Update 4/28/22: On April 25, 2022, DHS announced an extension to the flexibility around the I-9 Form physical inspection requirements until October 31, 2022. DHS previously announced an extension to this flexibility through April 30, 2022. This means that, until October 31, 2022, employers can virtually inspect I-9 documentation for employees who work exclusively in a remote setting and who are hired on or after April 1, 2021. Employers should be aware that this temporary exemption from the physical inspection requirements only applies until employees undertake non-remote employment on a regular, consistent, or predictable basis, or the flexibility is terminated, whichever is earlier. Further, the in-person physical inspection requirement still applies to employees who physical report to work at a company location on any regular, consistent, or predictable basis.
Please note that the temporary flexibilities around the I-9 Form physical inspection requirements are separate from the DHS temporary policy on expired List B identity documentation. The temporary policy on expired List B identity documentation permitted employers to accept expired List B documentation between May 1, 2020 and April 30, 2022. This temporary policy is set to expire on May 1, 2022, meaning employers can only accept unexpired List B documentation after May 1, 2022.
On April 30, 2022, the temporary COVID-19 relief for I-9 identity documents will end. This means, beginning May 1st, employers must only accept unexpired List B identity documents required for Forms I-9. Further, certain employers who accepted expired documents between May 1, 2020 and April 30, 2022 will be required to update their Forms I-9 by July 31, 2022.
Though the COVID-19 relief for the physical inspection of I-9 documents has been extended until April 30, 2022, it is unclear at this time whether this relief “ends” on that date or will be extended past April 30th.
Background on I-9 Requirements and Temporary COVID Relief
The Department of Homeland Security (DHS) uses a standardized form (“Form I-9”) to verify the identity and legal authorization of employees to work in the U.S. During the I-9 process, employers must collect and physically examine documentation from an employee that demonstrates their legal status to work in the U.S. The documentation that can be used to verify eligibility in the I-9 process is referred to as “List B identity documents.”
Expired List B Identity Documents
During the COVID-19 pandemic, DHS recognized that employees may have difficulty renewing certain List B identity documents, such as a state driver’s license or state ID card, due to stay-at-home orders or online renewal restrictions. As such, DHS issued a temporary policy that permitted employers to accept List B identity documents that expired on or after March 1, 2020. DHS provided instructions on how employers should document if/when they accepted expired documentation.
DHS also recognized that employers may have difficulty reviewing the employee’s identity and employment authorization documents in the employee’s physical presence, as required. In response, on March 20, 2020, DHS announced that it would exercise prosecutorial discretion to defer the physical presence requirements associated with I-9 Forms and employers with employees taking physical proximity precautions due to COVID-19 would not be required to review I-9 documentation in person. DHS provided specific instructions for employers who took advantage of this relief.
On April 1, 2021, DHS took this relief a step further by only requiring employers to inspect employees’ Form I-9 identity and eligibility documentation in-person for employees who physically report to work at a company location on a regular, consistent, or predictable basis. As such, employers could remotely inspect I-9 documentation (e.g., over video link, fax, or email) for employees working remotely if certain requirements were met. This temporary exemption from the physical inspection requirements only applies until employees undertake non-remote employment on a regular, consistent, or predictable basis, or the flexibility is terminated by DHS, whichever is earlier.
It is important to note that this flexibility does not apply (and Form I-9 documents should be reviewed in person) if employees are physically present at a work location. Further, the temporary relief did not remove the requirement for employees and employers to meet the following normal timelines for I-9 completion:
- Section 1 of the form must be completed by the employee’s start date; and
- Section 2 must be completed within three business days of the start date.
For more information about this temporary policy, please visit our blog post, Extension of Temporary Policy for Virtual I-9 Verifications.
It is unclear at this time if and when this temporary policy for virtual I-9 verifications will come to an end and whether I-9s completed virtually during the pandemic will need to be updated with an in-person review. Employers should be on the lookout for announcements from the DHS with respect to this policy in the coming months.
End of Expired Documentation Relief and Updating Forms I-9
The relief for expired List B identity documents will end on April 30, 2022. This means, beginning May 1, 2022, employers must only accept unexpired List B documents. Further, if an employer accepted expired List B documents between May 1, 2020 and April 30, 2022, employers may be required to update their Forms I-9 by July 31, 2022, as outlined in the table below.
|If employee is no longer employed||No action is required|
|If the employee is still employed and the List B document was auto extended by the issuing authority (meaning that it was considered unexpired when presented to the employer)||No action is required because the document was considered unexpired when presented|
|If the employee is still employed and the List B document was not auto extended by the issuing authority||-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.|
-In the “Additional Information” field of Section 2, the employer enters the document:
-The employer initials and dates the change. See example.
Employers should be prepared to only accept unexpired List B identity documents beginning May 1, 2022. Employers who accepted an expired List B identity document between May 1, 2020 and April 30, 2022 from an employee that is still employed should ask the employee for unexpired List B documentation and update their applicable I-9 forms by July 31, 2022.
Employers should also be on the lookout for announcements from the DHS regarding when the virtual inspection relief will expire.
- COVID-19 Temporary Policy for List B Identity Documents
- Sequoia Foreword: Extension of Temporary Policy for Virtual I-9 Verifications
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