Due to COVID-19 and the issues that it presented to employees obtaining new, unexpired documentation in a timely manner, the Department of Homeland Security (DHS) implemented a temporary policy starting on May 1, 2020, that allowed employees to present expired List B documents to satisfy the Form I-9 documentation requirements. Now that document issuing authorities are returning back to more normal operations, or are offering alternatives to in-person renewals, the DHS has stated that, starting May 1, 2022, employers may no longer accept expired List B documents to fulfill Form I-9 documentation requirements.
In the same announcement from the DHS, the DHS has also set out guidelines for organizations to update any Form I-9s where expired documentation was accepted between the dates of May 1, 2020 and April 30, 2022. According to the DHS, these updates must be made by June 31, 2022. Per the DHS’ announcement, the following guidelines are to be followed if expired documentation was accepted during the aforementioned time period.
- If the employee’s Form I-9 was completed between May 1, 2020 and April 30, 2022 with an expired List B document and that document expired on or after March 1, 2020, and the employee is still employed, then the employer must:
- 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 of the Form I-9, the employer must enter the document:
- Title,
- issuing authority,
- number and
- expiration date.
- The employer must also initial and date the change.
- If the employee is no longer employed by the organization, no action is necessary. In addition, no action is required if a List B document was auto-extended by the issuing authority.
Under the same temporary policy that allowed organizations to accept expired List B documents, organizations may continue to review Form I-9 documents virtually, over video conferencing software, or by fax or email. This flexibility continues until an employee undertakes non-remote employment on a regular, consistent, or predictable basis, or until the policy is terminated by the DHS. This flexibility has been continued until at least April 30, 2022; however, the DHS has not commented on whether or not they will allow this flexibility to continue beyond this date. Many organizations have requested that the DHS continue this policy indefinitely due to the fact that remote work continues to play an important role in the workplace, even as organizations return to more normal operations.
As all organizations should remember, the organization is ultimately responsible for any and all mistakes and/or violations that are made in the Form I-9 process and on the Form I-9 itself. It is important to not only audit those Form I-9s in which expired documentation was accepted, but all Form I-9s on an annual basis, at a minimum. The range of possible penalties regularly increases and is currently at $234 to $2,322 per Form I-9 for the first offense, for substantive violations or uncorrected technical errors. Fines go up for the second offense and subsequent violations. With this in mind, it truly does pay off to ensure that your organization’s Form I-9s are audited regularly and are in compliance. This includes ensuring that all Form I-9s that have expired documentation received from May 1, 2020 through April 30, 2022, are updated by June 31, 2022.
For additional information on Form I-9 compliance, please contact us at www.NewFocusHR.com
Written By: Patrick McKenna, SHRM-CP
HR Consultant
April 4, 2022
