As of May 1, 2022, employers can no longer accept expired List B documents for Form I-9 Employment Eligibility Verification purposes, and any expired List B documents that were previously accepted must be updated by July 31, 2022.
Allowing employees to present these expired documents was a temporary policy instituted by the Department of Homeland Security in May 2020 to deal with the fact that various issuing authorities were not able to timely renew documents due to the COVID-19 pandemic. Now that issuing authorities are returning to more normal operations, this temporary policy is coming to an end.
If an employee presented an expired List B document between May 1, 2020, and April 30, 2022, the Form I-9 must be updated by July 31, 2022.
Here are the requirements:
If the employee who presented an expired List B document is still employed, the employee must provide an unexpired document that establishes identity. This could be a renewed version of the expired List B document that was previously presented, a different unexpired List B document, or an unexpired List A document that establishes both identify and work authorization.
Upon presentation, the employer should enter the following information about the new document in the Additional Information Field of Section 2 of the Form I-9: title, number, issuing authority, and expiration date. The employer should then initial and date that section of the form.
If the employee is no longer employed by the company, no action is necessary.
DHS has noted that, if the List B document that was initially presented was automatically renewed by the issuing authority when it was presented, then no action is necessary because the document was not considered to be expired.
As of this writing, eligible employers may still review Form I-9 documents virtually, over video link, or by fax or email. This flexibility continues until an employee undertakes non-remote employment on a regular, consistent, or predictable basis, or until the policy terminated. That flexibility has been continued until April 30, 2022. Many have requested that DHS continue this policy indefinitely because remote work continues to play an important role in the workplace, even as companies return to more normal operations. Whether the end of the policy regarding expired List B documents signals that the DHS will also end I-9 flexibility is yet to the seen.
If you have questions about the presentation of expired documents or Form I-9 flexibility, Jackson Lewis attorneys are available to assist.