I-9 Update Affecting Unexpired Documents Becomes Effective July 31, 2022

Tarter Krinsky & Drogin LLP

During the COVID-19 pandemic, the U.S. Department of Homeland Security (DHS) instituted temporary accommodations governing the renewal of documents for Form I-9 purposes relating to employment authorization in all work settings. Specifically, DHS allowed employees to present expired List B documents between May 1, 2020, and April 30, 2022.

On May 1, 2022, DHS withdrew that temporary policy and advised that those Forms I-9 would have to be updated by July 31, 2022. See a listing of acceptable documents for Form I-9 here.

We have previously covered some aspects of the continued eligibility to extend documents relating to I-9 compliance automatically here.

What Has Changed?

  • In situations where the employee is still employed, the employee should be asked by the employer to furnish an unexpired document that establishes identity. The document might be the renewed List B document, or alternately, a List A document that would establish both identity and employment authorization.
  • In this situation, the employer should include 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.
  • Where an initial List B document appears to be expired, but was automatically extended by the issuing authority, then it would have been considered unexpired when presented by DHS, and no action is required.
  • Where an employee no longer works for the employer, there is no need to take any further action.

What Other Actions Should Employers Take?

While List B documents are no longer viable for I-9 purposes, eligible employers might still review the Forms I-9 documents virtually, over video link, or by fax or email until October 31, 2022. This ability facilitating flexibility remains in place until an employee undertakes non-remote employment on a regular and consistent basis, or when the policy is terminated. It is possible that the virtual I-9 flexibility rules introduced during COVID-19 might be introduced as a permanent change. DHS is currently in the midst of its rulemaking process in this area of I-9 compliance. On July 25, U.S. Citizenship and Immigration Services indicated that submission of reproduced signatures on formal U.S. petition filings would become the agency’s permanent policy. It is hoped that DHS also considers similar reforms in the I-9 compliance arena as we head out of the pandemic era.

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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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