Employers whose employees presented expired List B documents for Form I-9 Employment Eligibility Verification purposes between May 1, 2020, and April 30, 2022, must update Form I-9 with unexpired documents by July 31, 2022.
Since COVID-19 prevented various issuing authorities from renewing documents on time, DHS temporarily instituted a policy allowing employees to present expired List B documents between May 1, 2020, and April 30, 2022. On May 1, 2022, DHS rescinded that temporary policy and announced that those Forms I-9 would have to be updated by July 31, 2022.
If the employee is still employed:
- Ask the employee to provide an unexpired document that establishes identity. This could be the renewed List B document, a different List B document, or a List A document that establishes both identity and employment authorization.
- The employer should complete the document’s title, issuing authority, number, and expiration date and initial and date the change in the “Additional Information” box in Section 2 of the Form I-9.
If the initially presented List B document appeared to be expired, but actually was automatically extended by the issuing authority, then it was considered unexpired when presented by DHS. Then, no action is required.
If the employee is no longer employed:
While expired List B documents are no longer viable for I-9 purposes, eligible employers may still review Form I-9 documents virtually, over video link, or by fax or email until October 31, 2022. This flexibility continues until an employee undertakes non-remote employment on a regular, consistent, or predictable basis or until the policy is terminated. And the policy may not be terminated. The temporary virtual I-9 flexibility could be made into a permanent rule, as DHS is already in the midst of the rulemaking process.
Jackson Lewis attorneys will provide updates as they become available.
