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05.14.20

COVID-19 temporary List B document policy for I-9 purposes

BY Jason Gerrol

The Form I-9, Employment Eligibility Verification, process requires all new employees to present to his or her employer acceptable document(s) verifying his or her identity and employment authorization. As a general rule, those documents cannot be expired.

However, in light of COVID-19 stay-at-home orders and similar, some employees may encounter challenges when attempting to renew an acceptable List B identity document, such as a driver's license. In response to this challenge, the Department of Homeland Security (DHS) is implementing a temporary policy whereby an identity document found in List B, and set to expire on or after March 1, 2020, and not otherwise auto-extended by the issuing agency, may be treated as a receipt for an acceptable List B document.

In the event an employee presents a List B document that expired on or after March 1, 2020, the employer may record that document in Section 2 of the Form I-9, and enter "COVID-19" in the additional information field.

Within 90 days of DHS's termination of this temporary policy, the employee must present an unexpired List B document, to replace the expired document presented at the time of hire. At that time, employers should record in the Section 2 Additional Information field the document number and other required information from the new unexpired document.

In the event the employee presents a List B identity document set to expire on or after March 1, 2020, but that document has been auto-extended by the issuing agency due to COVID-19, an employer need not treat that document as a receipt. Rather, an employer may treat that as an acceptable List B document, and the employee is not required to present an unexpired document at a later time. An employer may want to attach to the Form I-9 a copy of the notice from the issuing agency (e.g., the Department of Motor Vehicles) regarding the auto-extension.

Employers participating in E-Verify may use the employee's expired List B document to create an E-Verify case within three days of the date of hire.

This DHS policy supplements a prior DHS notice relaxing the requirement that an employer must physically examine original documents in the physical presence of the employee, and instead allowing the employer to conduct the inspection of documents remotely (e.g., by video, fax, or email) and not in the employee's presence. These relaxed requirements were implemented for a period of 60 days from the announcement date of March 20, 2020, or three business days after the end of the National Emergency declaration, whichever comes first.

Employers availing themselves of these relaxed and temporary I-9 requirements, either the remote inspection policy or expired List B document policy, should be sure to read the relevant DHS notice(s) carefully to ensure full compliance, and to ensure any deadlines for taking further action are not missed.

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Author

Jason Gerrol

Of Counsel

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