Originally set to expire on April 30, flexibilities that the Department of Homeland Security (DHS) issued for its Form I-9 Physical Presence Requirement Flexibility has been extended until October 31, 2022. DHS made this announcement of the extension on April 25, 2022.
Form I-9 Physical Presence Requirement Flexibility
The physical presence flexibility announcement, originally issued on March 20, 2020, allowed employers to forgo the physical presence requirement associated with Employment Eligibility Verification under Section 274A of the Immigration and Nationality Act (INA).
Employers with employees taking physical proximity precautions due to COVID-19 were not required to review the employee’s identity and employment authorization documents in the employee’s physical presence. The department issued guidance as to steps that employers needed to follow in light of this flexibility announcement.
While it is anticipated that DHS will issue possible new rules that modify the Form I-9 process in June, employers should revert back to pre-COVID-19 policies and procedures for Form I-9 review and documentation.
COVID-19 Temporary Policy for List B Identity Documents
Beginning May 1, employers will also no longer be able to accept expired List B documents.
DHS adopted the temporary policy in response to the difficulties many individuals experienced with renewing documents during the COVID-19 pandemic. Now that document-issuing authorities have reopened and/or provided alternatives to in-person renewals, DHS will end this flexibility. Starting May 1, 2022, employers must only accept unexpired List B documents.
If an employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers are required to update their Forms I-9 by July 31, 2022. See table below for updated requirements:
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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: |
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Is still employed. |
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Is no longer employed. |
No action is required. |
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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. |
About Form I-9
Federal law requires that every employer who recruits, refers for a fee, or hires an individual for employment in the U.S. must complete Form I-9, Employment Eligibility Verification. All U.S. employers must properly complete Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. Both employees and employers (or authorized representatives of the employer) must complete the form.
More information about Form I-9.
*Update 7/16/22: Some of the dates mentioned in the article have been corrected.