Department of Homeland Security (DHS), I-9 and REAL ID Policies

Last Updated

September 22, 2021

Topics

  • I-9 Policy:
    • List B: DHS has announced that, Form I-9 identity documents found in List B set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes. DHS has issued special instructions for how employers should fill out form I-9 if this policy is utilized, and when an employee must submit an updated or replacement List B document after this temporary policy ends. Any concerned practitioners or employers should review the announcement in full for details.
    • EADs: Due to delays in producing EADs during the COVID-19 pandemic, employees were previously authorized to use Form I-797 Notice of Action with a date on or after Dec. 1, 2019, through and including Aug. 20, 2020, informing an applicant of approval of an Application for Employment Authorization as a Form I-9 Employment Eligibility Verification, List C #7 document, even though the Notice states otherwise. The last day that employees were authorized to present this notice to complete Form I-9 was Feb. 1, 2021. There has not been an extension of this policy.
    • In-person Inspection: DHS and ICE announced flexibility in complying with requirements related inspecting forms in-person for to Form I-9, Employment Eligibility Verification, due to COVID-19. This temporary policy was set to expire on Dec. 31, 2020, but was subsequently extended until Jan. 31, 2021, then March 31, 2021, and again until Aug. 31, 2021. On Aug. 31, 2021, the policy was further extended until Dec. 31, 2021. See the latest extension announcement here.
  • REAL ID: On March 26, 2020, DHS announced the extension of the REAL ID enforcement deadline beyond the current Oct. 1, 2020, deadline until Oct. 1, 2021. DHS has subsequently provided another 19-month delay and the new deadline for REAL ID enforcement is May 3, 2023. An interim rule was published in the Federal Register on May 3, 2021.

CLINIC Affiliates: If you are a CLINIC Affiliate and need assistance resolving issues in a case, please contact our Training and Legal Support team by submitting a question to Ask the Experts at cliniclegal.org/find-legal-help/ask-experts. If you have exhausted your case resolution options for a pending case you can also contact our Advocacy team at advocacy@cliniclegal.org. You can also contact advocacy if you are encountering issues in your practice that are not addressed by measures taken by federal agencies.