The End is Near: COVID-19 List B Document Temporary Policy Ends

Seyfarth Shaw LLP

[co-author: Matthew Parker, and Amber Olson]

On July 22, 2022, U.S. Citizenship and Immigration Services (USCIS) issued a reminder regarding the Department of Homeland Security’s (DHS) termination of the COVID-19 temporary policy allowing employers to accept expired List B documents for the Form I-9. As of May 1, 2022, employers must only accept unexpired List B documents.

As discussed in previous blogs, DHS adopted a temporary policy at the onset of COVID-19 in 2020 to allow expired List B documents to be accepted for Form I-9 purposes in response to the many difficulties individuals experienced with renewing identity documents. Since May 1, 2022, DHS has returned to their original policy which only allows for unexpired List B documents to be used for the Form I-9.

USCIS reminds employers that they are required to update Forms I-9 for any employees who presented an expired List B document between May 1, 2020 and April 30, 2022 that were not formally extended by their issuing authority, by July 31, 2022 – that’s this weekend! To update, employees must be asked to provide either an unexpired List B document, or unexpired List A document. Please note, if the employee originally presented a List B document that was formally extended by the document’s issuing authority, no further action is required.

The USCIS announcement also offers an informational chart outlining the specifics of updating these Forms I-9 – see below.

Credit – USCIS:

Importantly, and unfortunately USCIS does not include this in the reminder announcement, don’t forget that the guidance for updating Section 2 differs depending on who reviewed the original List B document and who is now reviewing the new List B (or List A) document. If the individual reviewing the new document is the same, simply record the document information in the Additional Information box and initial and date. See Form I-9 Mark Up provided by USCIS. However, if the individual reviewing the new document is different from the original reviewer, then employers have two (2) options:

  1. Record the document information in the Additional Information box and sign their full name and title, instead of initials – and don’t forget to date!
  2. Complete a new Section 2 and attach to the original 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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