April 19, 2022

Updated Federal Forms Part 2: I-9 Identification Documents Must Be Unexpired

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The Federal Government has updated some of its standard forms employers are probably used to seeing. Last week, we discussed the EEOC's addition of a gender marker option to its voluntary self-identification process and passport applications. This week, we will discuss the changes to Form I-9.

Federal law requires that every employer who recruits, refers for a fee, or hires an individual for employment in the U.S. complete Form I-9, Employment Eligibility Verification.

For the past two years, in response to the difficulties many individuals experienced with renewing documents during the COVID-19 pandemic, the Department of Homeland Security ("DHS") provided temporary document flexibilities in the I-9 identification process. However, starting on May 1, 2022, employers may no longer accept expired List B identity documents when completing the Form I-9 process (for example, state driver's licenses, identification cards issued by federal, state, or local agencies, or school identification cards). After May 1, 2022, employers must require unexpired List B documentation for new employees hired. Moreover, employers must review their Form I-9's, and if an employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers are required to update their Forms I-9 by July 31, 2022, per the following guidance:

  • If the employee who provided the expired document is no longer employed, no action is required.
  • If the List B document was auto extended by the issuing authority (so it was unexpired when presented), no action is required.
  • If the employee's Form I-9 was completed between May 1, 2020, and April 30, 2022, with an expired List B document and that document expired on or after March 1, 2020, and that employee is still employed, have the employee provide an unexpired document that establishes identity. Employees may present the renewed List B document, a different List B document, or a document from List A. Enter new document information in the "Additional Information" field of Section 2, and initial and date the change as the employer. See example.

On a related note, the DHS published a notice on March 30, 2022, to invite public comments on its proposed revisions to Form I-9. A 60-day comment period will be open until May 31, 2022. To review the proposed revisions to the form and instructions and submit a comment, go to Federal Register notice 87 FR 18377.

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