Department Of Homeland Security Ends the COVID-19 Temporary Policy For Expired List B Identity Documents

by Lizbeth (Beth) V. West
The Labor & Employment Law Blog

During the COVID-19 pandemic, the U.S. Department of Homeland Security (“DHS”) adopted a temporary policy in response to the difficulties many individuals experienced with renewing documents.  As part of that temporary policy, employers were permitted to consider expired List B identity documents when completing the Form I-9 (“Employment Eligibility Verification”) which is required for employment in the United States.

The DHS recently announced that because document-issuing authorities have reopened and/or have provided alternatives to in-person renewals, the DHS is ending the temporary policy. Starting May 1, 2022, employers must only accept unexpired List B documents when completing Form I-9s.

BUT… that’s not all.  If an employee’s Form I-9 was completed between May 1, 2020 and April 30, 2022 with an expired List B document and that document expired on or after March 1, 2020, the employer has an affirmative obligation to take additional steps to comply with the law if the employee is still employed.

The DHS requires that the employer do the following by July 31, 2022:

  • Have the employee provide an unexpired document that establishes identity. Employees may present the renewed List B document (of the previously expired document presented), a different List B document or a document from List A.
  • In the “Additional Information” field in Section 2 of the Form I-9, the employer enters the document title; issuing authority; number; and expiration date.
  • The employer initials and dates the change made on the Form I-9.

Employers should audit all Form I-9s completed between May 1, 2020 and April 30, 2022 to determine if any of them need to be updated with a current (unexpired) identity document. Employers are also reminded that it is a violation of federal law to knowingly hire and employ an individual who is not authorized to work in the United States. Thus, if an employee is unable to provide an acceptable unexpired identity document to update the Form I-9, employers should seek legal counsel regarding the appropriate steps to take in order to avoid potential legal exposure.

More information about Form I-9 compliance can be obtained from the DHS website at https://www.uscis.gov/i-9-central