Department of Homeland Security Updates 1-9 Compliance for Employers

The U.S. Department of Homeland Security is ending I-9 compliance flexibility, and has announced that expired employee identification is unacceptable after May 1, 2022.

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Homeland Security Updates 1-9 Compliance for Employers

The Department of Homeland Security (DHS) and the United States Citizenship and Immigration Services (USCIS) recently issued a reminder to businesses. The guidance informs business leaders the temporary waiver for expired I-9 Identification documents will end on May 1, 2022. This means businesses will need to check through all new and existing employee files to make sure I-9 Employment Eligibility Verification forms are current and documentation that verifies employment is not expired.

At the beginning of the COVID-19 pandemic, many state and federal offices were not open or experienced heavy delays due to reduced staffing. Secretary of State offices, immigration offices, and local authorities that normally issue driver’s licenses and other identification cards were inaccessible for Americans to renew existing documents or obtain new. For foreign nationals, the pandemic caused delays to update work visas, permits, or other employment documents. During this time, DHS waived the requirement that documents verifying identify and/or eligibility for employment must be current and unexpired.

Expired identification no longer acceptable

In April, DHS announced the waiver that made expired documents acceptable will end May 1, 2022. Employees must update expired identification and work authorization documents, and employers should verify them. This should happen for each current employee’s file by or around May 1.

In March 2020, DHS announced if an employee presented expired I-9 identification documents between May 2020 and April 30, 2022 the ID was acceptable due to government shutdowns. Effective May 1, 2022 that waiver ends. Employers will have until July 31, 2022 to verify current, unexpired documents and update I-9 Forms for any worker still in their employ. Employers do not have to update forms for separated staff members.

The I-9 form

A completed I-9 Form, issued by DHS, has been required for every employee in the U.S. since 1986. The form establishes each worker’s identity and eligibility to work legally in the U.S. It breaks down identity and eligibility into 3 categories: Lists A, B, and C.  These allow business to accept a variety of personal identification documents from the worker to establish their bona fides. All documents, except during the pandemic waiver period, must be current.

A completed I-9 Form, issued by DHS, has been required for every employee in the U.S. since 1986. The form establishes each worker’s identity and eligibility to work legally in the U.S.

Acceptable identification

The USCIS website provides information on what documents business can accept to verify identity and employment eligibility.  DHS has examples of what these documents should look like to help employers verify they are legitimate.

List A

List A verifies identity and employment eligibility. If an employee presents one of these documents, they do not need documents from List B and/or C.

These include but are not limited to:

  • U.S. Passport or Passport Card
  • Permanent Resident Alien Card or Alien Registration Receipt Card
  • Employment Authorization Document Card
  • Foreign passport with Form I-551 stamp or Form I-551 printed notation
  • Foreign passport with Form I-94/I-94A containing an endorsement to work

List B

List B verifies identity only. An employee who presents identification from List B must also present identification from List C.

These include but are not limited to:

  • Driver’s License
  • State issued Identification Card
  • School Identification Card with photo
  • Federal, state or local government ID that has a photo or name, address, date of birth, gender, height and eye color.
  • U.S. military card or draft record
  • Military dependent’s ID card

List C

List C verifies employment eligibility only. An employee who presents identification from List C must also present identification from List B.

These include but are not limited to:

  • Social Security card
  • Consular Report of Birth Abroad
  • Native American tribal document
  • US Citizen ID Card

As government offices continue to reopen, employees should be able to update their identification cards either remotely or in person. It will be important to look though all employee I-9 Forms to make sure the identification presented is current. Notify any worker with expired documentation they must renew and present their identification for review before the July 31, 2022 deadline.

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Virtual I-9 verifications update

Additionally, in response to pandemic hiring, in March 2020 the government announced it was suspending the requirement for employers to physically inspect any identification and eligibility documents. Employers were able to view new and existing employee identification remotely — online or with sent images.

U.S. Immigration and Customs Enforcement (ICE) recently issued a reminder to business about remote verification. As employees return to the workplace, employers should physically reinspect any remotely viewed identification. For employees who started their role remotely, or those who updated their identification or work authorization documents remotely, in-person review should occur as soon as the staffer returns.

USCIS has expressed an interest in continuing virtual I-9 verification. Advocates for continuing remote verification have lobbied the agency to do so. These groups expect a final decision in a Notice of Proposed Rulemaking in June, 2022.

The I-9 Identify and Employment Eligibility Form is an important tool for business. It assures employers the staff members they hire are legally able to work in the U.S. Employers should review all current employee I-9 forms and notify workers of any expired documents that need to be updated immediately.

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