The U.S. Department of Homeland Security has announced new guidance for Form I-9 completion, including implementing a temporary policy for acceptance of List B expired documents in response to the COVID-19 pandemic. List B documents are identity documents for I-9 purposes. For example, a common list B document is a driver's license. Beginning on May 1, identity documents found in List B set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes. If an employee's state ID or driver's license expired on or after March 1, 2020, and the state has extended the document expiration date due to COVID-19, then it is acceptable as a List B document for Form I-9.

Because many areas are under stay-at-home orders due to COVID-19 and some online renewal services have restrictions, DHS recognizes that employees may experience challenges renewing a state driver's license, a state ID card, or other List B identity document. Specifically, DHS instructs as follows for states that have not yet auto-extended expiring List B documents:

When your employee provides an acceptable expired List B document that has not been extended by the issuing authority you should:

• Record the document information in Section 2 under List B, as applicable; and
• Enter the word "COVID-19" in the Additional Information Field.

Within 90 days after DHS's termination of the temporary policy, the employee will be required to present a valid unexpired document to replace the expired document presented when they were initially hired. DHS notes that "[i]t is best if the employee can 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 record the new document information in the Additional Information Field." DHS instructs as follows for follow-up presentation:

When the employee later presents an unexpired document, you should:

In the Section 2 Additional Information Field:
• Record the number and other required document information from the actual document presented;
• Initial and date the change.

If the employee's state ID or driver's license expired on or after March 1, 2020, and the state has extended the document expiration date due to COVID-19, then it is acceptable as a List B document for Form I-9. DHS instructs the following for states that have auto-extended expiring List B identity documents:

When your employee provides an acceptable expired List B document that has been extended by the issuing authority you should:

• Enter the document's expiration date in Section 2; and
• Enter "COVID-19 EXT" in the Additional Information field.
• Employers may also attach a copy of the state motor vehicle department's webpage or other notice indicating that their documents have been extended. Employers can confirm that their state has auto-extended the expiration date of state IDs and driver's licenses by checking the state Motor Vehicle Administration or Department of Motor Vehicle's website.

For extended documents, the employee is not required to later present a valid unexpired List B document.

Please note the annotation difference between the treatment of the List B documents as a receipt for an acceptable document and when a state automatically extends the expiration date.

DHS also notes that E-Verify-participating employers should use the employee's expired List B document number from Section 2 of the Form I-9 to create an E-Verify case as usual within three days of the date of hire. USCIS has noted in its I-9 Central Questions and Answers that "[i]f a state has automatically extended the employee's driver's license due to COVID-19, employers should enter the actual expiration date as printed on the employee's document when creating the E-Verify case."

Employers should maintain awareness of how this may impact new employees to utilize these new guidelines as needed, particularly with regard to employees with expiring driver's licenses. Employees who choose to present a List B document must also present a document from List C for Section 2. Employers and workplaces that are operating remotely may follow the March 20, 2020 DHS news release that announced flexibility in requirements related to Form I-9.¹

As a reminder, the list of acceptable List B documents can be found on Form I-9 (Page 3) and in Section 12.0 of the M-274 Employer Handbook and includes the following:

• Driver's license or identification card issued by a state or outlying territory of the U.S., provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address;
• ID card issued by federal, state or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address;
• School ID card with a photograph;
• Voter registration card;
• U.S. military card or draft record;
• Military dependent's ID card;
• U.S. Coast Guard Merchant Mariner Document (MMD) card;
• Native American tribal document;
• Driver's license issued by a Canadian government authority.

Please note that DHS has not relaxed or extended the three-day requirement for completing a Form I-9. The employee must still complete Section 1 no later than the first day of employment. As a reminder to all employers, the new Form I-9 (version 10/21/2019), became mandatory on May 1, 2020 and prior versions can no longer be used.

We continue to monitor impact of COVID-19 on Form I-9 policy and verification guidelines and will provide updated guidance as needed.

Posted: May 4, 2020

¹ If employers are performing inspections remotely (e.g., over video link, fax or email, etc.) they must obtain, inspect, and retain copies of the Section 2 documents within three business day of hire. In addition to completing Section 2, employers also should enter "COVID-19" in the Additional Information field. A physical inspection must take place after normal operations resume. The date of the physical inspection and who conducted it should also be recorded in the Additional Information field.

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