USCIS Temporarily Relaxes I-9 Requirements for State Driver’s Licenses and Identification Cards

As the COVID-19 pandemic has forced companies and employees to adjust to new work arrangements, the United States Citizenship and Immigration Services (USCIS) has also reacted by temporarily relaxing a few of the I-9 verification requirements. For instance, on March 20, 2020, the agency relaxed the requirement to conduct verification with employees in person, and for a 60-day period is allowing companies to conduct virtual I-9 verification with employees working remotely due to COVID-19 restrictions.

On May 1, 2020, USCIS announced that it is also relaxing the requirement that state driver’s licenses and identification cards be unexpired when presented as a List B document for I-9 verification. Recall that the standard requirement is that employees may only present unexpired documents, although the I-9 rules provide a few exceptions for specific categories of work permit cards that may qualify for an automatic 180-day extension in certain circumstances.

With state department of motor vehicles (DMV) offices across the country remaining closed to the public during the COVID-19 pandemic, USCIS has recognized that individuals may find it difficult or impossible to renew or apply for new driver’s licenses or state identification cards, particularly when a DMV office requires in-person applications. Several states have automatically extended the validity of those documents, but other states have yet to follow suit.

In late March 2020, the Department of Homeland Security (DHS) had already informally stated that if a new hire’s state identification card or driver’s license had expired on or after March 1, 2020, and that state had auto-extended the document’s validity due to COVID-19, the expired document may be accepted as a List B document. The company should then enter the document’s actual expiration date in Section 2 and enter “COVID-19 EXT” in the Additional Information field in Section 2. Employers may also attach a copy of the state DMV’s webpage or other public notice indicating that the documents have been extended. The employer will not need to take any further actions regarding those auto-extended List B documents.

With this May 1, 2020, announcement, USCIS has not only officially confirmed this temporary policy on auto-extended state documents, but has now gone a bit further in relaxing the rules. USCIS states that any state-issued List B identity document set to expire on or after March 1, 2020, and not otherwise extended by a state’s issuing authority, may be treated as if the employee presented a valid receipt for an acceptable I-9 document. In essence, where a state has not auto-extended the validity of the expired document, or an earlier auto-extension has since expired, employees may now present those expired List B documents as a receipt for an application to replace the documents. The company will then need to follow-up with the employee within 90 days after USCIS terminates this temporary policy and request an unexpired identity document.

When a new hire presents an expired List B document that has not been auto-extended by the state issuing authority, the USICS announcement instructs employers to record the document information in Section 2 under List B, as usual, and then enter the word “COVID-19” in the Additional Information field in Section 2. Once USCIS ends this temporary policy, the employee must then present a valid unexpired List B document (preferably the replacement for the expired document initially presented) or a List A document within 90 days. The employer needs to record the document number and any other required data about the new document in the Additional Information field in Section 2, and initial and date the edit.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to the policy changes and will post updates on the Immigration Blog and in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar programs.