland Security to authorize optional alternative examination practices for employers when inspecting an individual’s identity and employment authorization documents, as mandated by the Form I-9. The rule creates a framework under which DHS may implement permanent flexibilities under specified conditions, start pilot procedures with respect to the examination of documents, or react to crises similar to the COVID-19 pandemic.

    Alongside the final rule, DHS published a notice in the Federal Register authorizing a remote document examination procedure for employers who are participants in good standing in E-Verify and announced it would be disclosing details in the near future about a pilot program to a broader category of businesses.

    Key Highlights of the Proposed Non-E-Verify Remote Document Examination Pilot 

    DHS’s proposal primarily revolves around the following points:

    • Purpose: Immigration and Customs Enforcement (ICE) intends to gauge the security impact of remote verification compared to traditional in-person examination of the Form I99. This involves evaluating potential consequences like error rates, fraud and discriminatory practices.
    • Pilot Procedure: The new pilot program would mirror the already authorized alternative method for E-Verify employers, including aspects such as remote document inspection, document retention and anti-discrimination measures.
    • Eligibility: The pilot program is open to most employers unless they have more than 500 employees. However, E-Verify employers are excluded since DHS has already greenlit an alternative for them.
    • Application Process: Interested employers must fill out the draft application form, which DHS has made available online. This form captures details like company information, terms of participation, participant obligations, and more.
    • Information Collection: Employers wishing to join the pilot would be required to complete the formal application linked above. ICE would periodically seek data from these employers, such as the number of new hires or how many employees asked for a physical inspection.
    • Documentation: Participating companies must electronically store clear copies of all supporting documents provided by individuals for the Form I-9. They might also be required to undertake mandatory trainings for detecting fraudulent documents and preventing discrimination.
    • Onsite/Hybrid Employees: Companies might face restrictions or a set timeframe for onsite or hybrid employees, dictating when they must physically check the Form I-9 after the initial remote assessment.
    • Audits and Investigations: All employers, including pilot participants, are liable for audits and evaluations. DHS plans to contrast data from these assessments to discern any systemic differences between the new method and the traditional one.

    What’s Next: Seeking Public Comments by October 2 

    DHS is actively seeking feedback from the public regarding the proposed pilot and the draft application form. The department encourages stakeholders to consider and provide insights on the following points:

    • Practical Utility: Assess if the proposed information requirement is vital for the agency’s proper functioning and whether the data collected will be practically useful.
    • Accuracy and Validity: Analyze the agency’s estimation of the information collection’s burden, ensuring the methods and assumptions are valid.
    • Enhance Information Quality: Offer suggestions to improve the clarity, utility and overall quality of the data collected.
    • Minimize Collection Burden: Propose ways to ease the data collection process for respondents, exploring technological solutions such as electronic submissions.

    In light of this, CUPA-HR plans to carefully evaluate the notice and associated application. Based on its review, CUPA-HR is considering submitting comments to provide valuable insights to DHS. CUPA-HR will keep members apprised of any updates regarding this proposed pilot program and other changes to Form I-9 alternative examination procedures.



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  • DHS Announces Final Rule Permitting Alternative Options for Form I-9 Document Examination – CUPA-HR

    DHS Announces Final Rule Permitting Alternative Options for Form I-9 Document Examination – CUPA-HR

    by CUPA-HR | July 24, 2023

    On July 21, the Department of Homeland Security (DHS) announced a final rule permitting the Secretary of Homeland Security to authorize optional alternative examination practices for employers when reviewing an individual’s identity and employment authorization documents required by the Form I-9, Employment Eligibility Verification. The rule creates a framework under which DHS may implement permanent flexibilities under specified conditions, start pilot procedures with respect to the examination of documents, or react to crises similar to the COVID-19 pandemic.

    Simultaneously, DHS published a notice in the Federal Register authorizing an alternative document examination procedure. This provides employers who are participants in good standing in E-Verify with the option to remotely examine their employees’ identity and employment authorization documents via a live video interaction.

    Background

    Under current law, employers are required to physically examine an individual’s identity and employment authorization documents within three business days after an individual’s first day of employment. In response to the COVID-19 pandemic, DHS introduced temporary flexibilities in March 2020, enabling employers to remotely review these documents. This virtual inspection was to be succeeded by a physical examination within three business days once normal operations resumed. These flexibilities, extended multiple times, are set to expire on July 31, 2023.

    Due to the success of temporary changes to document verification procedures implemented at the onset of the COVID-19 pandemic, DHS issued a Request for Public Input (RPI) on October 26, 2021, concerning remote document examination. This move initiated a discussion on whether these leniencies should be extended permanently. After examining the comments responding to the RPI, DHS proposed a framework on August 18, 2022, empowering the Secretary to extend these flexibilities. CUPA-HR submitted comments in response to the RPI (see here) and proposal (see here) encouraging DHS to move forward expediently and ensure that a remote review process remains available following the end of the COVID-19 Flexibilities.

    Details of the Alternative Procedure

    From August 1, 2023, eligible employers can start using the alternative procedure as outlined in the Federal Register notice. The conditions include: (1) restricting participation to E-Verify participants in good standing; (2) broadening document retention requirements to include clear and legible copies of all Form I-9 documents; (3) requiring E-Verify training on fraud awareness and antidiscrimination; and (4) holding a live video interaction after the employee transmits a copy of the document(s) to the employer.

    Employers participating in E-Verify, who created a case for employees whose documents were examined during the COVID-19 flexibility period (March 20, 2020 to July 31, 2023), can opt for the new alternative procedure from August 1, 2023 to satisfy the required physical examination of the employee’s documents for that Form I-9. Conversely, employers not enrolled in E-Verify during the flexibility period must complete a physical examination in-person by August 30, 2023 as outlined in the Agency’s May 4 announcement.

    What’s Next

    Looking ahead, DHS continues to expand its efforts to streamline employment verification procedures. As part of this endeavor, the department is gearing up to roll out a pilot program offering a remote examination option not just to E-Verify-enrolled employers but also to a broader category of businesses. This pilot program is expected to inform decisions about a comprehensive expansion of the remote examination option.

    Simultaneously, DHS is preparing to issue a new edition of Form I-9. Dated August 1, 2023, the new form will become the standard for all employers starting November 1, 2023. Until then, employers can still use the previous edition dated October 21, 2019, through October 31, 2023. It’s important to note, however, that if an employer chooses to utilize the 2019 edition in conjunction with the new alternative remote inspection procedure, they must mark “alternative procedure” in the Additional Information field in Section 2 of Form I-9.

    According to DHS, more details about the new Form I-9 and the pilot program will be disclosed in the near future. CUPA-HR will continue to monitor these developments and keep members apprised as they are announced.

     



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  • DHS Proposes Rule Permitting Alternative Options for Form I-9 Document Examination – CUPA-HR

    DHS Proposes Rule Permitting Alternative Options for Form I-9 Document Examination – CUPA-HR

    by CUPA-HR | August 23, 2022

    On August 18, the Department of Homeland Security (DHS) published in the Federal Register its anticipated Notice of Proposed Rulemaking (NPRM) on optional alternative examination practices for employers when reviewing an individual’s identity and employment authorization documents required by the Form I-9, Employment Eligibility Verification. Interested stakeholders can submit comments on the NPRM through October 17.

    Under current law, employers are required to physically examine an individual’s identity and employment authorization documents within three business days after an individual’s first day of employment. The proposed rulemaking, however, would create a framework under which the Secretary of Homeland Security could allow alternative options for verifying those documents, such as reviewing the documents via video, fax or email.

    As explained in the NPRM, the proposal does not directly allow employers or agents acting on the employer’s behalf to use such alternative examination options, but instead would create a framework under which the Secretary would be authorized to extend the flexibilities. The Secretary would be authorized to implement the alternative options in a pilot program if they determine such procedures would offer an equivalent level of security, 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.

    The DHS is issuing this rulemaking following the success of temporary changes to document verification procedures implemented at the onset of the COVID-19 pandemic. In March 2020, the DHS’s Immigration and Customs Enforcement deferred its physical examination requirements for Form I-9 and relaxed its enforcement. Employers were allowed to review documents through video, fax or email so long as they also retained copies of the documents. The policy proved successful and was extended several times, but is currently set to expire October 31, 2022. It may still be extended as the agency pursues this rulemaking.

    In December 2021, CUPA-HR submitted comments to the DHS in response to the agency’s Request for Public Input on remote document examination. In its comments, CUPA-HR reported the results of the survey it conducted of member institutions’ experiences with the agency’s Form I-9 flexibilities. CUPA-HR members reported positive experiences with the changes and said they did not run into challenges with implementation. Respondents strongly supported a permanent option for remote document examination and said the policy provides numerous benefits for higher education institutions, including providing more flexibility for remote work, reducing the time needed to complete document verification and reducing institutions’ paperwork burden. Respondents also criticized physical document examination as overly burdensome.

    CUPA-HR plans to submit comments on the NPRM and will likely ask members for their input in the coming weeks.



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