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DHS Rescinds COVID-19 Pandemic Related I-9 Policy Change
Mar 21, 2022

DHS Rescinds COVID-19 Pandemic Related I-9 Policy Change

Topics: Employee Hiring, Discipline & Termination, Immigration

The Department of Homeland Security (“DHS”) announced the end of a COVID-19 related temporary policy change regarding acceptable documents during the I-9 process for administration of the Immigration and Nationality Act’s prohibition against employment of unauthorized foreign nationals.  

Federal law requires employers to verify the identity and employment eligibility of all newly hired employees in the United States.  In the first three days of employment, employees present identity and employment authorization documents to their new employer.  The employer records the examination of these documents on Form I-9.  The documents must be valid and unexpired at the time of presentation.  However, on May 1, 2020, in response to the difficulty of renewing identity documents, DHS permitted employers to accept expired I-9 List B identity documents as evidence of identity. 

Beginning May 1, 2022, employers may no longer accept expired List B identity documents, such as a driver’s licenses or state-issued identification cards, in the onboarding process.  Additionally, employers must have any employees who presented expired List B documents between May 1, 2020 and April 30, 2022 revalidate their I-9 form and present an unexpired identity document.  Employees may present a valid unexpired document, a different valid List B document, or a List A document, such as a US passport or permanent (green) card.  No action is required for individuals who are no longer employed on May 1, 2022. 

Employers should review I-9s of employees hired in the past two years to look for expired identity documents, and obtain valid replacement identity documents.

Contact your favorite CDF employment attorney for assistance with this or other DHS temporary changes that may be coming.

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For over 25 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor in Chief

Sacramento Office Managing Partner and Chair of CDF’s Traditional Labor Law Practice Group. Mark has been practicing labor and employment law in California for thirty years. His practice has a special emphasis on the representation of California employers in union-management relations and handling federal and state court litigation and administrative matters triggered by all types of employment-related disputes. He is also adept at providing creative and practical legal advice to help minimize the risks inherent in employing workers in California. He recently named “Sacramento Lawyer of the Year” in Employment Law-Management for 2021 by Best Lawyers®.
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