DHS to End Temporary COVID-19 Policy on Expired List B Identity Documents May 1, 2022 | Mintz – Perspectives on Immigration


Effective May 1, 2022, the U.S. Department of Homeland Security (DHS) is ending its temporary policy allowing employers to accept expired List B identification documents for I-9 purposes. In the background, the DHS and the United States Immigration and Customs Enforcement (ICE) announced on March 19, 2020 that they would allow employers whose workforce worked remotely to defer physical presence requirements. associated with Employment Eligibility Verification (Form I-9) and Section 274A. of the Immigration and Nationality Act (INA). As part of its I-9 flexibility policy, DHS has also allowed employers to accept expired List B identification documents.

Employer Responsibilities

According to the DHS announcement, employers must resume accepting only unexpired List B documents as of May 1, 2022. Employers are required to update the I-9s of current employees who have submitted a list B expired on May 1, 2020 for April 30, 2022 effective period of the temporary policy. The deadline to update these I-9s is July 31, 2022. No action is required for those employees who are no longer employed by their employer. Additionally, no action is required if the List B document was automatically extended by the issuing authority such that it had not expired when submitted.

To update the I-9, the employee must provide an unexpired document establishing identity – either a renewed version of the expired document from List B, or another unexpired document from List B, or a document not expired from List A. In the “Additional Information” field in Section 2 of the I-9, the employer must enter the document title, issuing authority, number, and expiration date, and must initial and date the change. Please refer to the following example of an updated I-9, which can be found in the DHS announcement.

Please note that the DHS announcement does not address the flexibility for in-person Form I-9 compliance, which is currently in effect until at least April 30, 2022. This flexibility allows employers whose entire workforce works remotely to defer the physical presence requirements associated with Form I-9 and INA Section 274A. In addition, it applies to employees hired on or after April 1, 2021, who work exclusively in a remote environment due to COVID-19 precautions.

As part of this flexibility, eligible employers are not required to review employee identity and work authorization documents in person, and can instead inspect these documents remotely, using “a video link, fax or e-mail, etc.” Employers must also comply with the document retention and re-verification requirements described in more detail here.

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