Vedder Price

Vedder Thinking | Articles Form I-9 COVID-19 Flexibility Rules: Approaching Change & the Future of Remote Document Examination


Reader View

On May 1, 2022, the Department of Homeland Security (DHS) will end its temporary policy allowing employers to accept expired List B documents to complete Form I-9. DHS adopted the temporary policy in response to the difficulties and delay many individuals experienced renewing identity documents, such as a driver’s license, 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. 

In March 2020, DHS eased Form I-9 requirements regarding employers’ in-person inspection of physical documents. For employees hired on or after March 1, 2020, and working exclusively in a remote setting due to COVID-19-related precautions, employers are temporarily exempt from the physical inspection requirements associated with the Form I-9 until they undertake non-remote employment on a regular, consistent or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. Because of ongoing precautions related to COVID-19, DHS extended the Form I-9 requirement flexibility policy until April 30, 2022.

Given the continued prevalence of remote work, many employers would like to see the flexibility to review I-9 documents remotely made permanent. To this end, in October 2021, DHS invited public comments on its proposed extension and revisions to Form I-9. The comments were solicited to “better understand employers' and employees' experiences with this process and to examine the impacts of remote document examination conducted during the [COVID-19] pandemic. DHS especially seeks to understand the potential costs and benefits of allowing for future remote document examination flexibilities.” DHS recently extended the period for comments to May 31, 2022.  

So, while the flexibility allowing employers to accept expired List B documents to complete Form I-9 will end on April 30, 2022, the flexibility allowing for remote examination of I-9 documents, which is slated to end April 30, 2022, may be further extended.