The U.S. Department of Homeland Security (DHS) recently announced that it is ending its COVID-19 temporary policy concerning expired List B documents for Form I-9. Accordingly, beginning May 1, employers may no longer accept such expired documents when establishing the identity of employees. Additionally, the DHS provided directions for updating Form I-9s if employers previously accepted expired documents while the temporary policy was in effect. Earlier, in December 2021, U.S. Immigration and Customs Enforcement (ICE) and the DHS extended Form I-9 compliance flexibility, deferring physical inspections of documents until April 30th, 2022.
Background of the Temporary Policy
On May 1st, 2020, the DHS introduced a COVID-19 temporary policy allowing employers to accept expired List B documents for Form I-9 purposes. Stay-at-home orders and other changes made it difficult for employees to renew List B documents like IDs or driver’s licenses. Hence, the temporary policy allowed for some leniency regarding employment eligibility verification during the pandemic. In short, employers could treat documents expiring on or after March 1, the same as an unexpired document for Form I-9 purposes. List B documents include:
- a state driver’s license;
- an identification card issued by a state;
- S. military cards;
- school ID cards with a photo;
- Native American tribal documents; and
- voter registration cards.
Ending Acceptance of Expired List B Documents
However, departments and document-issuing authorities have either now reopened or can offer alternatives to in-person document renewals. Subsequently, the DHS will end its temporary policy that previously allowed acceptance of these documents. Beginning May 1, employers may only accept List B documents that have not expired. Furthermore, if an employer accepted an expired List B document between May 1st, 2020, and April 30th, 2022, they must update corresponding Form I-9s by July 31st, 2022.
Updating Form I-9
The DHS provides instructions for updating Form I-9s for certain situations. In general, the instructions cover employees who completed a Form I-9 between May 1st, 2020 and April 30th, 2022, using a List B document that expired on or after March 1st, 2020. Employers should make the appropriate updates to Form I-9s, if applicable. In particular, if the affected employee is still employed:
- The employee should provide an unexpired List B document establishing identity or a document from List A.
- Next, the employer should complete the “Additional Information” field in Section 2 of the Form I-9.
- Finally, the employer must initial and date the change.
Conversely, if the employee is no longer employed or if the List B document was extended by the issuing authority, the employer does not need to update the corresponding Form I-9. Regardless, employers should monitor the latest Form I-9 compliance and other hiring and onboarding requirements. After all, circumstances continue to evolve as the pandemic shifts into an endemic.