Accepting Expired Documents for Form I-9

It is commonly believed that identification documents presented by the new hire to complete Section 2 of “Form I-9, Employment Eligibility Verification,” must be unexpired as of the employee’s first day of employment. This is a misunderstanding that could cause the employer to reject a valid and acceptable document, which could in turn lead to a claim of employment discrimination and/or document abuse.

On what date must an identification document be unexpired to be acceptable for Form I-9?

There are numerous references to expiration dates in the USCIS guidance regarding document expiration dates. For example, the Form I-9 instructions include the following references:

  • To the employee: “Choose which unexpired document(s) to present to your employer…”
  • To the employer: “You… must physically examine… the unexpired document(s) the employee presents…”
  • “All documents must be unexpired.”
  • “The (List A) document is not acceptable if it has already expired.”
  • “The (List B) document is not acceptable if it has already expired.”

All references to the requirement that an identification document be unexpired, both in the printed instructions and other resources online, require that the ID document be unexpired when presented. For the employer, the document cannot be accepted if it is expired. There is no rule that states that the ID must be unexpired as of any specific date; much less the first day of employment. The only date reference is to the day on which the document is presented by the employee and accepted by the employer.

It actually makes a lot of sense that a document must be unexpired on the day that the form is completed. The completion of Form I-9 is the act of verifying that the new hire is eligible to work in the U.S.  No matter when it happens, the employer must verify the new hire’s eligibility by viewing unexpired documents. The act of verifying the new hire can occur any time after the candidate has been offered and has accepted the position, even if well before the start date. His/her eligibility must be verified no later than three days after the start date. But whenever the act of verifying the employee’s eligibility occurs, the verification must be completed with unexpired documents.

Once a U.S. citizen, Permanent Resident, or non-citizen national is verified by completing Section 2 of Form I-9, their employment eligibility doesn’t expire with the ID document. As long as the ID document is acceptable for the act of verifying (completing the form), it doesn’t matter when it expires; even if before the start date. Only non-citizens‘ work eligibility is tied to an expiration date on a document; the non-citizen’s document must be unexpired on every day of employment, including the start date. (Ignore automatic extensions for now!)

An ID document can be expired on the first day of employment, therefore, as long as the employer has already verified the new hire’s eligibility. Conversely, the document must be unexpired when it is presented and accepted for Form I-9 on any day after the first day of employment. It doesn’t matter if the document was unexpired on the start date; it must be unexpired on the date on which the employer verifies the new hire’s work eligibility, even if up to three days after the start date.

Employers who reject valid identification documents violate not only I-9 rules but, under some circumstances the Immigration and Nationality Act (INA). Employers who engage in discriminatory practices related to Form I-9 and ID documents can be required to pay civil penalties and back pay to affected employees; train personnel on the INA’s requirements; review employment policies; and be subject to monitoring by the Justice Department.

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