BACKGROUND: U.S. employers are required to execute Forms I-9, Employment Eligibility Verification (Form I-9) for all employees. The form names specific documents which may be presented to establish identity and employment authorization, arranged in three lists: List A are documents which demonstrate both employment authorization and identity like U.S. passports; List B are documents which demonstrate identity like state driver’s licenses; and List C are documents which demonstrate employment authorization like Social Security Cards.
During the 2019 novel coronavirus pandemic (“Pandemic”), the U.S. Department of Homeland Security (DHS) treated List B identity documents which were set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes. This effectively permitted employers to postpone documenting a valid List B document until DHS terminated the exception, at the end of the Pandemic.
This exception to the basic policy that documents must be valid and unexpired when employees present them, is sunsetting with the end of the Pandemic. DHS has set May 1, 2022 as the date, after which employers will not be able to employ anyone on an expired List B document.
PRACTICAL APPLICATION OF THE POLICY CHANGE: DHS has provided an excellent chart and explanation of these changes. Note, though, that this changed does not require that employers reverify their Form I-9s or request List B documents from everyone whose documents may have expired. This is a change which ONLY applies to:
- Employees who presented an expired List B document between May 1, 2020, and April 30, 2022 and
- New employees, hired on or after May 1, 2022.
Employees who presented valid, unexpired List B documents and whose documents have expired since they started their employment are generally not required to again demonstrate eligibility for employment on a Form I-9. They should not be asked to present new List B documents, short of a company-wide reverification of Form I-9s.
For those employees who DO fit into the group of persons who presented an expired List B document between May 1, 2020, and April 30, 2022 must present a valid, unexpired document as proof of identity. They may present a renewed List B document, a different List B document, or a List A document.
Note that there is a narrow exception in that jurisdictions automatically extended the validity period of the document. In such cases, the document wasn’t expired when they began working and, so, they do not need to present qualifying List B documents.
CONCLUSION: The responsibility for verifying identity and employment authorization of employees remains on the employer. During the Pandemic, DHS created flexibilities to address the practical limitations of identity document availability. Those limitations are coming to an end in most jurisdictions and DHS is withdrawing the flexibilities. The aforementioned instruction is thorough and charted well, though nuanced challenges may arise for which legal counsel is necessary.
The Green and Spiegel compliance and enforcement practice has been monitoring this evolving situation closely and we will continue to update our blog and provide E-Alerts to advise on the latest developments. We have the experience and capacity to serve client compliance interests well. If your company wants help with such matters, please contact our Corporate Compliance Practice. You can also call or text me directly at 484-645-4194 or email me at dspaulding@gands-us.com.
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