Seyfarth Synopsis: E-Verify has offered guidance to employers to address concerns with expiring State Drivers’ Licenses and Identification Documents. The guidance, though, fails to address the situation where states have not granted temporary Driver’s Licenses or IDs extensions.

In response to queries sent by Seyfarth and other groups, E-Verify provided additional guidance addressing the COVID-19 National Emergency. We expect E-Verify to release a full  FAQ in the next week. Today’s guidance addresses the expiration of State Drivers’ Licenses and Identification Documents where employees are unable to renew these documents because of closures or limited services at Department of Motor Vehicles (DMVs).  In light of the National Emergency many states have extended the validity of these documents.Q.  Many states are extending the expiration date of state IDs and/or driver’s licenses. How should the extension be documented in Section 2?

A. If the employee’s state ID or driver’s license expired on or after March 1, 2020, and the document expiration date has been extended by their state due to COVID-19, then it is acceptable as a List B document for Form I-9. 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 the state motor vehicle department’s webpage or other notice indicating that their documents have been extended.

While employers will appreciate this guidance, it does not solve for the broader issue facing U.S. workers who reside in states where the DMVs have not extended the validity of State Drivers’ Licenses and Identification Documents. In this case, if a Driver’s License or ID has expired, and the employee is unable to present any other unexpired List A or List B document with a photograph, the person will be unable to work.

Remember, E-Verify participants are mandated, by the Memorandum of Understanding with E-Verify to only accept identification documents that contain a photograph.

We are confident that the U.S. Citizenship and Immigration Services (USCIS) is considering this conundrum.

What employers need right now is guidance that allows for an exception to the unexpired document mandate, in light of the COVID-19 National Emergency. For example, would USCIS allow employers to accept, during the National Emergency, an expired driver’s license or identification document, provided it expired during the month of March without an automatic extension granted by the state?

Prior E-Verify advice included instructions on Tentative Non Confirmations (TNCs) from E-Verify:

  • While E-Verify employers must still complete E-Verify for new employees within three business days of the hire date, DHS has released new guidance to extend the timeframe for employees to resolve certain Tentative Non-Confirmations (TNCs). This guidance provides employees more time to resolve TNCs because of the closure of Social Security and other public offices. Employers may not take any adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status.
  • More details are available here.

Remember, even for E-Verify employers, a new hire is able to commence employment without a SS Security number. E-Verify is aware of SS office closures.  Prior guidance from E-Verify states:

Q. My employee applied for a Social Security number (SSN) but has not yet received it. What should I do?

A. A case cannot be created in E-Verify without an SSN. If a newly hired employee has applied for, but has not yet received his or her SSN (e.g., the employee is a newly arrived immigrant), attach an explanation to the employee’s Form I-9 and set it aside. Then create a case in E-Verify using the employee’s SSN as soon as it is available. If you are unable to create a case by the third business day after the employee’s first day of employment, select Awaiting Social Security number when prompted by E-Verify.

Seyfarth will update you as soon as we hear more from E-Verify and post the full FAQs E-Verify has promised as soon as they are published.