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USCIS Announces New Temporary Policy for Expired Form I-9 List B Identity Documents

The United States Citizenship and Immigration Services (USCIS) has announced yet another “temporary” Form I-9 policy in the wake of the continuing COVID-19 pandemic. In an email sent to stakeholders last Friday, May 1, the USCIS noted that newly hired employees may experience challenges renewing their state driver’s licenses, state ID cards, or other identity documents as a result of the COVID-19 stay-at-home orders and DMV online renewal service restrictions.

Therefore, beginning on May 1, List B identity documents set to expire on or after March 1, 2020, and not otherwise extended by the state’s issuing authority, may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes.

But wait a minute, you say. Didn’t they already do this? I thought employers have been able to accept expired driver’s licenses and state IDs pursuant to some earlier COVID-19 policy? You are correct! We actually covered this announcement in detail here.

Here’s the distinction (and the reason for the new policy). Per the earlier announcement, employers are in fact permitted to accepted expired driver’s licenses and state IDs with an expiration date after March 1, 2020 so long as the state (i.e., the issuing authority) has formally extended the expiration date. This policy remains the same.

What’s new is that if the state has not extended the expiration date, or perhaps that extension has run out, employers may now accept and treat these expired identity documents as receipts, which require follow-up for a replacement document within 90 days after the USCIS’ temporary policy has been terminated.

Here’s how it works:

Initial I-9 Completion

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.

Then, within 90 days after DHS’s termination of this temporary policy, you must ask the employee to present a valid unexpired document to replace the expired document presented when they were initially hired.

The USCIS notes that it’s “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. If different documents are presented, employers are instructed to record the new document information in the Additional Information Field.

Updating the I-9

When the employee later presents an unexpired document, the employer should do the following 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.

Expired List B document that has been extended by the issuing authority

The USCIS’ latest announcement also reminds employers of the proper procedure for annotating an I-9 when an expired List B document has in fact been extended by the state issuing authority. As before, employers are instructed to do the following:

  • 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 a webpage or other notice indicating that the issuing authority has extended the documents.  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 Vehicles’ website.
  • Note:  For extended documents, the employee is not required to later present a valid unexpired List B document. 

Flowcharting the Process

Some of these new “temporary” policies can make your head spin, so sometimes it’s best to “flowchart” the process. Below is a quick diagram which should hopefully illustrate the above.

Impact on E-Verify

[5/7/20 Update: in response to our inquiry, the USCIS clarified the E-Verify process for expired List B documents that have not been auto-extended by a state issuing authority.] Specifically, employers should treat these documents as a “receipt” for E-Verify purposes, and hold off on creating an E-Verify case until after the replacement document has been received. This process mirrors the E-Verify protocol when accepting receipts that have been lost, stolen, or damaged.

As a reminder though, if your newly hired employee presents an expired List B document that has been auto-extended by a state issuing authority, you are expected to create an E-Verify case as usual within three days of the date of hire.

Last but not least, E-Verify participating employers should continue to 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.

About John Fay

John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as President at the LawLogix division of Hyland Software, Inc., where he oversees all aspects of the division’s operations and provides strategic leadership and direction in the development and support of Form I-9, E-Verify, and immigration case management software solutions.

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