Employers May Now Accept Expired List B Documents for Form I-9

​U.S. Citizenship and Immigration Services (USCIS) announced May 1 that employers may accept expired List B identity verification documents from new hires when completing I-9 forms.

"List B documents are identity documents for I-9 purposes—for example, a common List B document is a driver's license," said Jorge Lopez, an attorney in the Miami office and chair of the Global Mobility and Immigration Practice Group at Littler.

"Because many areas are under stay-at-home orders due to COVID-19 and some online renewal services have restrictions, employees may experience challenges renewing a state driver's license, a state ID card, or other Form I-9 List B identity document," the agency said.

The temporary policy, effective immediately, allows List B identity documents that expired on or after March 1, 2020, to be valid, acceptable documents for Form I-9 purposes.

"This exception applies only if the document expired on or after March 1 and the issuing agency has not auto-extended the document," said Suzan Kern, an immigration lawyer in the Washington, D.C., office of Hunton Andrews Kurth. "Some expired documents, including driver's licenses in many states, have been automatically extended by the issuing agency under COVID-19 rules. Employers may accept these auto‑extended documents as currently valid for I-9 identity verification."

USCIS instructed that when an employee provides an acceptable, expired List B document that has not been extended, HR should:

• Record the document information in Section 2 under List B.
• Enter the word "COVID-19" in the additional information field.

After the termination of the temporary policy, workers will be required to present a valid, unexpired document to replace the expired document. The agency noted that it is best if the employee can present a replacement of the actual document that was expired but he or she may choose to present a different List A or List B document or documents.

"When the employee later presents an unexpired document, you should record the number and other required document information in the Section 2 additional information field and initial and date the change," Lopez said. He added that employers using E-Verify 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.

Julie Pearl, founder and CEO of Pearl Immigration, a law firm and immigration technology company in San Francisco, said another option may be to use one of the acceptable alternative forms of ID on List B instead of an expired one to prevent mistakes being made with documentation or forgetting to follow up later.

If a new hire provides an expired List B document that has been extended due to COVID-19, HR 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 a webpage or other notice from the state Department of Motor Vehicles, for example, indicating that the expiration date for the document has been extended.

Employees are not required to later present a renewed List B document if they have been extended, Kern said. These documents "are valid on presentation and should not be reverified."

Confusion Around Remote Verification

Lopez said employers that are operating completely remotely may follow the March 20 Department of Homeland Security guidance that deferred the requirements for employers to review Form I-9 documents in person with new employees.

Pearl said she's seeing confusion among employers about the guidance, inefficiencies and mistakes, and bad ideas from employers trying to verify their new employees remotely. She said the most dangerous thing happening is companies asking their new hires to mail completed I-9s through the post office or FedEx, which could easily result in forms with critical personal information being lost or falling into the wrong hands.

Pearl recommended that employers follow the "tried-and-true method of using an authorized representative, which can be just about anyone," instead of the temporary method outlined in the guidance that asks employers to inspect documents remotely over videoconferencing or e-mail and then remember to verify the physical documents once normal operations resume.

An electronic I-9 system can guide the authorized representative (AR)—a friend or neighbor—through the verification process. "The system sends a link to the employee to fill out Section 1 and asks the employee or enables HR to enter the name and e-mail address of an authorized representative, which can be a friend, neighbor, or anyone with a smartphone and five minutes to spare," she said.

The new hire and AR would then arrange to meet somewhere—keeping six feet away from one another per social-distancing guidelines—and the AR would examine the documents and complete Section 2 of the I-9 via the secure link they were e-mailed. The information and photographs of any document go directly into the system, so no personal information is stored on the AR's device. The employer is notified online that Section 2 has been completed.

"Another option for those without an electronic I-9 system is to use the company's existing Dropbox, Box or Microsoft SharePoint account that enables HR to send a secure link to the employee, who can then safely upload the completed document [after meeting with an AR to complete Section 2] rather than sending it physically," Pearl said.

Employers must use the latest version of the form (dated 10/21/2019) for all new hires and reverifications beginning May 1. Prior versions can no longer be used.

USCIS has also updated its Handbook for Employers to include additional information and clarification on properly completing the Form I-9.