Optional Alternatives to the Physical Document Examination Associated With Employment Eligibility Verification (Form I-9), 47990-48022 [2023-15532]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 88, Number 141 (Tuesday, July 25, 2023)]
[Rules and Regulations]
[Pages 47990-48022]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15532]



[[Page 47989]]

Vol. 88

Tuesday,

No. 141

July 25, 2023

Part III





Department of Homeland Security





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Occupational Safety and Health Administration





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 8 CFR Part 274a





Optional Alternatives to the Physical Document Examination Associated 
With Employment Eligibility Verification (Form I-9); Final Rule

Federal Register / Vol. 88 , No. 141 / Tuesday, July 25, 2023 / Rules 
and Regulations

[[Page 47990]]


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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.

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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.
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    \1\ See 87 FR at 50789.
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    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.
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    \2\ See 86 FR 71357 (published Dec. 16, 2021).
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    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\
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    \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.
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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,

[[Page 47991]]

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\
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    \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).
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    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.
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    \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).
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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).
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    \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).
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    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\
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    \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).
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    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.
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    \18\ 86 FR 59183.
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    On October 11, 2022, ICE announced that the COVID-19 flexibilities 
would be extended until July 31, 2023.\19\ On

[[Page 47992]]

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\
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    \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).
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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.
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    \21\ See Optional Alternatives to the Physical Document 
Examination Associated With Employment Eligibility Verification 
(Form I-9), 87 FR 50786 (Aug. 18, 2022).
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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.
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    \22\ See 8 U.S.C. 1324b(a)(1).
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    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.
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    \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).
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    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)

[[Page 47993]]

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;
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    \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).
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    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\
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    \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.
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    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
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    \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).
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    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\
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    \29\ See 8 U.S.C. 1324a, 1324b; 8 CFR part 274a; 28 CFR part 44.
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    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

[[Page 47994]]

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

[[Page 47995]]

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.
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    \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.

[[Page 47996]]

    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

[[Page 47997]]

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 Sec.  1324a(d)(2)(A)-(G) do not apply 
to this rulemaking, because this rulemaking is not issued under Sec.  
1324a(d)(1). Under Sec.  1324a(d)(1), the President or the President's 
designee may implement such changes in (including additions to) the 
requirements of Sec.  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 Sec.  1324a(b), and 
therefore need not invoke the authority at Sec.  1324a(d)(1). This rule 
relates solely to the physical examination of documents, which is a 
regulatory requirement, and is not a requirement of Sec.  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 Sec.  
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

[[Page 47998]]

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.
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    \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.
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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

[[Page 47999]]

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\
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    \36\ See Handbook for Employers M-274, Sec.  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.
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    \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

[[Page 48000]]

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

[[Page 48001]]

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.
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    \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.
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    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

[[Page 48002]]

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, Sec.  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.
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    \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

[[Page 48003]]

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\
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    \54\ For more information see https://www.ice.gov/outreach-programs/image (last visited June 5, 2023).
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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

[[Page 48004]]

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\
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    \56\ See 8 U.S.C. 1324b(a)(1).
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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

[[Page 48005]]

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

[[Page 48006]]

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 process may benefit from the 
use of existing and future digital services, whether private or public. 
The use of E-Verify and remote document examination under the 
alternative procedure is one example of the ways in which information 
technology can reduce burdens while ensuring the integrity of the 
employment verification system. As another example, DHS is also 
currently developing E-Verify NextGen, an exciting new product that 
modernizes and streamlines the Form I-9 and verification process for 
employees and employers.\57\ DHS will continue to explore opportunities 
to leverage public and private information technology resources to 
improve the Form I-9 process, consistent with available resources and 
statutory authorities. At this time, however, DHS is not requiring 
employers to use a specific technology as a condition of implementing 
the alternative procedure.
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    \57\ See E-Verify, Coming Soon: E-Verify NextGen, available at 
https://www.e-verify.gov/about-e-verify/whats-new/coming-soon-e-verify-nextgen (last visited May 20, 2023).
---------------------------------------------------------------------------

    A number of the suggested alternative approaches to document 
examination path would carry risks that could impact employers' ability 
to implement the alternative procedure, as well as the incidence of 
fraud, data security, national security, or other equities. For 
instance, digital identification systems, including systems that 
involve interaction with government databases, may pose different or 
additional privacy risks. In a digital identity[hyphen]check 
environment, a person's entry into a particular area can be recorded 
and the information stored for some period of time. If not properly 
protected, this information, which includes PII, could also be 
repeatedly shared or used for secondary purposes, even potentially used 
for broader surveillance. The Privacy Act of 1974, the E-Government Act 
of 2002, and other authorities, to include DHS privacy policies, govern 
DHS's collection, maintenance, and use of PII to prevent and mitigate 
privacy risks, to include identity theft or other adverse, unauthorized 
misuses of individuals' PII. In addition, as DHS has certain law 
enforcement functions involving counterterrorism and intelligence, it 
abides by certain standards for data sharing, which makes systems 
integration more complicated to protect law enforcement missions in the 
areas of border security, criminal law enforcement, criminal 
investigations, and immigration enforcement. For these and other 
reasons, DHS believes that the suggested alternatives are infeasible at 
this time.
    Furthermore, this rule and accompanying notice are providing an 
option to qualified employers to use an alternative method to verify 
employees' identity and employment authorization for the Form I-9. The 
employer may use various communication platforms to conduct a live 
video- and audio-conferencing interaction to examine the document with 
the employee who presents the documents. In contrast, `verification 
sites' or `digital identity' platforms may use artificial intelligence 
or other facial recognition software in place of document examination, 
and raise a host of issues that DHS cannot fully address at this time. 
DHS may consider using a secure digital identity verification in 
combination with video conferencing in the future after conducting 
further analysis and assessment. This rule is providing an option to 
employers to use an alternative procedure for examining the identity 
and employment authorization documents of an employee to complete the 
Form I-9.
    With regards to digital licenses, not every state provides digital 
licenses and this rule does not change the acceptable Form I-9 
documents to demonstrate identity and employment authorization. DHS 
will continue to engage with state motor vehicles departments on 
information sharing and may consider partnerships in the future.
    DHS may explore additional options in the future after further 
assessments and analysis are conducted.
4. Emerging Technology
    Comment: A commenter stated that DHS should authorize a procedure 
that allows for employment eligibility verification via mobile 
application transactions, in order to accommodate future innovation in 
this area. The commenter stated that employers are not forensic 
document examiners and should be encouraged to use remote document 
acquisition and extraction solutions that, according to the commenter, 
are continually being improved, including via the use of artificial 
intelligence. The commenter stated that such applications could report 
fraud risk to the employer and that such applications could mitigate 
privacy risks. The commenter suggested that DHS work with NIST to 
develop minimum standards for such artificial intelligence-based fraud 
detection, while accounting for potential unintentional discrimination 
impacts. The commenter stated that a standardized remote mobile 
application process could in theory enable DHS to assure all employees 
are treated fairly and without discrimination.
    Response: Under the alternative procedure announced in the 
accompanying notice, DHS will require qualified employers who choose to 
use the alternative procedure to conduct a live video interaction with 
the employee, among other measures. The employee must first transmit a 
copy of the document(s) to the employer and then present the same 
document(s) during the live video interaction to ensure that the 
documentation reasonably appears genuine and related to the individual.
    DHS does not believe it is appropriate at this time to include an 
open-ended authorization for the use of mobile applications or 
artificial intelligence in this context. DHS will, however, continue to 
explore other alternative procedures that could allow employers to 
determine if documents reasonably appear to be genuine and relate to 
the individual who presents them. DHS may conduct further analysis and 
assessments into various technologies to ensure an equivalent level of 
security is met. DHS may also solicit further feedback from the public 
as appropriate prior to implementing additional alternative procedures 
for the Form I-9 document examination process. Any such changes will be 
noticed in the Federal Register. At this time, however, DHS is not 
requiring employers to use a specific technology as a condition of 
implementing the alternative procedure.
5. Utilize Other Forms of Remote Identity Verification
    Comment: Commenters asked why remote identity verification systems 
used by other government agencies cannot be used for the Form I-9 
process. Commenters stated that some federal government agencies 
currently use a third-party service to verify the identity of agency 
customers. Commenters also suggested that DHS work with state 
governments to access facial photos that would help employers verify 
the

[[Page 48007]]

identity of the individuals presenting Form I-9 documents.
    Response: DHS will continue to explore options to partner with 
other entities to ensure effectively implement the employment 
verification system consistent with law, while reducing unnecessary 
burdens to the extent feasible. As part of E-Verify, DHS currently 
leverages its own and other government databases such as those of the 
U.S. Department of State to access Employment Authorization Documents 
(Form I-766), Permanent Resident Cards (Form I-551) and U.S. passport 
and U.S. passport card images. DHS will continue to engage with a 
variety of stakeholders such as state motor vehicle administration 
representatives, government information specialists, technology 
professionals, and privacy and legal experts to understand how best to 
address the technical, privacy, and policy issues inherent in sharing 
sensitive identity information.
6. DHS Verification Mechanism
    Comment: Commenters suggested that DHS create a mechanism for 
employers to request DHS's assistance in checking the authenticity of a 
document if the employer questions the condition or authenticity of the 
document. Commenters stated that DHS should only allow employers to 
inspect documents that DHS can authenticate because it would encourage 
states to provide DHS access to their identification data and 
discourage fraud.
    Response: DHS agrees that the Form I-9 process is strengthened when 
the authenticity of documents can be verified. E-Verify is a mechanism 
by which employers can confirm the validity of most documents because 
it electronically compares information from numerous data sources, both 
internal and external to DHS, with the information provided on an 
employee's Form I-9. Specifically, E-Verify uses biographical records, 
such as name and date of birth, to confirm employment eligibility by 
determining if the records belong to an individual who is authorized to 
work with DHS records. At the same time, E-Verify checks the validity 
of U.S. passports, Permanent Resident Cards, and EADs with the issuing 
authority, 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 electronically compares employer-entered 
data with SSA records. E-Verify requires that all List B identity 
documents presented by employees contain a photo. E-Verify uses data 
sources available to DHS to electronically verify the identity 
information provided on most state-issued identification cards and 
driver's licenses.

H. Regulatory Analyses

1. Executive Order 12866 Analysis
    Comment: Commenters stated that the proposed rule failed to include 
an adequate economic analysis that effectively illustrated the costs 
and benefits of implementing the rule on the affected population, as 
well as on the government. Commenters further suggested that the NPRM 
failed to consider the costs associated with an alternative procedure 
or identify what an alternative option would entail. One commenter 
stated that the economic analysis is inconclusive because it addressed 
only the additional time needed for an employer to complete a new box 
on the Form I-9.\58\ A commenter requested that DHS calculate the time 
it takes for employers to locate an authorized representative in the 
cities and towns where newly hired employees reside.
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    \58\ DHS is adding a box to the Form I-9 that an employer (or an 
authorized representative acting on an employer's behalf) would 
select to indicate that the employee's documentation was examined 
consistent with the alternative procedure(s). DHS is also updating 
the instructions to the Form I-9 to provide additional information 
about the new box.
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    Response: DHS disagrees that it failed to include an adequate 
economic analysis of the effects of the NPRM. DHS proposed to authorize 
the use of an alternative procedure, see 87 FR at 50789-50790; 
specifically sought comment on a range of potential measures to include 
in such an alternative procedure, see 87 FR at 50790; and included an 
analysis under Executive Orders 12866 and 13563 that included 
quantitative estimates related to the proposed form changes and 
qualitative discussion of potential alternative procedures, see 87 FR 
at 50790-50792. Consistent with the NPRM, this final rule allows an 
alternative procedure only when certain conditions are met, including 
upon the Secretary's determination that such procedures offer an 
equivalent level of security. Also consistent with the NPRM, and 
following consideration of the comments received, DHS is announcing an 
alternative procedure in a separate Federal Register notice, 
concurrently published in today's edition of the Federal Register.
    Although not required, DHS has included in this final rule an 
analysis of the costs and benefits of the alternative procedure 
requirements outlined in the corresponding Federal Register notice. DHS 
acknowledges that employers face and consider diverse conditions when 
choosing how to inspect new employee documents but expects that 
employers who choose to use the alternative procedure will only do so 
if the benefits of doing so outweigh the costs. DHS therefore 
concludes, although not required to do so, that the alternative 
procedure would not have a significant economic impact on a substantial 
number of small entities.
2. Regulatory Flexibility Act (RFA)
    Comment: A commenter stated that the proposed rule would not 
guarantee that physical examination would remain an option to all 
employers and, therefore, lacked the assurance that small businesses 
would not be required to incur the costs associated with future remote 
inspection procedures. A commenter requested that DHS conduct another 
regulatory flexibility analysis to accompany any future actions 
announcing new alternative procedures because DHS's assertion that the 
rule does not have a significant economic impact on a substantial 
number of small entities is insufficient without further analysis.
    Response: The commenter's premise that this rule does not guarantee 
that physical in-person examination would remain an option to all 
employers is misplaced. This rule simply provides a framework that 
enables DHS to allow an optional alternative to the in-person physical 
documentation examination procedures. This rule in no way requires 
employers or employees to use an alternative procedure. See 8 CFR 
274a.2(b)(1)(ii). DHS reviewed this final rule in accordance with the 
Regulatory Flexibility Act (RFA) and determined that it does not impose 
any new requirements on employers. Employers may either physically 
examine, or otherwise examine pursuant to an authorized alternative 
procedure, identity and employment authorization documents to ensure 
they reasonably appear to be genuine and relate to the person 
presenting them to complete the Form I-9.
    Because participation in the alternative procedure is voluntary, 
DHS believes this rule will not have a significant economic impact on a 
substantial number of small entities and that employers who choose to 
use the alternative procedure will only do so if the benefits of doing 
so outweigh the costs. Moreover, the RFA analysis presented in the NPRM 
and in this final rule comply with the requirements of the RFA. Neither 
the APA nor the RFA require additional analysis.

[[Page 48008]]

3. Paperwork Reduction Act (PRA)
    Comment: In response to a call for comment regarding the accuracy 
of the burden estimate associated with the Form I-9, see 87 FR at 
50792, a commenter stated that completing the Form I-9 on a mobile 
application can reduce the estimated time for employers from an average 
of 21 minutes to approximately one minute. For employees who have their 
documentation ready, can read English, and do not require a notary, the 
commenter stated this burden is reduced from 17 minutes to 
approximately one and a half to four minutes to complete and sign the 
Form I-9.
    Response: DHS appreciates the suggestion and recognizes that the 
burden for employers to complete the Form I-9 may be lower for some 
employers and employees. DHS uses average estimates to account for 
employers and employees who may require additional time to complete the 
Form I-9. For this final rule, DHS is evaluating the impacts of the 
changes implemented through this rule, specifically the box added to 
the Form I-9 that an employer (or an authorized representative acting 
on an employer's behalf) must select to indicate that the employer is 
using any available alternative procedure(s), and to make corresponding 
edits to the form's instructions. DHS estimates these revisions will 
add one minute of burden to the overall Form I-9 burden. To isolate the 
impacts of this final rule, DHS is not making any other changes to the 
burden estimates in the current Collection of Information, OMB Control 
Number 1615-0047. DHS will consider any changes to the overall burden 
estimates during the regular renewal of the Collection of Information.
    Comment: A commenter stated that the Paperwork Reduction Act (PRA) 
request for comment was so broad that it did not reasonably permit a 
logical response.
    Response: DHS respectfully disagrees. In the NPRM, DHS estimated 
that if employers used an alternative procedure, it would take them one 
minute to read the revised instructions and mark the new box on the 
Form I-9 (if needed). See 87 FR at 50791. DHS also described multiple 
potential integrity measures to include in an alternative procedure, 
see 87 FR at 50790, and encouraged the public to provide comments on 
any burden(s) associated with using an alternative procedure, see 87 FR 
at 50791-50792. DHS also posted to the public docket proposed changes 
to the Form I-9 and its instructions.\59\ The preamble to the proposed 
rule contained an information collection notice in accordance with the 
PRA and invited comment on a range of potential changes to the 
collection of information. See 87 FR at 50792; 5 CFR 1320.11. DHS also 
called commenters' attention to the proposal to add boxes to Sections 2 
and 3 of the Form I-9 and to revise the form instructions to refer to 
alternative procedures should they be authorized. See 87 FR at 50792. 
In addition, DHS asked for 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 87 
FR at 50790.
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    \59\ See Table of Changes--Instructions for Form I-9 Employment 
Eligibility Verification (Aug. 19, 2022), available at https://www.regulations.gov/document/ICEB-2021-0010-0012 (last visited May 
18, 2023); Table of Changes Form I-9 Employment Eligibility 
Verification (Aug. 19, 2022), available at https://www.regulations.gov/document/ICEB-2021-0010-0010 (last visited May 
18, 2023).
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I. Out of Scope

1. Out of Scope Generally
    Comment: Commenters suggested that DHS take other actions that were 
well beyond the scope of the NPRM or DHS's authority, such as 
eliminating all Form I-9 requirements; enabling electronic signature 
programs to allay concerns about inaccurate signatures; extending the 
three-day timeframe for completing all Forms I-9; extending the time 
period for employees who have experienced a natural disaster or 
emergency that caused their identity or work authorization 
documentation to be lost or destroyed; adding certain documents (such 
as expired driver's licenses and concealed-carry licenses) to the List 
of Acceptable Documents; and clarifying whether the Form I-20, 
Certificate of Eligibility for Nonimmigrant Student Status, is a DHS-
issued document that falls under List A.
    Response: These comments are outside the scope of the rulemaking 
and require no further response.
2. M-274 Handbook for Employers
    Comment: Commenters requested clear and concise training materials 
when updates are made to the M-274 Handbook for Employers.\60\ 
Commenters suggested that it would be helpful if all current and 
previous Form I-9 ``procedures'' referenced in the M-274 Handbook for 
Employers were easily accessible for reference during periodic internal 
audits.
---------------------------------------------------------------------------

    \60\ 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 24, 2023).
---------------------------------------------------------------------------

    Response: All instructions and guidance for completing the Form I-
9, including information about the alternative procedure, will be 
available on I-9 Central. When any important updates are made to the I-
9 Central website and the M-274, Handbook for Employers, employers 
enrolled in E-Verify are informed about the changes when logging into 
E-Verify. Currently, DHS does not have a single, collected mechanism 
for employers to access previous Form I-9 guidance but will take this 
suggestion under consideration as it continues to explore ways to 
improve the Form I-9 process.

III. Statutory and Regulatory Requirements

    DHS developed this rule after considering numerous statutes and 
executive orders related to rulemaking. The below sections summarize 
the analyses based on a number of these statutes or executive orders.

A. Administrative Procedure Act

    The APA authorizes agencies to dispense with certain rulemaking 
procedures under certain circumstances. Although the APA typically 
requires a 30-day delayed effective date for substantive rules, 5 
U.S.C. 553(d)(1) provides that the 30-day delayed effective date 
requirement does not apply to a substantive rule that grants or 
recognizes an exemption or relieves a restriction. DHS has determined 
that this rule is exempt from the 30-day delayed-effective-date 
requirement on that basis. The rule creates a framework under which the 
Secretary can, as 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, authorize alternative 
documentation examination procedures with respect to some or all 
employers. Such an optional alternative would only be adopted on an 
optional basis and would relieve a restriction. The rule therefore 
falls squarely within the Sec.  553(d)(1) exception to the 30-day 
delayed effective date requirement.

B. Executive Orders 12866, 13563, and 14094: Regulatory Review

    Executive Orders 12866 (``Regulatory Planning and Review''), as 
amended by Executive Order 14094 (``Modernizing Regulatory Review''), 
and 13563 (``Improving Regulation and Regulatory Review'') direct 
agencies to assess the costs and benefits of available regulatory 
alternatives and, if regulation is

[[Page 48009]]

necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health, and safety 
effects, distributive impacts, and equity). Executive Order 13563 
emphasizes the importance of quantifying both costs and benefits, 
reducing costs, harmonizing rules, and promoting flexibility. The 
Office of Management and Budget (OMB) has designated this rule a 
significant regulatory action as defined under section 3(f) of E.O. 
12866, as amended by E.O. 14094, although not significant under section 
3(f)(1) because its annual effects on the economy do not exceed $200 
million in any year of the analysis. Accordingly, OMB has reviewed this 
rule.
    This final rule allows the Secretary to authorize alternative 
procedures as part of a pilot program, or upon the Secretary's 
determination that such procedures offer an equivalent level of 
security for Form I-9 document examination, 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 this final rule, DHS responds to the public comments on the 
NPRM. DHS is concurrently publishing a corresponding notice in the 
Federal Register that describes the framework for the optional 
alternative procedure to in-person examination of the Form I-9 
documentation. This final rule also addresses the potential impacts 
attributed to the alternative procedure announced in the corresponding 
Federal Register notice. It also assesses the cost associated with 
adding a box on the revised Form I-9 to indicate whether the 
alternative procedure was applied. A regulatory assessment follows, 
pursuant to OMB Circular A-4. DHS expresses quantified impacts in 2022 
dollars.
1. Summary of the Analysis
    The rule allows the Secretary to authorize an optional alternative 
procedure to the physical examination of the documents that employees 
must present to their employers for the completion of the Form I-9. 
Without this rule (or without the Secretary's authorization of an 
alternative procedure, even if the rule were in place), employers 
would, in all situations, be required to physically examine the Form I-
9 documents of an employee in person as was practiced prior to the 
COVID-19-related flexibilities. However, with this rule in place and 
with the corresponding notice, the Secretary is establishing an 
alternative procedure that will allow for remote examination of I-9 
documents for qualified employers.
    The finalization of this rule is not anticipated to have any 
compliance costs because it simply establishes a path for the Secretary 
to establish an alternative procedure. Because the Secretary is at the 
same time authorizing an alternative procedure, following review of the 
comments received, as announced by DHS in a notice concurrently 
published in today's edition of the Federal Register, DHS has chosen to 
include an analysis of that alternative procedure in this final rule. 
Under the alternative procedure, qualified employers will have the 
option to apply an alternative method of examining Form I-9 documents 
presented by employees to ensure they appear to be genuine and to 
relate to the individual. This option will be extended to all new 
employees (and those who require reverification) of qualified employers 
who are enrolled in E-Verify, whether or not those employees will be 
working in a remote setting.
    The alternative procedure has the potential to produce cost savings 
and benefits to both the public and the government while also imposing 
various costs. Employers who may exercise this option are required to 
be enrolled in good standing in E-Verify, examine copies of documents 
for new employees, conduct a live video interaction with the employee, 
undergo training, and maintain records.
    Because the alternative procedure is optional for qualifying 
employers, DHS anticipates that any employer will likely only make use 
of the alternative procedure when it is in their interest to do so--
that is, when the benefits and cost savings exceed the costs. 
Therefore, in the absence of any direct and substantial impact of the 
alternative procedure on the government or other entities, the 
alternative procedure is almost certainly net beneficial. Precisely 
quantifying those net benefits, however, would be complex and 
inherently uncertain, due to the diversity of employers and the range 
of geographic and other circumstances of new employees. In the 
discussion below, DHS includes quantitative analysis where feasible.
    Over 1.1 million employers are enrolled in E-Verify, with an 
estimated 70,565 new employers enrolling each year.\61\ In 2022, E-
Verify employers used the system to check over 48 million new 
hires.\62\ DHS believes that employers may be most likely to use the 
alternative procedure for employees hired in remote positions or for 
those for whom reporting to the office is difficult, although non-
remote employees can participate as well. DHS estimates that 
approximately 16 percent of new employee cases created by E-Verify 
enrolled employers, or approximately 7.7 million per year, will be 
remote positions for which the employer would be motivated to use an 
alternative to in-person examination of Form I-9 identification 
documents.
---------------------------------------------------------------------------

    \61\ USCIS, E-Verify Usage Statistics, available at https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-usage-statistics (last updated Jan. 12, 2023).
    \62\ Available at https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance (last visited March 24, 2022).
---------------------------------------------------------------------------

    Allowing for the remote examination of Form I-9 documents will 
allow employers to gain operational and administrative efficiencies, 
which may result in fewer mistakes in completing the Form I-9 and save 
on third-party verification costs. Additionally, employees may also 
benefit from the alternative procedure in the form of expanded work 
opportunities, travel cost-savings, and supplemental benefits relating 
to avoided travel. DHS estimates that if qualified employers use the 
authorized procedure for the 16 percent of new employees estimated to 
be remote, employers and employees will save between $281.1 million and 
$476.6 million in avoided travel time and costs per year. As a result 
of these benefits, DHS expects the availability of the alternative 
procedure to increase the number of employers who enroll in E-Verify 
annually. Employers who enroll in E-Verify to exercise this option will 
help to ensure that documents presented by the employee are valid and 
unexpired because the system compares their documents against various 
government databases.
    An employer's voluntary decision to use the alternative procedure 
may also result in costs to participating employers and employees. 
These costs may include time for familiarization with the requirements 
of the alternative procedure; time for employers to read the updated 
Form I-9 instructions; time for employees to provide electronic copies 
of documents and employers to store them; and time for enrollment and 
use of E-Verify for employers who choose to enroll in the program to 
use the alternative procedure. ICE estimates that reading the new 
checkbox instructions when onboarding each new employee will cost 
employers $59.9 million per year and familiarization

[[Page 48010]]

with the requirements of the alternative procedure will cost employers 
$3.4 million in the first year.
    The implementation of the alternative procedure outlined in the 
accompanying Federal Register notice will produce the following 
effects, relative to the baseline of how Form I-9 documents were 
inspected prior to the COVID-19 flexibilities (see Table 1).\63\ Not 
all employers and employees will realize all the potential impacts 
described below.
---------------------------------------------------------------------------

    \63\ The COVID-19 flexibilities will sunset on July 31, 2023. 
See ICE, ICE Updates Form I-9 Requirement Flexibility to Grant 
Employers More Time to Comply with Requirements (May 4, 2023), 
available at www.ice.gov/news/releases/ice-updates-form-i-9-requirement-flexibility-grant-employers-more-time-comply (last 
visited May 24, 2023).

                  Table 1--Summary of Expected Impacts
------------------------------------------------------------------------
          Provision                   Cost                 Benefit
------------------------------------------------------------------------
Use of Optional Procedures     Burden of     Travel time
 by E-Verify Participants.     time for qualified    and cost savings
                               employers to          for employer and
                               familiarize with      employees.
                               the notice.           Cost
                               Burden of     savings to
                               time for all          employers from
                               employers to review   removing the need
                               revised I-9 Form      for third-party
                               instructions for      verification.
                               each new hire.        Improved
                               Employers     operational and
                               who enroll in E-      administrative
                               Verify in order to    efficiencies,
                               use the alternative   resulting in fewer
                               procedure will also   mistakes.
                               incur the following   Additional
                               costs:.               security from use
                               Burden of     of E-Verify (New E-
                               time for E-Verify     Verify enrollees).
                               enrollment.           Improved
                               Burden of     staffing reach/
                               time to use E-        diversity.
                               Verify, including     Potential
                               time to copy or       saving on building
                               scan Form I-9         space, work
                               documentation.        equipment, etc.
                               Burden for    Advances
                               employees to make a   equity for workers
                               copy of               for whom it is
                               identification        difficult or
                               documents and send    impossible to
                               via email or other    travel to an
                               electronic means.     office.
                                                     Potential
                                                     increased
                                                     employment
                                                     opportunities due
                                                     to remote
                                                     verification
                                                     option.
Document Retention..........   Burden for    Improved
                               qualified employers   accuracy of
                               to collect and/or     recordkeeping.
                               retain copies of      Provides
                               identification        audit trail to flag
                               documents             suspected
                               (Employers must       fraudulent
                               retain copies of      documents during
                               employee              audits.
                               documentation with
                               Form I-9; Form I-9
                               retention calls for
                               three years after
                               the date of hire,
                               or one year after
                               the date employment
                               ends, whichever is
                               later.) This burden
                               may also have other
                               impacts due to
                               privacy laws in
                               certain States.
------------------------------------------------------------------------

2. Background, Need, and Assumptions
    The use of in-person examination as the sole means of verifying 
documents for the Form I-9 has presented several limitations in the 
wake of both technological advancements and global events. For example, 
one of the primary changes to the U.S. economy that came as a result of 
the COVID-19 pandemic was the increased adoption of telework and remote 
work arrangements for employees. This was enabled by new technology and 
work arrangements which made it possible for employees to work without 
physically reporting to an employer worksite on a regular basis. As 
these arrangements became more commonplace, so too did the impression 
by employers that the burden to coordinate, schedule, and verify 
employment eligibility by physically examining I-9 identification 
documents in person could be significantly reduced through the means of 
an alternative procedure. Such an alternative would no longer require 
that new employees expend the time and risk of transporting these 
documents for examination, while allowing employers to save on third-
party verification and increase operational efficiencies. As a result, 
and for the reasons explained earlier in this preamble, DHS believes it 
is prudent to offer an alternative option for examining employees' 
identity and employment authorization documents.
    This rule amends regulations to allow the Secretary to authorize an 
optional alternative for examining the documentation presented by 
individuals seeking to establish identity and employment authorization 
for the purpose of completing the Form I-9. DHS is announcing an 
optional alternative procedure through a Federal Register notice that 
will be published concurrently with this final rule and which describes 
the procedure.
    The measures comprising the alternative procedure will continue to 
ensure the integrity of the employment eligibility verification 
process. E-Verify provides employers with assurance that certain 
employee identity and employment authorization documentation is genuine 
by electronically comparing the information with data available to DHS. 
Employers choosing to use the alternative procedure also will conduct a 
live video interaction with the employee presenting the document(s) to 
ensure that the documentation appears reasonably related to the 
individual presenting them. The employee must first send a copy of the 
document(s) to the employer and then present the same document(s) 
during the live video interaction. Providing fraud awareness training 
to new E-Verify users provides employers with up-to-date information 
about fraud detection and instills an additional safeguard against its 
occurrence. The retention of Form I-9 documentation supports DHS 
auditors in enforcing Form I-9 requirements for employers who 
participate in alternative procedures.
    DHS estimates the economic effects of the alternative procedure 
will be sustained indefinitely. DHS bases this analysis on the 
following information:
    (1) The parameters for the alternative procedure are not set nor 
determined by this analysis, but rather are set by the Secretary in the 
accompanying Federal Register notice.
    (2) The alternative procedure described in the Federal Register 
notice includes remote examination of copies of acceptable Form I-9 
identification documents by E-Verify enrolled employers (or an 
authorized representative acting on the employer's behalf) for new 
employees and those whose employment eligibility is being reverified to 
work in the United States. The term `remote examination' in this 
analysis refers to the remote

[[Page 48011]]

examination of digital or original copies of Form I-9 documents that 
have been submitted (via mail or online) to employers by employees. The 
details for conducting this alternative procedure are described below.
    (3) The alternative procedure offers a level of security equivalent 
to in-person inspection of the Form I-9 documents. Accordingly, DHS 
believes use of the alternative procedure will not materially increase 
rates of fraud or error for qualified employers.
    (4) Any employer opting to exercise the alternative procedure does 
so because they perceive that the gains to efficiency, and time and 
materials cost savings of this alternative, outweigh the costs of 
enrollment and use of E-Verify and required document retention. Given 
the strongly positive public response to the current flexibilities, DHS 
expects the majority of employers who desire the benefits of the 
alternative procedure are also willing to incur the costs, as 
applicable, depicted in the analysis below.
Affected Population
    This alternative procedure primarily affects E-Verify enrolled 
employers, including employers who enroll in E-Verify in order to take 
advantage of the alternative procedure, and their new employees. In 
accounting for any costs, cost-savings, and benefits to these affected 
populations, DHS utilized the following information:
    To estimate the population of E-Verify-enrolled employers, DHS 
assessed account data from 2021, and found the total number of E-Verify 
enrollees to be 1.1 million. To determine the number of active E-Verify 
enrolled employers, DHS eliminated accounts with inactive or slow 
hiring and accounts for businesses who had shut down but not closed 
their E-Verify accounts. DHS determined that there remained 292,195 
employers who have created at least one E-Verify case within the 
preceding 12 months. These were considered current ``active'' accounts. 
Then, for these active accounts, the current number of total active 
users was 496,732.\64\ In addition, DHS reviewed this data across 
consecutive years and determined that the average number of newly 
enrolled employers was 70,565 per year. DHS will use these figures in 
estimating the costs and benefits to employers. The alternative 
procedure may prompt additional employers to enroll in E-Verify to take 
advantage of the flexibilities provided; however, because the 
alternative procedure is new relative to the baseline, and may alter 
the trend in usership, ICE is not able to estimate the number of new 
enrollees into E-Verify, but rather provides point estimates for the 
unit cost faced by new enrollees.
---------------------------------------------------------------------------

    \64\ 1.7 users per account = 496,732 total active users/292,195 
active employers.
---------------------------------------------------------------------------

    Next, DHS examined the number of new employees hired by qualified 
employers. Reviewing data provided by E-Verify, DHS determined that the 
number of new cases created by employers in fiscal year 2022 was 
48,042,413, with each case representing a new hire.\65\ To estimate the 
affected employee population for the purposes of this analysis, DHS 
assumes employees applying for remote positions are those most likely 
to use the alternative procedure, although non-remote employees can 
participate in the alternative procedure as well.
---------------------------------------------------------------------------

    \65\ Available at https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance (last visited June 8, 2023).
---------------------------------------------------------------------------

    Accordingly, DHS examined a number of sources that estimated the 
percentage of the U.S. workforce that will fully utilize remote work in 
2022 and beyond. Data in this regard covers a broad range of contexts 
and is often dependent on factors such as the type of industry and 
whether employers offer full or part-time remote work. For example, 
according to a Business Response Survey conducted between July and 
September 2020, 31 percent of establishments increased telework offered 
to employees because of the COVID-19 pandemic.\66\ Notably, there was 
substantial variation by establishment size and industry. Large 
establishments (those with 500 or more employees) were more than twice 
as likely to have increased telework than were smaller establishments. 
In the sectors of educational services, finance and insurance, 
information, and management of companies, more than 50 percent of 
establishments increased telework. By contrast, in both agriculture and 
accommodation and food services, less than 10 percent of establishments 
did so.\67\
---------------------------------------------------------------------------

    \66\ U.S. Bureau of Labor Statistics, 2020 Results of the 
Business Response Survey, available at https://www.bls.gov/brs/2020-results.htm (last visited May 3, 2023).
    \67\ See U.S. Bureau of Labor Statistics. (n.d.). Telework 
during the COVID-19 pandemic: Estimates using the 2021 business 
response survey: Monthly labor review. U.S. Bureau of Labor 
Statistics, available at https://www.bls.gov/opub/mlr/2022/article/telework-during-the-covid-19-pandemic.htm (last visited May 24, 
2023).
---------------------------------------------------------------------------

    Data on economy-wide full-time remote work also vary. Although 
there is general agreement that companies are making long-term plans to 
embrace remote work to a greater degree than before the COVID-19 
pandemic, there is still debate around the extent to which workplaces 
will remain remote. Specifically, there is debate regarding whether 
firms will mostly utilize a fully remote model, or a hybrid approach 
that requires workers to come into the office a few days a week. Using 
data from the 2021 Business Response Survey, DHS found that between 
July and September 2021, 13 percent of jobs in U.S. private sector 
businesses involved teleworking full time and 22 percent involved 
teleworking at least some of the time. One-third (33 percent) of 
establishments increased telework for some or all employees during the 
COVID-19 pandemic.\68\ DHS found another source that tracked remote 
work availability from North America's largest 50,000 employers, 
projecting that 25 percent of all high paying jobs will be available 
remotely by 2022.\69\ Similarly, another source found that as of 2022, 
26 percent of U.S. employees were working remotely, and projected that 
by 2025, there could be as many as 36.2 million Americans working 
remotely.\70\ Another study estimated that fully remote workers would 
represent some 27.7 percent of the workforce by 2022.\71\
---------------------------------------------------------------------------

    \68\ Ibid.
    \69\ 25% of all professional jobs in North America will be 
remote by end of . . . (n.d.)., 2022, available at https://www.theladders.com/press/25-of-all-professional-jobs-in-north-america-will-be-remote-by-end-of-next-year (last visited May 24, 
2023).
    \70\ 25 trending remote work statistics [2022]: Facts, trends, 
and projections. Zippia 25 Trending Remote Work Statistics 2022 
Facts Trends and Projections Comments. (n.d.), available at https://
www.zippia.com/advice/remote-work-statistics/
#:~:text=26%25%20of%20U.S.% 20employees%20work,U.S.% 
20companies%20are%20fully%20remote (last visited May 24, 2023).
    \71\ ``Future Workforce Report 2021, Ozimek, Adam, Upwork, 
available at www.upwork.com/research/future-workforce-report (last 
visited October 12, 2022).
---------------------------------------------------------------------------

    DHS also examined which industries, based on NAICS codes, contained 
the highest concentration of remote work employment, and then compared 
this information with the NAICS codes of businesses which utilized E-
Verify in 2022.\72\ DHS first reviewed E-Verify usage statistics for 
each industry sector (via NAICS codes) to determine which industries 
are the most likely to use E-Verify. DHS then utilized BLS Telework 
data based on a 2021 Business Response Survey \73\ to determine the 
percentage of

[[Page 48012]]

full-time telework positions within each industry sector (via NAICS 
code), from which DHS then assigned a percentage of full-time telework 
to each E-Verify industry sector. Lastly, DHS utilized BLS Industry-
Specific Occupational Employment and Wage Statistics \74\ to determine 
the employee populations for each industry. Table 2 depicts this 
information below. Across all hiring sites, DHS found that some 16 
percent of positions hired through E-Verify represented positions which 
were likely to be full-time telework. This figure likely represents a 
lower bound estimate since DHS expects E-Verify users to have a higher 
tendency toward hiring full-time telework employees when compared to 
other employers because the use of E-Verify provides additional 
flexibility to employers who hire full-time telework positions via the 
alternative procedure. In addition, DHS recognizes that qualified 
employers may use the alternative procedure for positions other than 
those that are fully remote in order to, for example, consolidate HR 
functions.
---------------------------------------------------------------------------

    \72\ See https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-usage-statistics (last visited May 24, 2023).
    \73\ U.S. Bureau of Labor Statistics. (n.d.). Telework during 
the COVID-19 pandemic: Estimates using the 2021 business response 
survey: Monthly labor review. U.S. Bureau of Labor Statistics 
available at https://www.bls.gov/opub/mlr/2022/article/telework-during-the-covid-19-pandemic.htm (last visited May 24, 2023).
    \74\ U.S. Bureau of Labor Statistics. (2022, March 31). May 2021 
National Industry-Specific Occupational Employment and Wage 
Estimates. U.S. Bureau of Labor Statistics, available at https://www.bls.gov/oes/2021/may/oessrci.htm (last visited May 24, 2023).

               Table 2--Estimated Population of E-Verify Industries With Full-Time Telework (2022)
----------------------------------------------------------------------------------------------------------------
              E-Verify top 20 industries nationwide                 Remote (%)     Employee pop.     % of pop.
----------------------------------------------------------------------------------------------------------------
541--PROFESSIONAL, SCIENTIFIC, AND TECHNICAL SERVICES...........            30.8       9,606,220       2,958,716
722--FOOD SERVICES AND DRINKING PLACES..........................             0.7      11,651,910          81,563
561--ADMINISTRATIVE AND SUPPORT SERVICES........................            30.8       8,904,300       2,742,524
238--SPECIALTY TRADE CONTRACTORS................................             3.3       4,701,140         155,138
621--AMBULATORY HEALTH CARE SERVICES............................             7.4       7,747,840         573,340
813--RELIGIOUS, GRANTMAKING, CIVIC, AND PROF. ORG...............            13.4       1,214,290         162,715
624--SOCIAL ASSISTANCE..........................................             7.4       3,918,800         289,991
611--EDUCATIONAL SERVICES.......................................            20.3      12,488,260       2,535,117
551--MANAGEMENT OF COMPANIES AND ENTERPRISES....................            30.8       2,540,030         782,329
423--MERCHANT WHOLESALERS, DURABLE GOODS........................            14.6       5,556,180         811,202
522--CREDIT INTERMEDIATION AND RELATED ACTIVITIES...............            27.5       2,622,670         719,923
811--REPAIR AND MAINTENANCE.....................................            13.4       1,306,120         175,020
236--CONSTRUCTION OF BUILDINGS..................................             3.3       1,619,240          53,435
519--OTHER INFORMATION SERVICES.................................            52.2         362,800         189,382
448--CLOTHING AND CLOTHING ACCESSORIES STORES...................             3.7       1,031,410          38,162
531--REAL ESTATE................................................            30.8       1,671,940         514,958
623--NURSING AND RESIDENTIAL CARE FACILITIES....................             7.4       3,062,530         226,627
452--GENERAL MERCHANDISE STORES.................................             3.7       3,084,830         114,139
446--HEALTH AND PERSONAL CARE STORES............................             3.7       1,008,900          37,329
                                                                 -----------------------------------------------
    Total.......................................................  ..............      84,099,410      13,161,610
        Total Percent of Full-Time Remote Employees.............  ..............  ..............              16
----------------------------------------------------------------------------------------------------------------

    Based on the research above, studies show that the percentage of 
workers that work remotely is between 13 and 28 percent. Given this 
range of estimates, there is uncertainty regarding the precise number 
of E-Verify employees that will be remote workers. However, DHS uses 
the analysis shown in Table 2 to estimate that as of 2022, 
approximately 16 percent of new employee cases created by E-Verify 
enrolled employers (or 7,686,786) will be remote positions for which 
the employer would be motivated to use an alternative to in-person Form 
I-9 identification document inspection. This figure likely represents a 
lower bound estimate of the affected population due to the range for 
both full and part-time remote work estimates, as well as the various 
other compulsions for employers to desire flexibilities to in-person 
inspection, but DHS has selected it to avoid inflating the possible 
impact of the alternative procedure.
Baseline Analysis
    All U.S. employers are required to properly complete Form I-9 for 
each individual they hire for employment in the United States. Prior to 
COVID-19 flexibilities, employees would attest to their employment 
authorization on the form and present (in-person) their employer with 
acceptable documents as evidence of identity and employment 
authorization. The employer would then physically examine these 
documents to determine whether they reasonably appear to be genuine and 
relate to the employee, then record the document information on the 
employee's Form I-9. Employers would also retain the Form I-9 for a 
designated period and make it available for inspection by authorized 
government officers. Employers conducting a physical examination of the 
documentation presented by employees may choose to keep a copy of 
documentation presented by employees when completing the Form I-9, but 
they are not required to do so, with the exception of certain documents 
required by E-Verify, if the employer participates in E-Verify.\75\ 
However, if copies of an employee's Form I-9 documents are retained for 
reasons unrelated to E-Verify requirements, they must be retained for 
all employees, regardless of actual or perceived national origin or 
citizenship, or immigration status.\76\
---------------------------------------------------------------------------

    \75\ E-Verify requirements regarding the copying of 
documentation only apply to initial completion of Form I-9 and not 
to reverification, since E-Verify cannot be used to complete the 
reverification process.
    \76\ See Handbook for Employers M-274, section 9.2 Retaining 
Copies of Form I-9 Documents, available at https://www.uscis.gov/i-9-central/handbook-for-employers-m-274/90-retaining-form-i-9/92-
retaining-copies-of-form-i-9-documents (last visited May 26, 2023).
---------------------------------------------------------------------------

    E-Verify, authorized by Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996, is a web-based system through which 
employers electronically confirm the employment eligibility of their 
employees. In the E-Verify process, employers create cases based on 
information taken from an employee's Form I-9. E-Verify then 
electronically compares that information to records available to DHS 
and the SSA. The employer then receives a response either confirming 
the employee's employment eligibility

[[Page 48013]]

or indicating that the employee needs to take further action to 
complete the case.
    Since its inception, USCIS and the SSA have taken actions believed 
to have improved the accuracy of E-Verify and reduced opportunities for 
unauthorized workers to use fraudulent documents to gain employment. 
USCIS has added tools to help identify fraudulent documents, expanded 
the number of databases queried through E-Verify, and instituted 
quality control procedures to screen for data entry errors.\77\ The 
benefits of using E-Verify have increased over time as the program has 
made advancements to improve user experience, reduce errors and 
increase the speed and accuracy of the employment eligibility 
verification process. This includes validating driver's license data 
for most states, providing source system photos for Passports, EADs, 
and PRCs, enhancing usability features that help users enter correct 
information, streamlining case creation and management to increase 
speed and accuracy, and improving overall data integrity and system 
compliance. Currently, 98.39 percent of employees are automatically 
confirmed as authorized to work (``work authorized'') either instantly 
or within 24 hours, requiring no employee or employer action.\78\
---------------------------------------------------------------------------

    \77\ See Gao-11-146 employment verification: Federal agencies 
have taken steps . . . (n.d.), available at https://www.e-verify.gov/sites/default/files/everify/data/EVerifyGAOReport2010.pdf 
(last visited May 24, 2023).
    \78\ See Verify performance. E. (n.d.), available at https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance 
(last visited May 24, 2023).
---------------------------------------------------------------------------

Alternative Procedure
    Under the alternative procedure, only employers (or an authorized 
representative acting on the employer's behalf) enrolled in E-Verify, 
who completed all required E-Verify training, and who are in good 
standing in E-Verify, are qualified to apply alternative procedures. 
These ``qualified employers'' may opt to apply alternative procedures. 
To conduct alternative procedures, qualified employers will:
    1. Examine copies (front and back, if the document is two-sided) of 
Form I-9 documents \79\ or an acceptable receipt \80\ to ensure that 
the documentation presented reasonably appears to be genuine;
---------------------------------------------------------------------------

    \79\ The Lists of Acceptable Documents are included with the 
Form I-9.
    \80\ 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 may complete Section 2 of 
the Form I-9 or conduct reverification on the Form. 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 employee 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; \81\
---------------------------------------------------------------------------

    \81\ 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, i.e., 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,\82\ a clear and 
legible copy of the documentation, (front and back, if the 
documentation is two-sided), of all documents examined in a paper or 
electronic formator in an acceptable combination of such formats, for 
as long as the employee works for the employer and for a specified 
period after employment has ended; \83\ and
---------------------------------------------------------------------------

    \82\ See 8 CFR 274a.2(b)(3), (e), (f), (g).
    \83\ 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 May 24, 
2023).
---------------------------------------------------------------------------

    5. In the event of a Form I-9 audit or investigation by a relevant 
federal government official, make available copies of the identity and 
employment authorization documentation presented by the employee for 
document examination in connection with the employment eligibility 
verification process.\84\
---------------------------------------------------------------------------

    \84\ See 8 U.S.C. 1324a, 1324b; 8 CFR part 274a; 28 CFR part 44.
---------------------------------------------------------------------------

    Given the hard-to-quantify benefits of physical inspection and lack 
of data, DHS is proceeding with an alternative procedure that does not 
require the physical examination of acceptable documents, but instead 
includes additional requirements to offer an equivalent level of 
security, in exercise of the Secretary's authority at 8 CFR 
274a.2(b)(1)(ix)(B). The notice describes the framework for an optional 
alternative procedure to physical examination of the Form I-9 
documentation that offers an equivalent level of security.
3. Benefits of the Alternative Procedure
    Use of the alternative procedure is expected to produce benefits 
for the public. Employers using the alternative procedure may realize 
administrative efficiencies relating to document examination through 
reduced travel on the part of HR specialists and employees and the 
ability to consolidate and specialize this HR function. This in turn 
may result in fewer mistakes in completing the Form I-9. Employees may 
also benefit in the form of expanded work opportunities, travel cost-
savings, and supplemental benefits relating to avoided travel. Finally, 
employers who choose to enroll in E-Verify in order to exercise this 
option will help to ensure that documents presented by the employee are 
valid and unexpired by comparing to various government databases.
Operational Efficiency
    Use of the alternative procedure may provide convenience to 
employers with operations in more than one location. For example, Human 
Resources staff who are responsible for verifying the employment 
eligibility and identity of all new employees could exercise the option 
to work remotely rather than staffing multiple locations or traveling 
between locations when new employees are on-boarded. This may enable 
employers to benefit from time and cost savings. Additionally, 
companies with multiple U.S. locations could consolidate Form I-9 
inspection operations and document storage as they will no longer need 
to train and maintain in-person staff across multiple locations under 
the alternative procedure. Managers and supervisors, rather than an HR 
specialist, who may perform document verification simply because they 
are on-site would no longer need to spend time performing

[[Page 48014]]

this collateral duty. The time and cost savings from providing an 
alternative to in-person verification (e.g., employee travel to a 
designated company location, efficiencies in processing documents, 
etc.) would be realized by all employers who utilize the alternative 
procedure. Because the beneficial outcomes of these new efficiencies 
would vary across industries, DHS is unable to quantify these benefits.
Fewer Mistakes
    Remote examination will likely mean that employers will spend less 
time on corrections, have fewer mistakes, complete the form with 
greater efficiency, and ensure a more compliant process.
Equity
    The alternative procedure provides qualified employers with the 
ability to remotely meet the examination requirements of 8 U.S.C. 
1324a(b)(1). Use of the alternative procedure reduces ``time taxes'' 
and has the potential to promote equity. Such changes will advance 
equity in particular for employees for whom traveling to the workplace 
may be difficult or impossible. In addition, employers will more easily 
be able to provide an inclusive work environment for physically 
disabled employees. DHS recognizes the value of these benefits, which 
are consistent with the goals of Executive Order 14058, Transforming 
Federal Customer Experience and Service Delivery to Rebuild Trust in 
Government.
Secondary Benefits of the Alternative Procedure
    To the extent that some employers may choose to enroll in E-Verify 
in order to use the alternative procedure, a secondary benefit of the 
alternative procedure is the additional security benefits to the public 
from increased use of the system. E-Verify ensures that documents 
presented by the employee are valid and unexpired because the system 
compares their documents against various government databases.
    An additional secondary effect of the alternative procedure is that 
qualified employers will have more flexibility in hiring employees who 
work in remote settings, thereby increasing their access to quality 
applicants, regardless of their location. Furthermore, the greater 
flexibility that employers have in hiring could translate into greater 
employment prospects for individuals who cannot easily travel for in-
person inspections of their Form I-9 documents. DHS does not attempt to 
quantify these impacts, though it anticipates the impact will be real 
and positive.
    Finally, a secondary effect of providing an alternative method to 
physical examination of identity and employment authorization 
documentation is that some qualified employers may expand their remote 
position offerings, leading to less demand for the office space 
required to house their workforce. According to research conducted by 
Global Workplace Analytics, the average business can save up to $11,000 
in office space costs per year for each halftime remote worker.\85\ The 
reduced need to house staff means that companies can save on rent, 
utilities, insurance, and other expenses. These benefits are undefined 
and are expected to vary greatly across employers, so DHS does not 
attempt to quantify them.
---------------------------------------------------------------------------

    \85\ Latest work-at-home/telecommuting/remote work statistics. 
Global Workplace Analytics, (2022, January 18), available at https://globalworkplaceanalytics.com/telecommuting-statistics (last visited 
May 24, 2023).
---------------------------------------------------------------------------

4. Costs and Cost Savings of the Alternative Procedure
    An employer's voluntary decision to implement the alternative 
procedure may result in costs to participating employers and employees. 
These costs may include time for familiarization with the requirements 
of the alternative procedure; costs for employers to read the updated 
Form I-9 instructions about use of the checkbox; costs for employees to 
provide electronic copies of documents and to employers to store them; 
and costs to employers who choose to enroll in E-Verify to use the 
alternative procedure. Not all employers will incur all of these costs. 
In the discussion below, DHS quantifies these costs where feasible.
Quantified Costs of the Alternative Procedure
    Familiarization--A likely impact of the final rule is that various 
individuals and entities will incur costs for familiarization with the 
provisions of the alternative procedure. Familiarization costs involve 
the time spent reviewing and learning the provisions of the notice and 
are a direct cost of the alternative procedure.
    At approximately 3,900 words, DHS estimates the time that would be 
necessary to read the Federal Register notice would be approximately 13 
to 16 minutes per person, resulting in opportunity costs of time. DHS 
uses the Federal Register notice word count instead of this final rule 
because the notice outlines the parameters of the alternative procedure 
and the requirements for E-Verify employers to use the alternative 
procedure. Congruent with other DHS regulatory impact analyses, DHS 
assumes the average professional reads technical documents at a rate of 
about 250 to 300 words per minute.\86\ Entities, such as private 
business and government organizations, may have more than one person 
who reads the notice. Using the average hourly rate of total 
compensation as $39.75 for all occupations (both civilian and 
private),\87\ DHS estimates that the opportunity cost of time will 
range from $8.63 to $10.34 (in 2022 dollars) per individual who must 
read and review the notice in the first year of its publishing.\88\
---------------------------------------------------------------------------

    \86\ See 87 FR 10570, Feb. 24, 2022; See also, 87 FR 18078, Mar. 
29, 2022.
    The benchmark of 250 to 300 words per minute applies to most 
adults, according to several reports. See, e.g., HealthGuidance.org, 
What Is the Average Reading Speed and the Best Rate of Reading? 
(Jan. 3, 2020), available at https://www.healthguidance.org/entry/13263/1/what-is-the-average-reading-speed-and-the-best-rate-of-reading.html (last visited May 24, 2023); ExecuRead, Speed Reading 
Facts, available at https://secure.execuread.com/facts/(last visited 
May 24, 2023). It is noted that the reading of technical material 
can be slower than other types of documents. Because this document 
is technical in some ways, the actual review time might be higher, 
thus resulting in higher familiarization costs than reported herein. 
Calculation: 24,000 words/300 words per minute = 80 minutes; 24,000 
words/250 words per minute = 96 minutes.
    \87\ Average Total Compensation (wages and benefits) for 
civilian workers and private industry workers, available at https://www.bls.gov/news.release/archives/ecec06162022.pdf (last visited May 
24, 2023).
    \88\ Calculation: (($40.90 total compensation for civilian 
workers + $38.61 total compensation for private industry workers)/2) 
* (Time (in minutes) to read notice--(lower or upper bound)) = 
(Opportunity cost of time [OCT] to read notice) = $39.75 * 0.217 
hours = $8.63; = $39.75 * 0.26 hours = $10.34. Word count estimated 
as of May 31, 2023.
---------------------------------------------------------------------------

    In establishing a population estimate, DHS expects a minimum 
familiarization cost associated with employers who use E-Verify, as 
they are most affected by the optional alternative procedure 
established by the Federal Register notice issued concurrently with 
this final rule. To estimate this population, DHS utilized data from E-
Verify and counted the total number of active E-Verify accounts, which 
was 292,195 as of December 2021. We assume that the same number of 
entities would incur the costs to familiarize themselves with the 
alternative procedure. Assuming, at a minimum, that one person from 
each entity would be responsible for reading the notice, the total 
familiarization cost would range from $3,100,189 to $3,716,720 (in 2022 
dollars). The average of this estimated range for familiarization, 
$3,408,455 will be used

[[Page 48015]]

in the accounting of the first year of the cost of this rule (Table 3).

                Table 3--Summary of Familiarization Cost
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Cost to familiarize with alternative procedure notice
------------------------------------------------------------------------
Word Count.................................................        4,800
Words Per Minute High......................................          300
Words Per Minute Low.......................................          250
Range to Read Rule (Minutes to Read):
  High.....................................................        16.00
  Low......................................................        19.20
Rate of Total Compensation (Per Hour):
  Civilian Workers.........................................       $40.90
  Private Industry Workers.................................       $38.61
  Average..................................................       $39.75
Familiarization Cost Per Person (Rate per Words per
 Minute):
  High.....................................................       $10.61
  Low......................................................       $12.72
Average per Entity Cost....................................       $11.67
Number of Entities.........................................      292,195
                                                            ------------
      Total Familiarization Cost...........................   $3,408,455
------------------------------------------------------------------------

    Review Revised Form I-9 Instructions--As a part of this final rule 
DHS is adding a box to the Form I-9 that an employer (or an authorized 
representative acting on an employer's behalf) must select if they 
elect to utilize the alternative procedure(s) and adding corresponding 
edits to the Form I-9 instructions. DHS estimates that it will take an 
employer one minute, or 0.02 hours (1 minute/60 minutes), to read the 
revised instructions about the box (indicating the employer used an 
alternative procedure) and mark the box, if needed. Employer population 
estimates for this cost are taken from the existing Collection of 
Information, titled ``Employment Eligibility Verification,'' OMB 
Control Number 1615-0047. DHS uses the same employer estimates to 
maintain consistency and to capture the changes as a result of this 
final rule. DHS estimates the total number of Forms I-9 completed by 
employers annually is 75,295,000. For the purposes of this analysis DHS 
assumes that in the future the number of Forms I-9 completed by 
employers would remain about the same. Assuming all employers read the 
revised instructions about the new box for each new employee every time 
they complete the form, the total annual increase in time burden for 
employers is 1,505,900 hours (0.02 hours x 75,295,000 forms). Using the 
average total rate of compensation of $39.75 \89\ per hour for all 
occupations, DHS estimates the total annual costs to employers for the 
additional box is $59,859,525 (1,505,900 hours x $39.75 per hour), or 
approximately $0.80 per new employee (Table 4).
---------------------------------------------------------------------------

    \89\ Includes both civilian and private occupations, available 
at https://www.bls.gov/news.release/archives/ecec_06172021.pdf (last 
visited May 24, 2023).

          Table 4--Summary of Revised I-9 Instructions/Box Cost
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Cost to read form I-9 instructions/box
------------------------------------------------------------------------
Time Required to Read
  Instructions/Mark the Box (Hour):.......................          0.02
Total Compensation (Per Hour):
  Civilian Workers........................................        $40.90
  Private Industry Workers................................        $38.61
  Average total compensation..............................        $39.75
  Annual Respondent Population............................    75,295,000
  Time Burden Cost Per Box................................         $0.80
  Total Burden Hours......................................     1,505,900
                                                           -------------
      Total Annual Burden.................................    59,859,525
------------------------------------------------------------------------

    E-Verify Account Creation, Training, and Use--In accounting for the 
costs of the Form I-9 alternative procedure, DHS considered that some 
employers will enroll in E-Verify in order to participate in the 
alternative procedure. Employers who enroll in E-Verify for this 
purpose, and who would not have otherwise enrolled in the program, 
would incur opportunity costs attributable to this policy. These costs 
include time to enroll in and utilize the E-Verify system.
    In order to utilize the alternative procedure, employers not 
currently enrolled in E-Verify will need to create an account with E-
Verify. DHS estimates the time required to create this new account 
averages 2.26 hours.\90\ Using the average total rate of compensation 
as $39.75 \91\ per hour for all occupations, DHS estimates that the 
opportunity cost of time will be $89.84 per employer who enrolls into 
E-Verify so that they may use the alternative procedure (Table 5). 
There has been an average of 70,565 new accounts per year since 2012. 
This baseline number is not expected to be reduced by the final rule or 
alternative procedure. It is uncertain how many additional new accounts 
will be created in response to the alternative procedure.
---------------------------------------------------------------------------

    \90\ Enrollment time includes review and signing of the 
Memorandum of Understanding, registration, new user training, and 
review of the user guide.
    \91\ Includes both civilian and private occupations, available 
at https://www.bls.gov/news.release/archives/ecec_06172021.pdf (last 
visited May 24, 2023).
---------------------------------------------------------------------------

    As part of the E-Verify enrollment process, all new E-Verify 
enrollees are required to take training. USCIS has incorporated fraud 
awareness and anti-discrimination training into this existing training 
as an additional layer of security. As a result, new E-Verify employers 
will complete training that provides an overview of what to look for 
when examining employment eligibility documentation and examples of 
document anomalies. DHS has determined that this training requirement 
will not represent an additional training burden to employers. Feedback 
from subject matter experts at USCIS concluded that the additional 
fraud training will be incorporated into current training materials 
which are continually streamlined in order to maintain the lowest 
possible burden to E-Verify enrollees. USCIS is updating the tutorial 
to remove material that has become obsolete due to system enhancements 
while adding material about fraudulent document awareness, resulting in 
no net change to the estimated time to complete the tutorial. Qualified 
employers will have access to additional free resources through their 
participation in E-Verify that they may choose to partake in.

                Table 5--Summary of Account Creation Cost
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Cost to create E-verify account
------------------------------------------------------------------------
Hours to Create New E-Verify Account......................          2.26
Total Compensation (Per Hour):
  Civilian Workers........................................        $40.90
Private Industry Workers..................................        $38.61
Average total compensation................................        $39.75
                                                           -------------
      Total Opportunity Cost per New Account..............        $89.84
------------------------------------------------------------------------

    Finally, employers (or an authorized representative acting on the 
employer's behalf) who enroll in E-Verify in order to use the 
alternative procedure will also face a time burden attributable to this 
policy to complete the verification of Form I-9 documents. DHS 
estimates that creating one new employee case in E-Verify takes, on 
average, seven minutes or 0.117 hours. Using the average total rate of 
compensation as $39.75 per hour for all occupations, DHS estimates that 
the opportunity cost of time is $4.64 per new employee case submitted 
through E-Verify (Table 6). There are no additional development or 
annual maintenance costs for operation of the E-Verify system because 
they are unchanged by this final rule and alternative procedure.

[[Page 48016]]



                  Table 6--Summary of E-Verify Use Cost
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Cost to submit new employee case
------------------------------------------------------------------------
Hours to Submit E-Verify Case.............................         0.117
Total Compensation (Per Hour):
  Civilian Workers........................................        $40.90
  Private Industry Workers................................         38.61
  Average total compensation..............................         39.75
                                                           -------------
      Opportunity Cost per E-Verify Case..................          4.64
------------------------------------------------------------------------

Summary of Estimated Quantified Costs of the Alternative Procedure
    Table 7 summarizes the possible quantified cost impacts of the 
alternative procedure. DHS estimates a total annual impact for 
qualified employers to familiarize themselves with the alternative 
procedure and for all employers to read the instructions. However, this 
table presents only unit costs, not total monetized costs, resulting 
from a potential increase in new E-Verify users because DHS does not 
have sufficient data to project any potential operational increases in 
demand for E-Verify enrollment and corresponding usage that may result 
from the availability of the alternative procedure. In addition, these 
costs are not additive because not every qualified employer using the 
alternative procedure would incur each of the below costs.

    Table 7--Estimated Quantified Costs of the Alternative Procedure
------------------------------------------------------------------------
                                                         Total annual
   Summary of quantified costs         Unit cost            impact
------------------------------------------------------------------------
Familiarization (One-Time Cost    $11.67 per          $3,408,455.*
 for All Active E-Verify Users).   qualified
                                   employer.
Review Revised Form I-9           $0.80 per new       $59,859,525.
 Instructions (Recurring Cost to   employee.
 Employers for All New
 Employees).
Increase in New E-Verify Users:
  Opportunity Cost per new        $89.84 per new      Undetermined.
   account (One-Time Cost).        employer.
  Opportunity Cost per new E-     $4.64 per new       Undetermined.
   Verify Case (Recurring Cost).   employee.
------------------------------------------------------------------------
* Impact in the first year only.

Unquantified Costs of the Alternative Procedure
    DHS identified several unquantified costs that could impact the 
affected populations as a result of the alternative procedure, such as 
recordkeeping burdens, the loss of opportunity, data security impacts, 
and costs for employees to submit their documents electronically. The 
potential impacts are discussed below.
    Recordkeeping Burden--DHS will require, as an additional layer of 
security, that a qualified employer who chooses to apply the 
alternative procedure retain a copy of all the documents presented to 
establish identity and employment authorization on the Form I-9. 
Documents must be retained for three years after the date of hire, or 
one year after the date employment ends, whichever is later.
    DHS recognizes that the retention of identity and employment 
eligibility documentation may add administrative and operational 
burdens to the employer, since the intake, storage, and handling of 
sensitive documents could require additional operational resources. 
However, the document retention requirements are only applicable to the 
optional alternative procedure; nothing in this final rule prevents 
qualified employers from continuing to physically examine Form I-9 
documents in accordance with the baseline procedure. Furthermore, 
because some commenters stated that digital document retention is 
already embedded in company practices and guidance--particularly among 
E-Verify users--a new requirement to retain more documentation is not 
expected to pose a significant burden to employers. For this reason, 
and because each business will face their own unique operational 
burdens in order to take, store, and handle documents, DHS does not 
quantify this impact.
    Data Security Impacts to Employers--As a result of using the 
alternative procedure, some employers may experience additional 
regulatory burdens associated with submitting sensitive personal 
information, such as indirect burdens that arise by virtue of such 
submission and local and state laws or regulations that affect consumer 
privacy rights and personal data. For example, as discussed earlier in 
this preamble, some commenters noted that the required retention of 
documents would create additional risks and costs under their state's 
data breach provision notification laws. These burdens include 
requiring that employers provide notice regarding the collection, 
deletion, correction, and other rights relating to employee personal 
data. Furthermore, commenters stated that the requirement to retain 
data (and particularly sensitive categories of data) could create 
additional burdens under data breach provisions of certain laws. The 
extent to which local and state provisions will affect employers is too 
variable and uncertain to quantify in this analysis, although DHS notes 
that states with the strongest privacy laws are likely to have a 
greater impact to employers.\92\
---------------------------------------------------------------------------

    \92\ For example, one study evaluated privacy laws recently 
passed in California, Colorado, Connecticut, Virginia, and Utah. See 
Millar, S. (2022, May 24). The State of U.S. State Privacy Laws: A 
Comparison. The National Law Review, available at https://www.natlawreview.com/article/state-us-state-privacy-laws-comparison 
(last visited May 24, 2023).
---------------------------------------------------------------------------

    In addition, employers may elect to utilize measures which help 
ensure that the collection and submission of sensitive documents is 
protected from any potential leak or data breach. This may involve the 
use of email encryption services or other data protection measures, of 
which the cost to use vary depending on the type and quantity of 
service needed by employers. Some lower end encryption services can be 
used for free, or are built into existing email services, but may 
provide a limited range of use or lack technical support. Paid services 
can range from $8 a month to upwards of $104 a month depending on the 
level and quantity of service required.\93\ Once again, the extent to 
which employers will utilize these services is too variable to quantify 
in this analysis, although DHS notes that businesses with more 
employees are more likely to utilize more expensive services.
---------------------------------------------------------------------------

    \93\ ``Best Encryption Software & Tools for 2021'', Guercio, 
Kyle, ESecurityPlanet, 25 Nov. 2020, available at 
www.esecurityplanet.com/products/best-encryption-software/ (last 
visited June 1, 2023).
---------------------------------------------------------------------------

    Employee Burden to Send Documents Electronically--As a result of 
participating in the alternative

[[Page 48017]]

procedure, employees will experience a burden of time in order to make 
a copy of identification documents and send via email or other 
electronic means. DHS recognizes that each employee will experience a 
unique set of circumstances in order to organize, scan, and send their 
documents (whether via machine scanning, smartphone camera, or similar 
means) and that these methods each present unique burdens of time. That 
said, DHS found that the industry average price range for scanning 
paper documents is $0.06-$0.11 per page, and estimates that employees 
will face similar costs to perform this task when making copies of 
identification documents.\94\ Employees may also face a potential 
burden in order to securely transmit their identification documents 
over the internet to employers conducting the alternative procedure. As 
mentioned above, this may involve the use of email encryption services 
or other data protection measures, of which the cost to use will vary 
depending on the type and quantity of service needed by employees. 
Given that employees face fewer needs to send such information, DHS 
will assume that most employees utilize free to low-cost services.
---------------------------------------------------------------------------

    \94\ ``The Cost of Document Scanning.'' ILM Corporation, 4 Oct. 
2021, available at www.ilmcorp.com/tools-and-resources/cost-of-document-scanning/ (last visited May 31, 2023).
---------------------------------------------------------------------------

Cost Savings of the Alternative Procedure
    A positive externality of the past several years of flexibilities 
offered for verifying Form I-9 employee identification documents due to 
the COVID-19 emergency, in addition to the public safety benefit, has 
been the cost savings experienced by employers and employees. Based on 
extensive feedback from public comments, the alternative procedure is 
expected to enable employers to avoid operational expenses that would 
otherwise be incurred in the baseline case. Accordingly, DHS assumes 
that the primary incentive for employers to use or adopt these new 
flexibilities stems from the desire for business cost-savings. 
Furthermore, DHS assumes that those businesses who stand to incur the 
most cost-savings from these new flexibilities are those employers who 
are hiring remote positions.
    The alternative procedure has the potential to instill costs 
savings to the public in several areas. Qualified employers who 
exercise this option may save on third-party verification costs, 
employers and employees will avoid the burden of scheduling time for 
the employer to obtain required documentation from the employee and the 
employee to present such documentation in person for review by the 
employer, and both employers and employees may experience travel cost 
savings.
    Third-Party Verification Savings--This final rule will allow 
qualified employers who exercise the alternative procedure to save on 
the time and cost to locate and hire an authorized representatives to 
inspect documents for new remote employees. To estimate the cost 
savings of this impact, DHS reviewed several comments from employers 
who stated the cost of a Form I-9 inspection conducted by an authorized 
representative ranged between $40 and $105 per Form I-9, with the 
average of $75.\95\ While it is unclear how often employers availed 
themselves of the use of authorized representatives before the COVID-19 
emergency flexibilities, commenters explained that shift toward greater 
remote work has increased the frequency of these arrangements. In fact, 
multiple commenters referenced situations where under the baseline case 
of in-person Form I-9 verification requirements, they would be 
compelled to form new contracts with authorized representatives to 
verify the documents of workers living in other states. The alternative 
procedure would allow these employers to conduct their own Form I-9 
identification document inspection via use of E-Verify and the 
alternative procedure and avoid the costs of using authorized 
representatives.
---------------------------------------------------------------------------

    \95\ Three commenters provided quoted estimates for hiring a 
third-party Notary/Inspector for remote verification. These ranged 
from $40-80, $75, to $105 per Form I-9. DHS averaged these figures 
to develop the estimate of $75 ((40 + 80 + 75 + 105)/4 = 75).
---------------------------------------------------------------------------

    The extent of cost savings in this area is unknown due to the 
challenge of estimating the representative share of employees in remote 
relationships with a qualified employer that would otherwise prompt 
Form I-9 document verification by an authorized representative. It is 
possible the impact is quite large, accounting for 16 percent of the 
total new hire population, as explained in the Affected Population 
section above. However, countervailing forces bear on this estimate to 
an unknown degree, making specific point estimation challenging. Using 
the total number of remote positions in the United States may be an 
over-estimate of the population that would require verification by an 
authorized representative because there are many cases of remote work 
arrangements between employers and employees located in close 
proximity. However, the population is perhaps under counted to some 
degree due to various employee preferences and situations. This would 
include employers whose employees responsible for conducting the Form 
I-9 identification document verification (e.g., Human Resource 
specialists) are remote workers themselves, a phenomenon cited by 
numerous commenters. If a company's HR representative is the only 
remote employee a company has, all of the Form I-9 submissions for all 
of its employees may nonetheless be submitted via E-Verify in 
accordance with the alternative procedure, even if they work at a 
company location.
    Lastly, as a consequence of allowing qualified employers who 
exercise the alternative procedure to save on the time and cost to 
locate and hire authorized representatives to inspect documents for new 
remote employees, DHS acknowledges there could be a reduction in demand 
for these services from notaries (or other authorized representatives). 
While it is unclear how often employers availed themselves of the use 
of authorized representatives before the COVID-19 emergency 
flexibilities, several commenters explained that the alternative 
procedure would allow these employers to conduct their own Form I-9 
identification document inspection via use of E-Verify and the 
alternative procedure and avoid the costs of using authorized 
representatives.
    Travel Cost Savings--The alternative procedure will also alleviate 
the burden of two parties meeting in person to review documents, which 
will provide time and travel cost savings to employees. Employees, 
particularly those in rural areas, will not have to travel (whether to 
a company worksite or an authorized representative's location) to 
complete the examination of Form I-9 documents in person. Physically 
disabled employees and others for whom remote work is a priority will 
also no longer be disadvantaged by the hassle and expense to travel to 
complete the Form I-9 examination process. Some employers may also 
realize travel time and cost savings. For example, employers who have 
one or a handful of HR specialists that cover onboarding new employees 
at multiple locations may be able to eliminate trips.
    In estimating these cost-savings, DHS recognizes that the cost 
savings realized by employers and employees will vary by individual 
circumstance. Some employees will continue to search for employment 
within their locality, and even prefer to have their documents

[[Page 48018]]

examined in person. However, DHS also recognizes that qualified 
employers who exercise the alternative procedure will likely be those 
who are offering remote positions, or those who prefer to conduct the 
verification process remotely rather than in person.
    To produce a lower bound estimate of these cost-savings, DHS 
estimated travel distance based on the average commute of the general 
population. DHS considers this a lower bound estimate since some 
evidence exists to suggest that this average would be higher for remote 
employees.\96\ Census data for 2019 determined that the average 
duration of a one-way commute in the United States was 27.6 minutes 
(across all modes of transportation).\97\ This figure was then 
multiplied by the average hourly rate of total compensation of $39.75 
for all occupations (both civilian and private) \98\ to produce round 
trip opportunity cost to employees of $36.57. For workers who drive, 
eliminating this travel would also save vehicle operation costs. Based 
on the General Services Administration (GSA) privately owned vehicle 
mileage reimbursement rate, DHS estimates an operation cost of 
approximately $0.625 per mile.\99\ If qualified employers were to use 
the alternative procedure for 16 percent of new employee cases created 
per year--the number of E-Verify employer positions estimated to be 
remote--DHS estimates a time savings of $281.1 million ($36.57 x 
7,686,786 employees), plus avoided vehicle operations costs for those 
who drive.
---------------------------------------------------------------------------

    \96\ For example, one platform-specific study found that the 
percentage of full-time remote workers who live more than 100 miles 
away from their home office has increased across all business sizes 
since 2020, with the largest increases occurring in businesses with 
10-24 employees. See Quantifying the rise of remote and hybrid 
work--gusto. (n.d.), available at https://gusto.com/company-news/the-state-of-hybrid-and-remote-work (last visited May 24, 2023).
    \97\ Travel time to work in the United States: 2019--Census.gov 
(n.d.), available at https://www.census.gov/content/dam/Census/library/publications/2021/acs/acs-47.pdf (last visited May 24, 
2023).
    \98\ Average Total Compensation (wages and benefits) for 
civilian workers and private industry workers, available at https://www.bls.gov/news.release/archives/ecec_06162022.pdf (last visited 
May 24, 2023).
    \99\ U.S. General Services Administration, Privately Owned 
Vehicle Mileage Reimbursement Rate, 2022, available at https://www.gsa.gov/travel/plan-book/transportation-airfare-pov-etc/privately-owned-vehicle-mileage-rates/pov-mileage-rates-archived 
(last visited June 1, 2023).
---------------------------------------------------------------------------

    To produce an upper bound estimate of these cost-savings, DHS 
assumed that some portion of the trips made by the approximately 7.7 
million new hires of qualified employers estimated to be in remote 
positions, involve a plane ride. It is unlikely that 100 percent of 
these remote workers are within practical driving distance of their 
workplace. It is possible that some employers may find it advantageous 
or necessary to fly remote employees to the worksite for onboarding 
activities, including Form I-9 document examination. If employers no 
longer need to complete the Form I-9 document examination in-person, 
they will have the flexibility to complete this and other onboarding 
activities remotely. For purposes of creating an upper bound scenario 
to estimate cost savings from avoided travel, DHS assumes that 95 
percent of the estimated 7.7 million qualified employer new hires in 
remote positions drive or use some other means of local transportation 
and the remaining 5 percent fly. It could be higher than 5 percent, but 
DHS does not have data that provide such an estimate. Bureau of 
Transportation Statistics data show that the average 2022 national 
average domestic airline itinerary fare was $393.85. It's possible that 
such a trip may include other expenses, such as lodging, meals, and 
incidentals as well. DHS estimates $155 for one night of lodging, 
meals, and incidentals based on the GSA FY 2022 standard lodging and 
per diem rate, though it could be more for cities with lodging and per 
diem rates higher than the standard.\100\ In addition, avoiding this 
trip would save employees the time of taking the flight, any time spent 
waiting at the airport for the flight, and traveling to and from the 
airport, but DHS does not have data to quantify time saved. DHS uses 
$549 ($393.82 + $155) as its estimate of per trip savings for this 5 
percent of the population. Using these assumptions, the upper bound 
weighted average per trip savings is $62 (95 percent x $36.57 + $549 x 
5 percent). If qualified employers were to use the alternative 
procedure for 16 percent of new employee cases created by E-Verify 
enrolled employers per year--the number of E-Verify employer positions 
estimated to be remote--DHS estimates an upper bound savings of $476.6 
million ($62 x 7,686,786 employees).
---------------------------------------------------------------------------

    \100\ U.S. General Services Administration, ``FY22 Per Diem 
Highlights,'' available at https://www.gsa.gov/cdnstatic/FY_2022_Per_Diem_Rates_Highlights.docx (last visited June 1, 2023).
---------------------------------------------------------------------------

    DHS also considered that some employers, rather than employees, 
travel to various worksites in order to complete Form I-9 document 
examination for new employees. DHS uses a scenario, based on a public 
comment received on the NPRM, to illustrate possible cost savings to 
employers from avoided travel made possible by use of the alternative 
procedure. The public commenter indicated that one human resource 
professional is responsible for performing Form I-9 document 
examinations at three separate hospitals, two of which are distant. For 
this scenario, DHS assumes that the two distant hospitals require 42 
miles of travel round-trip taking a total of 78 minutes, and that the 
third closer hospital requires 21 miles of travel round-trip taking a 
total of 34 minutes.\101\ DHS also assumes that the human resources 
professional makes 10 trips to each hospital per year that could be 
avoided through use of the alternative procedure.\102\
---------------------------------------------------------------------------

    \101\ Rural Americans live an average of 10.5 miles from the 
nearest hospital with an estimated travel time of about 17 minutes. 
Assuming the closer hospital is 10.5 miles and 17 minutes from the 
HR specialist and that the two distant hospitals are an additional 
10.5 miles and 17 minutes from the closer hospital.
    See Pew Research Center, How far Americans live from the closest 
hospital differs by community type, December 12, 2018, available at 
https://www.pewresearch.org/short-reads/2018/12/12/how-far-americans-live-from-the-closest-hospital-differs-by-community-type/ 
(last visited June 1, 2023).
    \102\ Average of 267 staff per small hospital = 926,809 total 
personnel at small hospitals/3,474 small hospitals. 10 staff 
turnovers per year = 267 staff x 3.8% hire rate. See American 
Hospital Association (AHA) Hospital Statistics, 2021 U.S. Hospitals, 
Utilization and Personnel, Bed Count--small, available at https://guide.prod.iam.aha.org/stats/us-hospitals (last visited June 1, 
2023). See also Bureau of Labor Statistics, Table A: Job openings, 
hires, and total separations by Industry, seasonally adjusted, Rates 
by Industry (percent), Health care and social assistance, April 2022 
Hires, available at https://www.bls.gov/news.release/archives/jolts_05312023.htm (last visited June 1, 2023).
---------------------------------------------------------------------------

    DHS estimates the savings from avoided vehicle operations and work 
time spent driving between the hospital sites. Using the GSA privately 
owned vehicle reimbursement rate of $0.625 per mile and a fully-loaded 
wage rate for a human resources specialist of $50.94,\103\ DHS 
estimates use of the alternative procedure could save $84 per trip to 
the distant hospitals ($26 in vehicle operations costs and $58 in time) 
and $42 per trip to the closer hospital ($13 in vehicle operations 
costs and $29 in time), for an average savings

[[Page 48019]]

per trip of $70 (($84 + $84 + $42)/3).\104\ Assuming 10 avoided trips 
per hospital per year, DHS estimates a total annual savings for this 
one business of $2,100 in this scenario (10 x ($84 + $84 + $42)).
---------------------------------------------------------------------------

    \103\ $50.94 = $35.13 mean hourly wage x ($42.48/$29.32) ratio 
of total compensation to wages and salaries. See Bureau of Labor 
Statistics, Occupational Employment and Wages, May 2022, 13-1071 
Human Resources Specialists, Mean Hourly Wage, available at https://www.bls.gov/oes/current/oes131071.htm (last visited June 1, 2023). 
See also Bureau of Labor Statistics, Employer Costs for Employee 
Compensation News Release, March 17, 2023, Table 1: Employer Costs 
for Employee Compensation by ownership, Civilian workers, available 
at https://www.bls.gov/news.release/archives/ecec_03172023.htm (last 
visited June 1, 2023).
    \104\ Distant hospitals: 42 miles x $0.625 per mile = $26.25 in 
vehicle operations costs and 1.13 hours x $50.94 per hour = $57.73 
in opportunity costs; Closer hospital: 21 miles x $0.625 per mile = 
$13.13 in vehicle operations costs and 0.57 hours x $50.94 per hour 
= $28.87 in opportunity costs.

                 Table 8--Summary of Travel Cost Savings
------------------------------------------------------------------------
                      Range of travel cost-savings
-------------------------------------------------------------------------
             Scenario               Per round trip      Annual total
------------------------------------------------------------------------
Lower Bound savings...............          $36.57  $281.1 million.
Upper Bound savings...............           62.00  $476.6 million.
Example Savings for One Business..           70.00  $2,100 *.
------------------------------------------------------------------------
* Per Business in this example scenario.

Total Estimated Quantified Savings of the Alternative Procedure
    Table 9 summarizes the potential quantified unit cost savings of 
the alternative procedure. Specifically, they include the cost savings 
realized by employers who exercise the alternative procedure to prevent 
incurring costs for hiring authorized representatives to examine 
documents for new remote employees, and a lower bound estimate of the 
cost savings to employees who through participation in the alternative 
procedure will not have to travel to a company worksite or an 
authorized representative's location in order to complete the 
examination of Form I-9 documents in person.

 Table 9--Estimated Quantified Cost Savings of the Alternative Procedure
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Quantified Cost Savings Summary
------------------------------------------------------------------------
Cost Savings on Third-Party Verification:
  Avg Third-party Notary/Inspector Per Form I-9...........        $75.00
Cost-Savings for Travel:
  Per Round-Trip Travel Cost-Savings (lower bound)........         36.57
  Per Round-Trip Travel Cost Savings (upper bound)........         62.00
------------------------------------------------------------------------

5. Total Benefits, Costs, and Cost Savings of the Alternative Procedure
    Table 10 summarizes the potential quantified and unquantified 
benefits, costs, and cost savings of the alternative procedure. The 
primary quantified costs are attributed to one-time rule 
familiarization with the requirements of the alternative procedure for 
all E-Verify users, and review of the new Form I-9 instruction for all 
employers with new hires. Employers who enroll in E-Verify and wouldn't 
have done so without the alternative procedure will incur costs for E-
Verify account creation and processing each new employee in E-Verify.
    In addition, employers and employees may incur additional costs 
that DHS was unable to quantify. These costs may include employees 
making a copy of all the documents presented to establish identity and 
employment authorization on the Form I-9 and sending them to the 
employer, employers retaining copies of those documents, and additional 
burdens stemming from ensuring privacy when collecting or storing 
sensitive personal information.
    The main quantified cost savings for employers are due to avoiding 
the costs for hiring authorized representatives to examine documents 
for new remote employees. The main cost savings incurred by employees 
and/or employers are due to not having to travel to a company worksite 
or an authorized representative's location in order to complete the 
inspection of Form I-9 documents in person.
    Use of the alternative procedure is expected to produce benefits 
for the public. Employers using the alternative procedure may realize 
administrative efficiencies relating to document examination through 
reduced travel on the part of HR specialists and employees and the 
ability to consolidate and specialize this HR function. This in turn 
may result in fewer mistakes in completing the Form I-9. Employees may 
also benefit from this final rule in the form of expanded work 
opportunities, travel cost-savings, and supplemental benefits relating 
to avoided travel. Finally, employers who choose to enroll in E-Verify 
in order to exercise this option will help to ensure that documents 
presented by the employee are valid and unexpired by comparing to 
various government databases.
    Table 10 summarizes the potential quantified and unquantified 
benefits, costs, and cost savings of the alternative procedure. Not all 
employers and employees will incur all of these potential impacts. 
Because the alternative procedure is optional for qualifying employers, 
DHS anticipate that any employer will likely only make use of the 
alternative procedure when it is in their best interest to do so--that 
is, when the benefits and cost savings exceed the costs.

                         Table 10--Summary of Potential Benefits, Costs and Cost Savings
----------------------------------------------------------------------------------------------------------------
                                           Summary of potential costs
-----------------------------------------------------------------------------------------------------------------
                  Unit costs                       One-time        Recurring              Total annual
----------------------------------------------------------------------------------------------------------------
Familiarization, Average cost per employer....          $11.67  ..............  $3.4 million.*
New E-Verify Enrollees:
    Account Creation..........................           89.84  ..............  Undetermined.
    Process Each New Employee.................  ..............           $4.64  Undetermined.
Review Revised I-9 Instructions...............  ..............            0.80  $59.9 million.
----------------------------------------------------------------------------------------------------------------
  Unquantified Costs: Employer document retention; compliance with privacy laws; employee time and cost to make
                                              copies of documents.
----------------------------------------------------------------------------------------------------------------


[[Page 48020]]


 
                                        Summary of potential cost savings
-----------------------------------------------------------------------------------------------------------------
               Unit cost savings                   One-time        Recurring              Total annual
----------------------------------------------------------------------------------------------------------------
Employers: Avoided Third-Party Inspection of    ..............          $75.00  Undetermined.
 Form I-9 Documents.
Employees: Avoided Round-Trip Travel for In-
 Person Inspection of Form I-9 Documents:
  Lower Bound.................................  ..............           36.57  $281.1 million.
  Upper Bound.................................  ..............           62.00  $476.6 million.
----------------------------------------------------------------------------------------------------------------
                                          Summary of potential benefits
----------------------------------------------------------------------------------------------------------------
   Unquantified Benefits: Employer administrative efficiencies, fewer mistakes in completing the Form I-9, and
     helping ensure that documents presented by the employee are valid and unexpired by comparing to various
   government databases. Employee expanded work opportunities, travel cost-savings, and supplemental benefits
                                           relating to avoided travel.
----------------------------------------------------------------------------------------------------------------
* Impact in the first year only.

C. Regulatory Flexibility Act

    DHS reviewed this final rule in accordance with the Regulatory 
Flexibility Act of 1980 (5 U.S.C. 601-612), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-
121, tit. II, 110 Stat. 847. This rule does not impose any requirements 
on employers. It allows the Secretary to authorize an optional 
alternative for document examination. The alternative procedure to the 
in-person physical examination of documentation for the Form I-9 is a 
voluntary option that employers are not required to use; employers 
still have the option to physically examine Form I-9 documents in 
person. Because participation in the alternative procedure is 
voluntary, DHS expects that employers who choose to use the alternative 
procedure will only do so if the benefits of using the procedure 
outweigh the costs. Accordingly, DHS certifies that this final rule 
will not have a significant economic impact on a substantial number of 
small entities.

D. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (``UMRA'') is intended, 
among other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and Tribal governments. Title II of UMRA 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed or final agency rule 
that may directly result in an expenditure of $100 million or more 
(adjusted annually for inflation) in any one year by State, local, and 
Tribal governments, in the aggregate, or by the private sector (2 
U.S.C. 1532(a)). The current threshold after adjustment for inflation 
is $177 million, using the most current (2022) Implicit Price Deflator 
for the Gross Domestic Product. This final rule will not result in such 
an expenditure and will not significantly or uniquely affect small 
governments. Therefore, no actions were deemed necessary under UMRA.

E. Paperwork Reduction Act of 1995--Collection of Information

    Under the PRA, 44 U.S.C. 3501 through 3512, DHS must submit to OMB, 
for review and approval, any reporting requirements inherent in a rule 
(unless they are exempt). In this final rule, DHS invites written 
comments and recommendations for the proposed information collection 
outlined below within 30 days of publication of this notice to https://www.reginfo.gov/public/do/PRAMain. Find this particular information 
collection by selecting ``Currently under Review--Open for Public 
Comments'' or by using the search function.
    DHS invited the general public and other federal agencies to 
comment on the impact to the collection of information Form I-9, 
Employment Eligibility Verification (OMB Control No. 1615-0047). In 
accordance with the PRA, the information collection notice was 
published in the Federal Register to obtain comments regarding the 
proposed edits to the information collection instrument. Comments were 
accepted for 60 days from the publication date of the proposed rule. 
See Section II.H.3 of this preamble for summaries of and responses to 
the comments received regarding the information collection.
    In addition, this final rule will require non-substantive edits to 
the information collection OMB-18, E-Verify Program (OMB Control No. 
1615-0092). These edits include updates to the fraudulent document 
awareness content and adding the newest Form I-9 images to the E-Verify 
tutorials. Accordingly, USCIS has submitted a Paperwork Reduction Act 
Change Worksheet, Form OMB 83-C, and amended information collection 
instruments to OMB for review and approval in accordance with the PRA.
1. USCIS Form I-9 (OMB Control Number 1615-0047)
Overview of Information Collection
    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: Employment Eligibility 
Verification.
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: Form I-9; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Individuals or households; Business 
and other employers. The Form I-9 was developed to facilitate 
compliance with Section 274A of the Immigration and Nationality Act, as 
amended by the Immigration Reform and Control Act of 1986, which made 
it unlawful for employers to knowingly hire individuals who were not 
eligible to work in the United States and established a process for 
verifying the identity and U.S. employment authorization of all 
employees hired after November 6, 1986. DHS is revising this form and 
its accompanying instructions to correspond with revisions related to 
any alternative procedure(s) that may be authorized by the Secretary 
for examining the documentation presented by individuals to establish 
identity and employment authorization for the Form I-9.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The estimated 
total number of respondents for the information collection associated 
with the Form I-9 for Employers is 75,295,000, and the estimated hour 
burden per response is 0.35 hours. The estimated total number of 
respondents for the information collection Form I-9 for Employees is 
75,295,000, and the estimated hour burden per response is 0.15 hours. 
The estimated total number of respondents

[[Page 48021]]

for the information collection Record Keeping is 27,200,000, and the 
estimated hour burden per response is 0.08 hours.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection is 39,823,500 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this collection of information is $0.

F. Executive Order 13132: Federalism

    This final rule will not have substantial direct effects on the 
States, on the relationship between the federal government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

G. Executive Order 12988: Civil Justice Reform

    This final rule meets applicable standards set forth in sections 
3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to 
minimize litigation, eliminate ambiguity, and reduce burden.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    DHS reviewed this final rule and has determined that it is not a 
``significant energy action'' and is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy.

I. National Environmental Policy Act

    DHS Management Directive (MD) 023-01 Rev. 01 and Instruction Manual 
023-01-001-01 Rev. 01 establish the policy and procedures that DHS and 
its Components use to comply with the National Environmental Policy Act 
of 1969 (NEPA), 42 U.S.C. 4321-4375, and the Council on Environmental 
Quality regulations for implementing NEPA, 40 CFR parts 1500 through 
1508.
    The CEQ regulations enable federal agencies to establish categories 
of actions that do not individually or cumulatively have a significant 
effect on the human environment and, therefore, do not require an 
Environmental Assessment or Environmental Impact Statement. 40 CFR 
1508.4. The DHS Categorical Exclusions are listed in IM 023-01-001-01 
Rev. 01, Appendix A, Table 1.
    For an action to be categorically excluded, the action must satisfy 
each of the following three conditions:
    1. The entire action clearly fits within one or more of the 
Categorical Exclusions;
    2. The action is not a piece of a larger action; and
    3. No extraordinary circumstances exist that create the potential 
for a significant environmental effect. IM 023-01-001-01 Rev. 01 
section V(B)(2)(a)-(c).
    If the action does not clearly meet all three conditions, DHS or 
the Component prepares an Environmental Assessment or Environmental 
Impact Statement, according to CEQ requirements, MD 023-01, and IM 023-
01-001-01 Rev. 01.
    DHS is amending its regulations to create a framework under which 
the Secretary could, as an optional alternative to the in-person 
physical document examination method most employers have followed as 
part of the Form I-9 process set forth in current regulations, 
authorize alternative documentation examination procedures with respect 
to some or all employers 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 
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. DHS has analyzed this action under MD 
023-01 Rev. 01 and IM 023-01-001-01 Rev. 01. DHS has made a 
determination that this rulemaking action is one of a category of 
actions which do not individually or cumulatively have a significant 
effect on the human environment. This final rule clearly fits within 
the Categorical Exclusions found in IM 023-01-001-01 Rev. 01, Appendix 
A, Table 1, numbers A3(a) and (d): ``Promulgation of rules, issuance of 
rulings or interpretations, and the development and publication of 
policies, orders, directives, notices, procedures, manuals, advisory 
circulars, and other guidance documents of the following nature: (a) 
Those of a strictly administrative or procedural nature [and] (d) Those 
that interpret or amend an existing regulation without changing its 
environmental effect.'' This final rule is not part of a larger action 
and presents no extraordinary circumstances creating the potential for 
significant environmental effects, so a more detailed NEPA review is 
unnecessary. DHS seeks any comments or information that may lead to the 
discovery of any significant environmental effects from this final 
rule.

J. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    DHS reviewed this final rule and has determined that under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, it will not have a substantial direct effect on one or 
more Indian tribes, on the relationship between the federal government 
and Indian tribes, or on the distribution of power and responsibilities 
between the federal government and Indian tribes.

K. Executive Order 12630: Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    DHS reviewed this final rule and determined that it will not cause 
a taking of private property or otherwise have taking implications 
under Executive Order 12630, Governmental Actions and Interference with 
Constitutionally Protected Property Rights.

L. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    DHS reviewed this final rule and determined that it does not create 
an environmental risk to health or risk to safety that might 
disproportionately affect children.

M. National Technology Transfer and Advancement Act

    DHS reviewed this final rule and determined that it does not use 
technical standards.

N. Family Assessment

    DHS reviewed this final rule and determined that this action will 
not affect family well-being within the meaning of section 654 of the 
Treasury and General Government Appropriations Act, enacted as part of 
the Omnibus Consolidated and Emergency Supplemental Appropriations Act 
of 1999 (Pub. L. 105-277, 112 Stat. 2681).
Regulatory Amendments
    Accordingly, DHS amends part 274a of chapter I, subchapter B, of 
title 8 of the Code of Federal Regulations as follows:

[[Page 48022]]

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
1. The authority citation for part 274a continues to read as follows:

    Authority:  8 U.S.C. 1101, 1103, 1105a, 1324a; 48 U.S.C. 1806; 
Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 114-74, 129 
Stat. 599; Title VII of Pub. L. 110-229, 122 Stat. 754; Pub. L. 115-
218, 132 Stat. 1547; 8 CFR part 2.


0
2. Section 274a.2 is amended by:
0
a. Revising paragraph (b)(1)(ii)(A) and the second sentence in 
paragraph (b)(1)(vii).
0
b. Adding paragraph (b)(1)(ix).
0
c. Revising paragraph (c)(1)(ii).
    The addition and revisions read as follows:


Sec.  274a.2  Verification of identity and employment authorization.

* * * * *
    (b) * * *
    (1) * * *
    (ii) * * *
    (A) Physically examine (or otherwise examine pursuant to an 
alternative procedure authorized by the Secretary under paragraph 
(b)(1)(ix) of this section) the documentation presented by the 
individual establishing identity and employment authorization as set 
forth in paragraph (b)(1)(v) of this section and ensure that the 
documents presented appear to be genuine and to relate to the 
individual; and
* * * * *
    (vii) * * * Reverification on the Form I-9 must occur not later 
than the date work authorization expires and must comply with the 
applicable document presentation and examination procedures in 
paragraphs (b)(1)(ii)(A) and (b)(1)(ix) of this section, and form 
instructions. * * *
* * * * *
    (ix) As an optional alternative to the physical examination 
procedure described in paragraph (b)(1)(ii)(A) of this section, the 
Secretary may, consistent with applicable law and via notice published 
in the Federal Register, authorize alternative documentation 
examination procedures with respect to some or all employers. The 
Secretary may adopt such procedures:
    (A) As part of a pilot program;
    (B) Upon the Secretary's determination that such procedures offer 
an equivalent level of security 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; or
    (C) 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.
* * * * *
    (c) * * *
    (1) * * *
    (ii) If upon inspection of the Form I-9, the employer determines 
that the individual's employment authorization has expired, the 
employer must reverify such employment authorization on the Form I-9 in 
accordance with paragraph (b)(1)(vii) of this section, including 
complying with the applicable document presentation and examination 
procedures in paragraphs (b)(1)(ii)(A) and (b)(1)(ix) of this section, 
and form instructions; otherwise the individual may no longer be 
employed.
* * * * *

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2023-15532 Filed 7-21-23; 8:45 am]
BILLING CODE 9111-28-P