United States: DHS to End Temporary COVID-19 Policy on Expired List B Identity Documents on May 1, 2022
March 18, 2022
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At a glance
- DHS has announced that it is ending its temporary policy of allowing employers to accept expired List B identity documents during the COVID-19 pandemic, effective May 1, 2022.
- Beginning May 1, 2022, employers may accept only unexpired List B documents.
- Employers will have until July 31, 2022, to update the I-9s of current employees who presented expired List B documents under the temporary policy.
A closer look
Effective May 1, 2022, the U.S. Department of Homeland Security (DHS) is terminating its temporary policy of allowing employers to accept expired List B identity documents for I-9 purposes. The temporary policy, which has been in effect since May 1, 2020, was intended to address the difficulties in renewing expiring identity documents during the COVID-19 pandemic. With document-issuing authorities having reopened and/or providing alternatives to in-person renewals, DHS is ending this temporary accommodation. Effective May 1, 2022, employers must resume accepting only List B documents that are unexpired.
Requirement to Update Certain I-9s by July 31, 2022
According to the DHS announcement, employers are required to update the I-9s of current employees who presented an expired List B document during the May 1, 2020 to April 30, 2022 effective period of the temporary policy. The deadline for updating these I-9s is July 31, 2022.
To update the I-9, the employee must provide an unexpired document establishing identity – either a renewed version of the expired List B document, or a different, unexpired List B document, or an unexpired List A document. 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. A sample of an updated I-9 can be found in the DHS announcement.
Employers are not required to update the I-9s of individuals who are no longer employed with the company. In addition, no action is required if a List B document was auto-extended by the issuing authority, such that the document was deemed unexpired at time of presentation.
The DHS announcement does not address the separate Covid-19 accommodations relating to remote I-9ing, which remain in effect through at least April 30, 2022. The DHS’s regulatory agenda continues to include plans for a proposed regulation that would provide alternatives for the in-person inspection of identity and employment authorization documents in the I-9 process. The proposed regulation is tentatively slated for publication in June 2022, but publication of proposed regulations is often delayed.
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen or the firm’s Government Strategies and Compliance Group.
