U.S. Citizenship and Immigration Services (USCIS) published a request for public input at 86 FR 59183 (October 26, 2021), seeking comments on experiences with COVID-19-related flexibilities that have temporarily allowed employers to remotely examine an employee's identity and employment eligibility documents for I-9 purposes during the COVID-19 pandemic. See NAFSA's page COVID-19 Flexibilities Regarding Form I-9 for background on those flexibilities. USCIS is also interested in employer input on possible future remote document examination procedures.

Comments are due on or before December 27, 2021, following the instructions in the Federal Register notice. The notice contains the following non-exhaustive list of questions to assist commenters in developing their feedback:

"C. List of Questions for Commenters

The following non-exhaustive list of questions is meant to assist commenters in formulating comments, and is not intended to restrict the feedback that commenters may provide:

Experiences With Pandemic-Related Document Examination Flexibilities

1. Did you or your organization use the flexibilities for remote document examination for the Form I-9 since March 20, 2020? If not, why? If so, what was your experience using the flexibilities? How did small employers use these flexibilities?

2. If the employer performed any remote document examinations since March 20, 2020:

a. What were your experiences with internal technical capabilities to perform remote document examination (for example, video quality, image quality, document retention, etc.)?

b. What were your experiences related to employee-provided digital images or copies of documents for retention?

c. What were your experiences related to employees' remote completion and submission of Section 1 of the Form I-9?

d. What processes and/or technology solutions were typically used to remotely examine documents (for example, over video link, fax, or email, etc.)? Was the process always the same, or did it vary based on circumstances? What, if any, internal policies were put into place related to remote document examination practices?

e. Were any remotely examined documents rejected because they did not relate to the individual presenting them or did not appear to be genuine? Were there any instances in which a document was accepted during remote examination, but upon subsequent physical inspection, the employer determined that the document did not appear to be genuine or did not relate to the individual presenting it? If so, what actions did the employer take?

3. If the employer performed any remote document examinations since March 20, 2020, and is enrolled in E-Verify:

a. Were any documents examined remotely for which E-Verify returned an Employment Authorized result, but upon subsequent physical examination, the employer determined that the documents did not appear to be genuine or relate to the individual presenting them? If so, what actions did the employer take?

b. What, if any, challenges did employers experience in interpreting and following the requirements of participation in the E-Verify program during the period of remote document examination?

4. What other changes did employers make to Form I-9 document inspection procedures during the pandemic? Did employers increase use of authorized representatives?

Considerations for Future Remote Document Examination Procedures

1. What are the direct and indirect burdens on employees and employers related to the physical document examination requirement for Form I-9?

2. What are the direct and indirect burdens on employees and employers related to the use of authorized representatives to meet the physical document examination requirement?

3. What would be the direct and indirect benefits of offering a permanent option for remote document examination of Form I-9 identity and work eligibility documents (for example, allowing some employers to centralize Form I-9 processing)?

4. What would be the direct and indirect costs of offering a permanent option for remote document examination of Form I-9 identity and work eligibility documents (for example, training or technology acquisition costs)?

5. What would be the direct and indirect burdens on small employers for the items listed above? What are the unique challenges faced by small employers with this process and these flexibilities? What kinds of alternatives should be provided for small employers in adopting these flexibilities?

6. If employers were allowed a permanent option for remote document examination, what types of employers and/or employees do you anticipate would be interested in participating or not interested in participating?

7. How might participation requirements as a condition of these flexibilities, such as required enrollment in E-Verify, document or image quality or retention requirements, or required completion of training offered by DHS, impact an employer's desire or ability to utilize such a flexibility?

8. What would be the costs or benefits associated with making enrollment in E-Verify a condition of flexibilities for you, as an employer?

9. If DHS were to permanently allow an option for remote document examination, what technical considerations would participating employers have to consider?

10. What impact would a permanent option for remote document examination have on employees and employers, if any? If these flexibilities are adopted, are there requirements DHS should adopt to ensure employee rights related to document examination are protected?

11. Are there solutions that would enable employers to verify that documents that are examined remotely appear to be genuine and to relate to the individual presenting them? What actions by DHS would encourage the commercial development of such solutions?

12. Should DHS consider changes to the current lists of acceptable documents on the Form I-9, in the context of remote document examination? What would be the costs and benefits of such changes?

13. Are there any other factors DHS should consider related to remote document examination?"