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DHS to End Temporary Policy Allowing Expired List B Documents
The Department of Homeland Security (DHS) has announced that it will terminate its temporary policy for expired List B documents on May 1, 2022. As you may recall, this temporary policy was put in place in response to the COVID-19 pandemic and the resulting difficulties employees faced with identity document renewals, as required by Form I-9. Since most document-issuing authorities have reopened or now offer adequate alternatives to in-person renewals, DHS has decided to end this flexibility.
Accordingly, beginning May 1, employers will be required to accept only unexpired List B identity documents. Also, employers will be required to update by July 31, 2022 any I-9 Forms completed by employees between May 1, 2020 and April 30, 2022 with expired List B documents, which were not formally extended by their issuing authority. The below chart prepared by U.S Citizenship and Immigration Services (USCIS) summarizes these updated requirements:
| 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: | Then: |
| Is still employed. | 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, the employer enters the document: Title; Issuing authority; Number; and Expiration date. The employer initials and dates the change. See Form I‑9 example. |
| Is no longer employed. | No action is required. |
| The List B document was auto extended by the issuing authority, so it was unexpired when presented. | No action is required because the document was unexpired when presented. |
| 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: | Then: |
| Is still employed. | 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, the employer enters the document: Title; Issuing authority; Number; and Expiration date. The employer initials and dates the change. See Form I‑9 example. |
| Is no longer employed. | No action is required. |
| The List B document was auto extended by the issuing authority, so it was unexpired when presented. | No action is required because the document was unexpired when presented. |
| 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: | Then: |
| Is still employed. | 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, the employer enters the document: Title; Issuing authority; Number; and Expiration date. The employer initials and dates the change. See Form I‑9 example. |
| Is no longer employed. | No action is required. |
| The List B document was auto extended by the issuing authority, so it was unexpired when presented. | No action is required because the document was unexpired when presented. |
Lorna Hebert [email protected] (617) 512-8401
Trish Lantzy [email protected] (804) 683-1737
Margaret Scheele [email protected] (703) 408-4718
Lorna Hebert (New England team) is an employment, labor, higher education, and litigation attorney with nearly 30 years of experience handling a broad range of complex employment and labor matters. Lorna advises clients on a wide range of employment matters, including workplace investigations, dispute resolution, hiring, performance management, discipline, terminations, reorganizations, accommodations, employee benefits, wage and hour issues, discrimination claims, policies and procedures, and training.
Patricia Lantzy (Washington D.C. team) is a labor and employment attorney with almost 30 years of experience. Trish works with a wide range of clients, from individual executives and small businesses to the Fortune 500, on employment-related issues across the employee lifecycle, including recruiting, hiring, workplace harmony and leave issues, performance and discipline/discharge, corporate reorganizations and reductions in force.
Margaret Scheele (Washington D.C. team) is an employment law attorney with almost 30 years of experience. Margaret has represented a range of clients in a variety of industries, including aviation, food service, telecommunications, health care, and government contracting. Her practice includes the full range of advice and counseling work that arises within the employment context, including most recently COVID-related matters.
This publication should not be construed as legal advice or a legal opinion on any specific facts or circumstances not an offer to represent you. It is not intended to create, and receipt does not constitute, an attorney-client relationship. The contents are intended for general informational purposes only, and you are urged to consult your attorney concerning any particular situation and any specific legal questions you may have. Pursuant to applicable rules of professional conduct, portions of this publication may constitute Attorney Advertising.