Form I-9 Temporary Policies Resulting from COVID-19 Ending

By Marylou Fabbo - Skoler, Abbott & Presser, P.C.

April 13, 2022

The Department of Homeland Security (“DHS”) has announced that certain temporary policies pertaining to the Employment Eligibility Verification (“Form I-9”) that were put into place as a result of the pandemic are coming to an end on April 30, 2022.  In addition, employers must  update all Forms I-9 for those employees who utilized the temporary measures afforded.

Virtual Verification of Identity and Employment Authorization Documents

Employees hired between March 20, 2020 and April 30, 2022 who work(ed) exclusively in a remote setting due to COVID-19-related precautions were temporarily exempt from the physical inspection requirements of the Form I-9 until they undertook non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.  Flexibilities will be terminated on April 30, 2022.

As of May 1, all employees who were onboarded using virtual verification, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.  Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.

This requirement is not limited to employees who work at their employer’s workplace.  It includes employees who will continue to work remotely and were onboarded using virtual verification.  In cases where employees do not report to a workplace and the employee is not nearby, employers could chose to use a third-party (such as a notary) to conduct the inspection.   However, they remain solely responsible for any issues with the Form I-9.  All forms must be updated within three days of the end of the temporary order.  

(There has been talk about a new regulation that would permanently permit remote document inspection unrelated to the pandemic.  We expect to see a proposed regulation this summer.)  

Expired List B Identity Documents

Due to restrictions associated with the pandemic, including stay-at-home orders and business closings, employees faced difficulties renewing state drivers’ licenses, state ID cards, and other Form I-9, Employment Eligibility Verification, List B identity documents.  Recognizing those problems, during the pandemic, DHS issued a temporary policy regarding expired List B identity documents used to complete Form I-9, Employment Eligibility Verification.  Under that policy, identity documents found in List B that expired on or after March 1, 2020, and were not otherwise extended by the issuing authority, could be treated as if the identity document had not  expired.  That temporary policy will expire on April 30, 2022.

By July 30, 2022, employees must present an unexpired document and employers must update the Form I-9 of any employee who presented an expired List B document between May 1, 2020, and April 30, 2022.  If you accepted an expired List B document, you must have your employee present a valid, unexpired document to replace the expired document presented when they were initially hired no later than July 30, 2022.  The DHS prefers that the employee present the replacement of the actual document that was expired, but if necessary, the employee may choose to present a different List A or List B document or documents and the employer should record the new document information in the Additional Information Field.

In summary, when the employee later presents an unexpired document, the Form I-9 Section 2 Additional Information must be updated to reflect the number and other required document information from the actual document presented.  The employer must also initial and date the change.  Please note that only the employer may complete changes to Section 2.

Employers can monitor DHS’s and Immigration and Customs Enforcement’s workforce announcements for any additional changes.

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