The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) provided temporary flexibility on Form I-9 compliance at the onset of the pandemic. Part of this flexibility included a temporary policy allowing employers to accept expired List B identity documents to ease the renewal challenges that accompanied stay-at-home mandates and other COVID-19 issues. Now, after multiple extensions, the DHS has announced that employers can no longer accept expired List B documents beginning May 1, 2022.
What actions do employers need to take to remain compliant?
An I-9 form allows companies in the U.S. to verify the identity of each employee (citizen or non-citizen) and their eligibility to work within the United States. The required form has separate sections that must be completed by the employee and employer (or authorized representative of the employer). Compliance with all current I-9 verification provisions (as well as any other I-9 specifications) is vital, as government inspections can reveal violations that carry hefty fines — often ranging from $110 to $1,000 for each violation per employee.
To ensure that they remain compliant with List B identity document requirements, employers will want to first take a look at all employee I-9 forms completed between May 1, 2020 and April 30, 2022 with a List B document that expired on or after March 1, 2020. From here, there are a few scenarios to consider for all employees that meet this criteria:
Scenario 1: A current employee has expired List B documents
If a current employee who was or is hired between May 1, 2020 and April 20, 2022 has an expired List B document, they will need to provide the employer with an updated I-9 form to keep on file. Each affected employee must provide a renewed List B document or a different unexpired List B or List A document by July 31, 2022.
Upon receiving an updated driver's license, state-issued ID or other acceptable identification verification, employers must populate the “additional information” field in Section 2 of the I-9 form with the verification document’s title, issuing authority, number and expiration date. After filling in this information, employers should make sure to initial and date that section of the form.
Scenario 2: An employee’s List B document expiration date was auto-extended
Some issuing authorities recognized the challenges of state and local stay-at-home orders and allowed expiration dates to auto-extend. Employees presenting documents that are within the extension period designated by the issuing authority are not considered expired. In these cases, employers do not need to take any action to remain compliant.
Scenario 3: A former employee that is no longer with the company has expired documents
If an employee has separated from the organization, the employer does not need to take any further action. With that said, employers must ensure that they keep all mandatory paperwork on file for the time required by law.
What doesn’t the latest DHS announcement address?
While the DHS has announced that employers can no longer accept expired List B documents beginning May 1, 2022, they did not address the separate COVID-19-related guidance allowing employers to review Form I-9 documents virtually. This flexibility will remain in effect until at least April 30, 2022.
The latest DHS regulatory agenda includes plans that would include alternatives for the in-person inspection of I-9 identity and employment authorization documents, but it remains unclear if it will remove the requirement for I-9s completed virtually during COVID-19 to be updated with an in-person review.
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