Employers that accepted expired Form I-9 employment eligibility verification documents under the U.S. Department of Homeland Security’s (DHS) policy of flexibility during the height of the COVID-19 pandemic must update their Forms I-9 by July 31, 2022, the department confirmed.
On July 6, 2022, DHS told employers “to update their Forms I-9 by July 31, 2022” for all the employees who completed their I-9 verifications with expired documents between May 1, 2020, and April 30, 2022.
DHS instituted the temporary policy of allowing expired documents in 2020 in the face of difficulties for employees in obtaining up-to-date identity documents due to stay-at-home orders and government office closures during the COVID-19 pandemic. Now that document-issuing authorities have reopened, DHS has ended this flexibility as of May 1, 2022, and employers are only allowed to accept unexpired List B documents, which include driver’s licenses, state identification cards, and school photo identification cards.
According to guidance provided by DHS, this update has several consequences for an employee who completed I-9 verification between May 1, 2020, and April 30, 2022, with documents that expired on or after March 1, 2020.
The expiration of the flexibility policy means that DHS requires employers to do the following if the employee is still employed:
- Have the employee provide unexpired documents that establish identity, either through a renewed List B document or a different List B document or a List A document.
- Fill in the “Additional Information” field in Section 2 of the I-9 form with the employee’s new unexpired document: (1) Title; (2) Issuing Authority; (3) Number; and (4) Expiration Date.
- Initial and date the change.
For employees who are no longer employed or who presented an unexpired or auto-extended List B document “no action is required,” according to the DHS guidance.
The policy reminder comes after the DHS’s Immigration and Customs Enforcement (ICE) agency, on April 25, 2022, extended a policy to relieve employers of the requirement of reviewing Form I-9 identity documents in the physical presence of employees until October 31, 2022. ICE had updated the policy in March 2021 to allow employers to continue the virtual document review for employees hired after April 1, 2021, who work exclusively in a remote setting due to COVID-19-related precautions until the end of the flexibility policy or until the employees return to non-remote work settings on a regular basis.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these and other policy changes and will post updates on the firm’s Immigration blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.
