Federal law requires that employers attest to verifying each employee’s identity and authorization to legally work in the United States. By regulation, employees must present original, unexpired documents from the U.S. government’s published lists of acceptable documentation, which are classified as List A (Documents that Establish Both Identity and Employment Authorization), List B (Documents that Establish Identity) and List C (Documents that Establish Employment Authorization).

In March 2020, COVID-19 was declared a National Emergency and soon thereafter the Department of Homeland Security (DHS) announced a temporary policy permitting employers to accept expired List B (Documents that Establish Identity) due to the difficulties employees faced in renewing documents as a result of the pandemic.

Now, approximately two years later, DHS announced that it is ending this temporary policy because document-issuing authorities have reopened or are providing alternatives to in-person renewals.  Consequently,

  • beginning on May 1, employers cannot accept expired List B documents;
  • by July 31, 2022, employers must update the Form I-9 for any employee that presented an expired List B if the individual is still employed; and
  • no action is required by employers if an employee presented an expired List B but is no longer employed.

We anticipate that DHS will continue to review and adjust temporary policies that were enacted in response to the pandemic. Employers that conduct Form I-9 audits on a regular basis will be in a stronger position to comply with the above requirements. Audits should reveal opportunities for improved compliance, mitigation, or remediation. Organizations can create an internal leadership team to provide strategic oversight to prepare for changes to government policies (including possible regulatory changes to the document examination process) and empower this group through regular compliance training from outside counsel. With the assistance of counsel, an organization can develop a policy detailing how to best conduct the verification process and compliance audits in a manner that reflects its needs.