E-Verify COVID-19 Accommodation: New Temporary Rule for I-9 Compliance

On May 1, 2020, the federal Department of Homeland Security (DHS) announced that expiring list B documents used for the purpose of validating an employee’s eligibility to work in the United States may be treated as if the employee provided a valid receipt for the document for I-9 purposes.

DHS reasoned that, “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, Employment Eligibility Verification, List B identity document. Considering these circumstances, DHS is issuing a temporary policy regarding expired List B identity documents used to complete Form I-9, Employment Eligibility Verification.”

When an employee provides an acceptable expired List B document that has not been extended by the issuing authority the employer should:

• Record the document information in Section 2 under List B, as applicable; and,
• Enter the word “COVID-19” in the Additional Information Field.

Within 90 days after DHS’s termination of this new temporary policy, the employee will be required to present a valid unexpired document to replace the expired document presented when they were initially hired. DHS indicated that it is best if the employee can present the replacement of the actual document that was expired, but if necessary, the employee may choose to present a different List A or List B document or documents and record the new document information in the Additional Information Field. 

DHS also indicated that when the employee later presents an unexpired document, the employer should:

• In the Section 2 Additional Information field:
  • Record the number and other required document information from the actual document presented;
  • Initial and date the change.

If the employee’s List B identity document expired on or after March 1, 2020, and the issuing authority has extended the document expiration date due to COVID-19, the document is acceptable as a List B document for Form I-9 (not as a receipt) during the extension time frame specified by the issuing authority.

When an employee provides an acceptable expired List B document that has been extended by the issuing authority, the employer 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 web page or other notice indicating that the issuing authority has extended the documents.  The Iowa Department of Transportation has indicated that if an employee’s driver’s license is expired or expiring, renewal is not required until May 27. This date may be extended. 

For extended documents, the employee is not required to later present a valid unexpired List B document.  E-Verify participating employers 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.

DHS indicated that it will provide updated guidance as needed. BrownWinick’s Employment Group is monitoring these and other compliance issues for employers.  

COVID-19 Resource Page

For updates on COVID-19 and new guidance provided by BrownWinick attorneys, please visit our COVID-19 Resource Page.