Beginning May 1, employers will no longer be able to accept expired identity documents when verifying an employee’s work eligibility on Form I-9.
The U.S. Department of Homeland Security (DHS) is ending its temporary COVID-19-related policy of allowing employers to use expired List B identity documents for I-9 purposes.
List B identity documents include driver’s licenses and state ID cards.
In May of 2020, the Department of Homeland Security created a temporary policy allowing employees to present these expired documents to deal with the fact that various issuing authorities were not able to timely renew documents due to the COVID-19 pandemic. This temporary policy is now coming to an end due to issuing offices returning to more normal operations.
The DHS announcement comes with a new directive, however. Employers are required to update—by July 31—the I-9s of current employees who presented expired List B documents between May 1, 2020, and April 30, 2022.
According to DHS:
- If the employee who presented an expired List B document is still employed, he or she must provide an unexpired document that establishes identity. This can be a renewed version of the expired List B document that was previously presented, a different unexpired List B document, or an unexpired List A document such as a U.S. passport or permanent resident card that establishes both identify and work authorization.
- If the employee is no longer employed by the company, no action is necessary. In addition, no action is required if a List B document was auto extended by the issuing authority.
Upon presentation of the new document, the employer should enter the title, number, issuing authority and expiration date in the Additional Information Field of Section 2 of the Form I-9, and then initial and date that section of the form.
The Future of Virtual Review Is Uncertain
The DHS announcement does not address the separate COVID-19-related guidance allowing employers to review Form I-9 documents virtually. That flexibility remains in effect until at least April 30.
This announcement signals to us that we are nearing the end of the COVID-19 relaxation of the in-person review policy. Companies should start to address and review I-9’s that were virtually completed, and update as-needed.
The latest DHS regulatory agenda includes plans to propose a new rule that would provide alternatives for the in-person inspection of identity and employment authorization documents in the I-9 process. The proposed rule is tentatively slated for publication in June.
It is recommended that employers start to wean away from the virtual review process for the time being.
Completing Form I-9 updates as soon as possible may relieve pressure once the virtual review policy ends. Ultimately, the company is responsible for any violations, so it is important to review these I-9s carefully.