Thursday, August 18, 2022: USDHS ICE Issued A Proposal to Later (Perhaps?) Create Proposed Permanent Remote Form I-9 Documentation Procedures
The U.S. Department of Homeland Security’s Immigration and Customs Enforcement (DHS ICE) published a “Notice of proposed rulemaking (NPRM)” seeking to allow the Secretary of DHS discretion, if he chooses to exercise it, to later impose so-called “alternative procedures” for the remote submission of identification documents applicants must submit to prospective employers to allow the employer to complete the Form I-9, Employment Eligibility Verification.
This is a very unusual proposal in that it does not propose specific new Rules. It is thus in fact an “Advanced Notice of Proposed Rulemaking” masquerading as a NPRM. ANPRs are two regulatory steps away from being allowed to go to Final Rulemaking (the next step after an ANPR would be the NPRM, and the second step thereafter would be publication of a Final Rule). A NPRM, which this proposal purports to be, is only one-regulatory step away from being allowed to become legally effective (the next step being the publication, of course, of a Final Rule).
This proposed Rule merely discusses some of the current thinking at DHS and alternatives and options it is still considering. The proposed Rule does NOT propose alternative actions which state the circumstances which would cause which alternative to apply (an approach the agency may take). Rather, this Proposed Rule poses possible alternative procedures, like speaking musings out loud, and then proposes to leave the precise procedures and details to the discretion of the DHS Secretary to flesh out and publish, informally via some form of written “Guidance” or “Notice,” at some unstated later time. Here is how the NPRM begins:
“DHS is proposing to allow for alternative procedures for documents required by the Form I-9, Employment Eligibility Verification. This proposed rule would create a framework [yellow highlighting added] under which the Secretary of Homeland Security (the Secretary) could [yellow highlighting added] authorize alternative options for document examination procedures with respect to some or all employers. Such procedures could [yellow high-lighting added] be implemented as part of a pilot program, or upon the Secretary’s determination [yellow highlighting added] 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.” [Federal Register p. 50786]
It is not at all legally clear that this “proposal to have a proposal” meets the public “Notice and Comment” requirements of the Administrative Procedure Act (“APA”). The APA, rather, requires federal agencies to publish for public Notice and Comment fulsome, complete, and specific proposals the agency would like to initiate with the benefit of public comment on those specific and concrete proposals for agency action. There is not an option under the APA for a Notice of Proposed Rulemaking (NPRM) to simply allow for a grant of unfettered discretion to the federal agency; otherwise, the public does not know what the specific proposal is, how the discretion would be deployed and how to comment.
It may well be that this badly framed and poorly drafted proposal anticipates a future NPRM to follow upon this NPRM (curing DHS’s APA problem which would ensue if it tried to turn this NPRM directly into a Final Rule). However, the proposal is entirely unclear on that point. After discussing several alternative procedures (plural) the Secretary may or may not adopt, the proposal then only fleetingly and narrowly states that:
“DHS plans to introduce any such alternative procedure in a future Federal Register notice.” [Federal Register p. 50790].
So, this sentence is twice unclear: first as to whether the pledge to publish any “such alternative procedure” (singular) refers to the last of the several alternative procedures the prior paragraph had just discussed, or whether the author of the sentence meant to refer to all of the several procedures (plural) the proposal had just discussed as being subject to a forthcoming Federal Register “notice.” Moreover, the pledge to publish “any such alternative procedure” leaves it unclear whether the future promised Federal Register “notice” will be in the form of a Notice of Proposed Rulemaking once the Secretary has settled his thoughts on which alternatives he wishes to adopt, and how and when, or whether the coming promised “notice” will simply state how the Secretary has finally “landed the plane” on his decision making after reading your comments. The use of the term “notice,” however, is ominous in this context, though, since that is a formal APA communication document which does NOT invite comment. Rather, a “Notice” merely communicates information, informally, with the public.
The DHS ICE NPRM goes on to cast its proposal as a search for alternative possible procedures in the way of an open “BlueSky” brainstorming session:
“To allow DHS to evaluate and implement options [yellow highlighting added] that provide employers with more flexibilities, and in recognition of many employees’ changing work environments and advances in technology, DHS proposes to revise the language currently in 8 CFR 274a.2(b) and (c). This proposed revision includes additional language in paragraphs (b)(1)(ii)(A), (b)(1)(vii), and (c)(1)(ii) stating that an alternative procedure may be authorized [yellow highlighting added] by the Secretary for examining the documentation presented by individuals to establish identity [19] and/or employment authorization when completing Form I-9 when they are hired, reverified, or rehired. Moreover, a new paragraph (b)(1)(ix) would be added to state that, in lieu of the physical examination procedure described in paragraphs (b)(1)(ii)(A), (b)(1)(vii), and (c)(1)(ii), the Secretary may authorize [yellow high-lighting added] optional alternative documentation examination procedures with respect to some or all employers, and that such procedures may be adopted [yellow highlighting added] as part of a pilot program, upon the Secretary’s determination [yellow highlighting added] 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.” [Federal Register pp.50789-50790]
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And finally: DHS’ confession that it is not proposing anything in this proposal, but rather is just thinking out loud:
“The proposed rule would not itself implement an alternative procedure to physical examination.” [Federal Register p.50790]
Other related, proposed changes include retention requirements, fraud detection, anti-bias training, and possible limitations
On top of the above-described provisions, DHS is considering making the following changes to this information collection:
- “Changes to various document retention requirements. These changes may include [yellow highlighting added] DHS imposing some or all of the document retention requirements applicable to the remote examination process during the flexibilities period discussed above, which required employers to retain copies of the documentation employees chose to present. The Department is also considering [yellow highlighting added] requiring employers to retain copies of any documents presented remotely via video, fax, or email.
- Adding a fraudulent document detection and/or an anti-discrimination training requirement for employers. For example, the employer or authorized representative who uses the alternative procedure may be required to take a 30-60-minute online training on detecting fraudulent documents remotely and avoiding discrimination in the process.
- A variety of options [yellow highlighting added] concerning the population that will be eligible to use the alternative procedure(s). The DHS is requesting comments on such options and on how they may affect the collection of information. One potential option for consideration might be to limit the eligible population to those employers who have enrolled and are participants in good standing, in E-Verify. Another potential option [yellow highlighting added] might be [yellow highlighting added] to place some limits on employers who have been the subject of a fine, settlement, or conviction related to employment eligibility verification practices.”
Astoundingly, the only reference to required “anti-discrimination training” appears not in the proposal section, but in the “cost impacts section of the DHS ICE proposal” where only a fleeting bald reference appears with no details about what such training may require, its scope, duration or content:
“If employers choose to delegate this work to contractors [meaning remote documentation of the identification of documents needed to complete the Form I-9], they will also face additional contracting costs. Furthermore, if [yellow highlighting added] DHS authorizes alternative procedures on the condition that participating employers engage in particular activities, such as [yellow highlighting added] enrolling in E-Verify, collecting and retaining images of Form I-9 documents presented by employees, or completing related fraudulent document detection and/or anti-discrimination training [bold emphasis added], these conditions may entail costs and benefits as well.” [Federal Register p.50791]
“BlueSky” Decision Making Tools Are Available to the Federal Agencies
The APA is not a vehicle to ask the public to comment upon still unfolding policy musings or thus far half-baked policy and enforcement ideas. The APA does provide federal agencies an opportunity, however, through a vehicle different from an NPRM, to seek ideas to help regulators crystalize inchoate ideas and announce to the public: “Hey, we are thinking about some things up here, and would like your thoughts and input to help us finalize our thinking and fashion a NPRM. We are BlueSkying this thing, so we are sending up this flare to ask you to just please help us by sharing your experiences and observations with us before we sit down to draft something for your review.”
That BlueSky decision making tool is an “Advance Notice of Proposed Rulemaking (“ANPR”) which is a tool to allow a federal agency to obtain information from the public before it is ready to issue a Notice of Proposed Rulemaking. ANPRs are particularly useful regulatory tools, in my experience, when either technical issues present themselves before the federal agency or the issues are contentious and emotionally charged (suggesting the wisdom of some public venting to answer the felt need of many Americans to “be heard” and to demonstrate to all interest groups that there are more points of view than just theirs).
Another alternative tool available to federal agencies to help them get a grip on what policy and procedure paths they want to go down is one the Obama Administration innovated and implemented widely to informally connect with the public and to help federal agencies gather and crystalize their thoughts. The Obama Administration called them “Town Halls” or “Listening Sessions.” Many federal agencies used them to meet with members of the public, often in their local communities, before the agency had completed the exercise of its discretion and before it had fashioned a mature Notice of Proposed Rulemaking ready for public consumption.
This unusual DHS ICE proposal, however, is entirely consistent with the Biden White House’s continuing discomfort that it has to comply with the Administrative Procedure Act. This continues to be surprising given the numerous legal setbacks federal Executive Agencies have suffered in the last year when the federal courts have found numerous agencies either to be entirely flouting the APA or shorting the full public Notice and Comment requirements the APA mandates.
The proposed DHS Rule states, as noted above in the quote of the opening paragraph of the NPRM, that it would create a “framework” [in other words a range of options: not a specific proposal for your review and comment] under which the Secretary of Homeland Security “could” [but maybe not] authorize alternative options for document examination procedures with respect to some or all employers, the Federal Register Notice explained. In light of the advances in technology and new work arrangements that occurred as a result of the COVID-19 pandemic, DHS is “exploring alternative options,” including making permanent some of its COVID-19 pandemic-related flexibilities.
Public Comments Deadline
Members of the public may submit formal written Comments by searching for “ICEB 2021-0010” in the Federal eRulemaking Portal at https://www.regulations.gov.” The deadline for comments is October 17, 2022.
Good luck commenting on proposals not made, not known, not described in any detail, and without a definitions section. Treat this NPRM for what it actually appears to be: a request for “BlueSky” ideas to help DHS ICE make a seamless conversion to remote documentation of the Form I-9. It is not a request for trial evidence as it was intended to be. That is what NPRM public comments are (information used to inform the federal agency’s decision making so it will make well-informed decisions and to thereafter serve as evidence to prove in the federal courts that the resulting Final Rule was not “arbitrary and capricious” given the public comments, and in accordance with law, if that is the result of the Final Rule).
How We Got Here
Due to remote work locations the COVID-19 pandemic health emergency induced, ICE announced in March 2020 that it would exercise its prosecutorial discretion to NOT require employers to comply with its “physical presence requirements” (for new hires) when a company was completing the I-9 Form and inspecting an applicant’s identity documents. The guidance applied only to employers operating remote workplaces. Under that guidance, an employer, or an authorized representative acting on the employer’s behalf, could inspect remotely (such as over video link, fax, or email) those identity documents applicants offered to satisfy the employers need to complete Form I-9 within three business days of the employee’s first day of employment. ICE instructed employers to enter COVID-19 as the reason for the physical examination delay in Section 2 “Additional Information” field, of the Form I-9. Under that guidance, employers were required, once normal onsite work operations resumed, to physically examine the original documents to confirm their authenticity and enter the notation “documents physically examined” along with the date of inspection in Section 2 “Additional Information” field.
The DHS initially had these provisions in place for a period of 60 days. ICE periodically extended them as the COVID-19 national health emergency continued. On March 31, 2021, ICE updated the March 20, 2020, announcement 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. The announcement further stated 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. Subsequently, due to the ongoing COVID-19 pandemic, ICE extended these flexibilities several times: the latest announcement, issued on April 25, 2022, extended the temporary flexibilities until October 31, 2022. (For background see WIR, Friday, March 20, 2020: DHS Announced Flexibility in Form I-9 Compliance, Tuesday, August 18, 2020: ICE Relaxes Form I-9 “Physical Presence” Requirement to September 19, and Monday, October 25, 2021: Comment Now on the Remote Document Examination Process for the I-9 Form).
USCIS received 315 public comments to its October 26, 2021, Notice (86 FR 59183) which sought public input regarding document examination practices associated with the Form I-9, including alternative, remote practices. While the vast majority supported a remote document examination option, some expressed concerns over document fraud, the agency reported. ICE emphasized that the proposal “would not directly authorize remote document examination, but it would create a framework under which the DHS could pilot various options, respond to emergencies similar to the COVID-19 pandemic, or implement permanent flexibilities upon a specific determination as to the level of security, including, but not limited to, fraud risk.”