In response to the COVID-19 pandemic, the Department of Homeland Security (DHS) temporarily announced some flexibility in requirements for employee eligibility verification, allowing employers to accept certain types of expired identification for Form I-9.

• That flexibility ends May 1, 2022

• Employers must take three actions by July 31, 2022

• Relaxation of the in-person verification requirement extended to April 30, 2022

DHS has now announced that employers will no longer be permitted to accept expired List B documents, effective May 1, 2022. List B identity documents include driver's licenses and state ID cards. Employers that accepted expired List B documents between May 1, 2020 and April 30, 2022 must update their I-9s by July 31, 2022.

Three actions to take now

1. If the employee who presented an expired List B document is still employed, an unexpired document that establishes identity must now be provided. This includes

   • A renewed version of the expired List B document that was previously provided

   • A different unexpired List B document

   • An unexpired List A document (such as a valid U.S. passport)

2. Employers are required to enter the following information from the document in the ‘Additional Information’ field of Section 2 of Form I-9:

   • Title

   • Issuing authority

   • Number

   • Expiration date

3. The employer must initial and date the changes made.

If the employee is no longer employed by the company, no action is needed. Likewise, no action is necessary if a List B document was auto-extended by the issuing authority.

The DHS announcement does not address the separate COVID-19-related temporary guidance allowing employers to review Form I-9 documents virtually. DHS has extended the in-person verification requirement flexibility provisions on several occasions throughout 2020 and 2021, with the most recent extension until April 30, 2022.

The virtual review policy has proven popular among employers as remote work continues to play an important part in workplace operations. DHS is expected to introduce a permanent virtual review policy in response.

Your business is responsible for any violations, so review I-9s with care. We advise completing the I-9 review process as soon as possible to avoid unnecessary pressure once the policy ends. If you have employees that have not yet returned to the office, consider the authorized representative process, in which a third party completes the I-9 on the company’s behalf.