Employer Alert: Changes to Pandemic-era Allowance of Expired I-9 Verification Documents

March 29, 2022

The Department of Homeland Security (DHS) recently announced that its temporary COVID-19 pandemic policy of allowing employers to accept expired Form I-9 List B documents to verify employment eligibility is finally coming to an end.  Since May 1, 2020, and ending April 30, 2022, DHS has allowed expired documents such as drivers’ licenses and state identification cards to serve as proof of identity in response to the difficulties many individuals experienced with renewing documents during the COVID-19 pandemic either due to issuing authority closures or inability to timely renew documents. 

As a sign of better times where agencies have either reopened or provided alternatives to in-person renewals, starting May 1, 2022, employers may no longer accept unexpired List B documents.  In addition, the DHS directive requires that by July 31, 2022, employers must update I-9 forms if any expired documents were presented during the allowed time frame.

Here is a summary of the current requirements for employers:

• If the 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, and the employee is still employed:
  • The employee must provide an unexpired document that establishes identity. Employees may present the 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 enters the document:
    • Title;
    • Issuing authority;
    • Number; and
    • Expiration date.
    • The employer initials and dates the change. 
• If the 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, and the employee is no longer employed, no action is required by the employer.
• If the List B document was auto extended by the issuing authority, so it was unexpired when presented, no action is required by the employer.

In its directive, DHS remained silent regarding employers’ virtual review of Form I-9 documents which for now remains in effect until at least April 30, 2022.  For questions regarding I-9 compliance, contact McKague Rosasco LLP.