In 2020, the U.S. Department of Homeland Security relaxed some of the I-9 compliance requirements because of the COVID-19 pandemic. Recently, the DHS announced that one of these I-9 compliance flexibilities would end on April 30, 2022 – the temporary policy allowing employees to present an expired List B identity document to prove identity.
Does this mean that the DHS will tighten up again on other I-9 compliance requirements? The “relaxation” of 2020 also included allowing employees to present their required identity and employment authorization documents virtually rather than in person. Although this policy initially applied only to those whose workplaces were exclusively remote because of COVID-19, the policy was expanded in April 2021 to all new hires who were working remotely, even if their co-workers were not. The policy is in effect until the end of next month, but will it be terminated after that date?
Normal I-9 requirements
Before 2020, the I-9 requirements were as follows:
- Employee completes Section 1 of the I-9 no later than the first day of employment, but not before the offer of employment is accepted.
- For Section 2 of the I-9, the employee, in the presence of the employer or authorized representative, must present the requisite identity and employment authorization documents within three business days of the employee’s first day of work. These are either a List A Identity and Employment Authorization Document, or an Identity Document from List B plus an Employment Authorization Document from List C.
- Section 3 of the I-9 deals with rehires, and re-verifications where there is a change or update in an employee’s status. If an employee is rehired within three years of the date that a previous Form I-9 was completed, an employer can choose to complete either a new Form I-9 or to update Section 3 of the previously prepared I-9.
The employee was required to carry out his or her part of these requirements in person.
Relaxed 2020 requirements
Beginning May 1, 2020, because of stay-at-home orders due to COVID and the fact that there were restrictions on getting identity documents renewed, the normal I-9 requirements were loosened. The DHS allowed employees to satisfy their List B requirements by presenting identity documents that had expired on or after March 1, 2020. Employees were also allowed to present their identification documents remotely or virtually rather than in person.
2022: Tightening back up
The DHS’s recent announcement means that expired List B documents should not be accepted after April 30, 2022.
List B identity documents include those with a photo, such as state driver’s licenses, identification cards issued by federal, state, or local agencies, or school identification cards.
Of course, employers may have accepted expired I-9 documents between May 1, 2020, and April 30, 2022. If so, here are the rules that will apply:
- Former employees. No action is required.
- Current employees whose List B document was automatically extended by the issuing authority. If, because of the extension, the document was unexpired when presented, no further action is required.
- Current employees whose List B document was expired. Employers should request the employee to present a “renewed List B document, a different List B document, or a document from List A.” In the “Additional Information” field of Section 2, the employer should enter the title of the document, the issuing authority, the number, and the expiration date. The employer should then initial and date the change.
The DHS is providing a “transition period” for employers to come back into compliance with the new-old rules, through July 31.
Remote presentation of I-9 documents after April 30
The Immigration and Customs Enforcement has not yet definitively said that it will terminate its policy of letting employees present their I-9 documents remotely. However, the current policy applies only through April 30, and ICE indicated in 2020 that it would return to requiring in-person presentation:
Once normal operations resume, all employees who were onboarded using remote verification, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.
Assuming a decision will soon be made to terminate remote presentation of documents, additional instructions may be provided, as they were for the use of List B expired documents.
Employers who have accepted expired List B documents should get ready to update their I-9 forms in accordance with the DHS instructions above. Although the changes technically take effect May 1, the DHS is allowing a transition period through July 31.
It is hoped that a similar transition period will be provided when the remote presentation policy ends. It is likely that the number of employees working remotely and covered by this policy will far exceed those who presented an expired List B document. Requiring only three business days to complete all in-person document inspections could be a substantial burden to employers.