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APA Comments on Remote Work and Form I-9 Document Examination

BY: Mike Linehan | 01/19/22

The APA explained why virtual document examination should be allowed and offered recommendations on the use of virtual communication technologies in comments submitted in December on U.S. Citizenship and Immigration Services’ (USCIS) Request for Public Input on Remote Document Examination for Form I-9, Employment Eligibility Verification (86 F.R. 59183, 10-26-21).

At issue, now, for the USCIS and its sister U.S. Department of Homeland Security division, Immigration and Customs Enforcement (ICE), is whether an employer can examine employees’ presented documents virtually to determine if they are genuine and reasonably associated with the individual (employee).

During COVID-19, USCIS and ICE have allowed remote document examination with the caveat that when the emergency relief is lifted, employers and their agents will have three days to go back and physically view the documents in the presence of employees. This temporary relief has been extended until April 30, 2022.

In-Person Document Examination

There are historical assumptions in the requirement for physical examination of documents that APA believes are not accurate or are no longer true and should be reviewed, including the physical touching of documents, seeing documents within an arm’s reach, the appearance of an individual in the presence of the document examiner, and that virtual environments distort documents to prevent reasonable examination. Problems with presented documents can be easily identified through virtual communication technologies, APA said.

Appropriate Limitations

The APA provided USCIS with additional information on the virtual technologies that should not be allowed for purposes of Form I-9 document examination, as some technologies have limitations that could prevent an employer from determining whether a document is genuine. For example, a document faxed to an employer does not allow for the employer to view an original document.

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Mike Linehan is the Assistant Manager of Government Relations for the APA.