COVID-19 Temporary Policy for Expired List B Identity Documents to End May 1st

The Department of Homeland Security (DHS) announced that it will end the COVID-19 temporary policy for List B identity documents that was previously implemented in response to the difficulty individuals were having with renewing documents during the COVID-19 pandemic. Starting May 1, 2022, employers can no longer accept expired List B documents and will be required to only accept unexpired List B documents.

Further, if an employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers are required to update their Forms I-9 by July 31, 2022. To update the Form I-9, USCIS has instructed employers to have the employee provide an unexpired document that establishes identity by presenting the renewed List B document, a different List B document, or a document from List A. Next, in the “Additional Information” field of Section 2, the employer must enter the document title, issuing authority, number, and expiration date, and must initial and date the change. Employers can refer to the following sample of an updated Form I-9 as per this guidance.

No Action is required if an individual is no longer employed and presented an expired List B document during the specified period above. Additionally, no action is required if the List B document was automatically extended by the issuing authority, so that it was unexpired when presented.

Form I-9 Physical Presence Requirement Flexibility Extended to October 31^st  

U.S. Immigration and Customs Enforcement (ICE) announced that it will once again extend Form I-9 flexibilities until October 31, 2022 (Effective May 1, 2022). The Form I-9 flexibility was previously extended through April 30, 2022.

The current extension will continue to apply to employees hired on or after April 1, 2021 and who work exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical in-person inspection requirements associated with Form I-9 until they undertake 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. Prior to April 1, 2021, the physical presence flexibilities did not apply if there were any amount employees physically present on-site.

Employer Responsibilities if Utilizing the Form I-9 Flexibility

Employers who are operating remotely due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must still inspect the Section 2 documents remotely over video link, fax, email, etc. and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2.  If reverification is required, Section 3 must be completed before the employee’s work authorization expires.

It is important to remember that the I-9 flexibilities allow employers operating remotely the option to postpone the physical presence inspection requirements. Therefore, after employers resume normal operations at their business, all employees who were on-boarded or re-verified using the remote verification option, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9. 

The following recommendations have been provided by DHS regarding how to notate Form I-9 when remotely inspecting employment authorization and identity documents, and how to perform the required physical inspection once normal business operations resume:

Completing Section 2 when inspecting documents remotely 

• Employers should enter “Remote inspection completed on XX/XX/XXXX” in the Section 2 Additional Information box. 

Performing physical in-person inspection once normal operations resume 

• If the person who performed the remote inspection also performs the physical inspection, the individual should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information box on the Form I-9. Once the documents have been physically inspected, the employer should add in the Section 2 Additional Information box “documents physically examined” with the date of physical inspection along with their initials. 
• If the physical inspection is performed by an individual who did not perform the remote inspection, the person who performs the physical inspection should indicate the date they examined the documents as well as their full name and title in the Section 2 Additional Information box. Note that employers in this situation also have the option to complete a new Section 2 of the form I-9 and attach it to the previous form I-9 used for remote inspection.

Notating remote and physical inspection for reverification

• Employers should make required notations for remote and subsequent physical inspections of reverifications in the Additional Information box in Section 2 as described above.

For examples, see: https://www.uscis.gov/i-9-central/form-i-9-examples-related-to-temporary-covid-19-policies

DHS is encouraging employers, at their discretion, to begin the in-person verification of identity and employment eligibility documentation for employees whose documents were inspected pursuant to the I-9 flexibilities. Specifically, employers who have been performing I-9 remote inspections may be burdened by the physical presence inspection requirement once normal business operations resume. At this time we do not know if DHS will allow for any leniency on the 3-day requirement for physical presence inspection once the flexibility ends.

Note that employers always have the option to designate or contract with someone such as a personnel officer, foreman, agent, or anyone else acting on the company’s behalf, including a notary public, to complete Section 2 or 3 in-person. Remember that anyone else who completes Form I-9 on the company’s behalf must carry out full Form I-9 responsibilities. Further, the company is liable for any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on your behalf. Therefore, if you decide to go this route, it is important to have detailed instructions for both the employee and authorized representative to ensure full I-9 compliance.  

By: Krystal Alanis 

Krystal Alanis is a Partner at Reddy Neumann Brown PC, Houston’s largest immigration law firm focused solely on U.S. employment-based immigration. She acts as the Managing Attorney for the firm’s PERM Labor Certification Department, where she oversees all EB-2 and EB-3 employment-based green card matters. She also guides employers and individuals through the I-140 and Adjustment of Status process, assists clients with non-immigrant visa petitions (e.g. H-1B, TN, L-1, etc.), and advises her clients on I-9 compliance issues.