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HR Law Alert: Form I-9 Rule Flexibilities Ending Soon

DHS Ending Temporary Policy for Form I-9 Identity Documents
Beginning May 1, 2022, the Department of Homeland Security (DHS) is ending its temporary Form I-9 policy that allows employers to accept List B documents that expired on or after March 1, 2020.

DHS adopted the temporary policy in response to the difficulty of renewing documents during COVID. Since then, document-issuing authorities have reopened or provided alternatives to in-person renewals. Starting May 1, 2022, employers must return to only accepting unexpired List B documents.

Action Item
If an employee presented an expired List B document between May 1, 2020, and April 30, 2022, you need to update their Form I-9 by July 31, 2022, as follows:

* If the employee is still employed, they must present an unexpired document from either List A or List B. If presenting a List B document, it could be a renewed version of the document previously provided, or a different List B document. You should enter the document title, issuing authority, document number, and expiration date in the “Additional Information” field of Section 2, and initial and date the change. USCIS provides an example of how to do this here.

* If the employee is no longer employed, no action is needed.

* If the List B document was auto-extended by the issuing authority so that it was technically unexpired when it was presented, no action is needed.

Remote Form I-9 Document Inspection Flexibility Scheduled to End April 30
In March 2020, DHS began providing flexibility to certain employers who were hiring fully remote workers due to COVID by suspending the in-person Form I-9 document inspection requirement.

This flexibility has been extended several times, most recently through April 30, 2022. While DHS could still announce another extension, given the end of the expired document flexibility described above, we anticipate that this in-person inspection flexibility may also come to an official end.

Action Item
Prepare to resume in-person Form I-9 document examination. You can keep an eye on this page for additional Form I-9 news and can revisit Form I-9 Instructions here.

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