Form I-9 Update: Revised Employer Handbook and Relaxed Document Requirements

Morgan Lewis

Morgan Lewis

The US Department of Homeland Security published new instructions on Form I-9 completion for employees with expired identity documentation on May 1, 2020, as well as a revised employer Form I-9 handbook. As of May 1, all employers must use the October 21, 2019 edition of Form I-9 to verify employment eligibility.

Relaxed Form I-9 Requirements: Expiring Documents and Remote Hires

The US Department of Homeland Security (DHS) implemented a number of temporary policies related to I-9 compliance, which we summarized in an earlier alert, to minimize the burden on both employers and employees due to the coronavirus (COVID-19) pandemic. On May 1, 2020, DHS issued additional guidance providing an automatic extension for some expired identity and work authorization documents.

List B Documents: Driver’s License or State ID

If an employee’s state ID or driver’s license expired on or after March 1, 2020, and the state extends the document expiration date due to COVID-19, then the facially expired document remains acceptable as a List B document for Form I-9 purposes.

  • Enter the document’s expiration date in Section 2 and enter “COVID-19 EXT” in the “additional information” field. Employers may also attach a copy of the state motor vehicle department’s webpage or other notice indicating extension of the document validity.

Identity documents found in List B with an expiration date on or after March 1, 2020 are acceptable and should be treated as a valid receipt for an acceptable document for Form I-9 purposes. 

  • Enter the document information in Section 2 under List B, as applicable, and enter “COVID-19” in the additional information field. Within 90 days after the termination of this temporary policy, the employee will be required to present a valid unexpired document to replace the expired document presented when they were initially hired.
  • When the employee later presents an unexpired document, employers should record the number and other required document information from the actual document presented in the Section 2 additional information field, and initial and date the change.

Complying with Form I-9 Rules When New Hires Are Starting Work Remotely

On March 20, DHS and US Immigration and Customs Enforcement (ICE) announced flexibility in complying with physical presence requirements requirements related to Form I-9, Employment Eligibility Verification. Under the temporary guidance, the following apply:

  • Employers with employees taking physical proximity precautions due to COVID-19 are not required to review the employee’s identity and employment authorization documents in the employee’s physical presence.
  • Employers must inspect the Section 2 documents remotely (e.g., over video link, fax, email) and obtain, inspect, and retain copies of the documents within three business days for purposes of completing Section 2.
  • Employers also should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 additional information field once physical inspection takes place after normal operations resume.
  • 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.
  • These provisions may be implemented by employers for a period of 60 days from May 1, 2020 or within three business days after the termination of the national emergency, whichever comes first.

Updates Regarding Completion of New Form I-9

The US Citizenship and Immigration Services (USCIS) recently published an updated M-274, Handbook for Employers: Guidance for Completing Form I-9, which provides employers with key guidance for completing the form. Here are some of the most relevant updates and clarifications.

Automatic Extensions of EAD Validity

Sections 4.4 and 6.4.2 confirm that employers should enter expiration date changes based on automatic extensions of employment authorization documents (EADs) in the additional information field in Section 2. Previously, employers were instructed to have the employee cross out and initial information in the “Alien authorized to work until” expiration date field in Section 1.

Section 4.4 provides instructions related to the completion of Form I-9 with EADs automatically extended by Federal Register notices.

Cap-Gap Extensions

Section 6.4.2 confirms that employers should enter the receipt number from Form I-797C, Notice of Action, as the employee’s document number in Section 2. Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, is no longer required.

F-1 and J-1 Work Authorization Expiration Date

Section 6.4 updates the directions for Form I-9 completion for J-1 exchange visitors and F-1 nonimmigrants including instructions for curricular practical training (CPT), optional practical training (OPT), STEM-OPT, and cap-gap protection for F-1 students.

Form I-9 Retention

Sections 9.0–9.2 confirm but do not change how long employers should retain Forms I-9, the form in which employers can retain Forms I-9, and how quickly employers must produce Forms I-9, if requested.

  • Never dispose of a current employee’s Form I-9; keep it for as long as the employee is employed and for a certain amount of time after their employment ends.
  • When an employee stops working, the employer should calculate how long to keep the employee’s Form I-9. Federal regulations require that employers retain a Form I-9 for each person they hire for three years after the date of hire, or one year after the date employment ends, whichever is later.

Additional Resources

See the full list of temporary policies related to Form I-9 requirements.

For additional information related to completion of Form I-9, please review M-274, Handbook for Employers: Guidance for Completing Form I-9.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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