Is an expired passport an acceptable document for an I-9?

Just as an expired U.S. passport won’t get you on a plane, such a document does not fly when an employee presents one for I-9 compliance. To successfully complete Form I-9 — also known as an Employment Eligibility Verification Form — an employer needs to receive an unexpired document. When a new employee presents a passport with an expiration date that has passed, the employer cannot consider it an acceptable document.

The government requires employers to fill out an I-9 form for each new hire. The I-9 confirms the identity and employment authorization of each employee. While I-9 forms are not filed with the federal government, authorized officials from the U.S. Department of Homeland Security (DHS), Department of Labor (DOL), or Department of Justice (DOJ) may request to see them. Thus, employers must be ready to produce accurate, complete I-9 forms that prove identity and legal work status.

How, then, should an employer handle cases of expired passports?

Draw attention to the matter prior to inspection

Filling out Form I-9 is a joint effort between the specific employer and its new hire. HR departments typically provide an I-9 form and instructions as part of a new employee’s onboarding paperwork. The new employee must complete Section 1: Employee Information and Attestation by his or her first day of employment. This section asks basic personal information, such as legal name, current address, and date of birth.

In the employee attestation portion of Section 1, he or she must check one of the following boxes about citizenship or immigration status:

1. A U.S. citizen,

2. A noncitizen national of the United States,

3. A lawful permanent resident (include Alien Registration Number/USCIS Number),

4. An alien authorized to work (include Alien Registration Number/USCIS Number or Form I-94 Admission Number or Foreign Passport Number and the Country of Issuance),

New employees need to be able to back up the information they input into Section 1 fields. To this end, they need to show their employer original documents from the lists of acceptable documents included with the form. Employers physically inspect the documents brought in, in order to complete Section 2 of Form I-9: Employer or Authorized Representative Review and Verification.

Many new hires will look at the list and notice that a U.S. passport fits the bill for proving both identification and work authorization. No doubt, it is a convenient choice — as long as it has not expired.

HR professionals can do everyone involved a favor by issuing a warning before someone brings in a passport for inspection. Include with the I-9 form an eye-catching statement telling new hires that a passport past its expiration date will be rejected, so please check the document prior to submitting it.

Some people may be under the impression that an expired passport is okay in light of the COVID-19 pandemic. Many simply may not have looked at their passport in quite some time because they have not traveled internationally in years. Others may not even realize a passport contains an expiration date and needs periodic renewal.

Ask for a different document choice

If an employee presents an expired passport, the employer has no choice but to decline it. Draw the person’s attention back to the list of acceptable documents, and request that he select an alternate method of fulfilling the obligation. Note that an employer must complete Section 2 of Form I-9 within three business days of the employee’s first day of employment. Smart employers do so sooner rather than later in the onboarding process in case a new hire must bring in different documents for inspection.

Explain that in terms of documents, compliance occurs in one of two ways:

• An employee presents ONE document from List A to establish both identity and employment authorization.

• An employee presents both ONE document from List B and ONE document from List C. List B documents are ones that establish identity. List C documents are ones that establish employment authorization.

You must let the person choose how to fulfill the requirement. Employers cannot express a preference for one method over the other, nor can they request which document(s) to bring in.

Also, note that U.S. Citizenship and Immigration Services (USCIS) states, “You must accept a receipt in place of a List A, B, or C document if the employee presents one, unless employment will last less than three business days.” The most common reason for a receipt is proof that the employee applied to replace a lost, stolen, or damaged document. Employers can find a full list of acceptable receipts for I-9 on the USCIS website.

Other List A documents

A valid U.S. passport or passport card is not the only List A option. According to uscis.gov, other unexpired documents suitable for establishing both identity and employment authorization are:

• Form I-551, Permanent Resident Card or Alien Registration Receipt Card (commonly called a Green Card). See Section 6.1, Lawful Permanent Residents for when a Permanent Resident Card is considered unexpired past the “Card Expires” date.

• Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa (MRIV)

• Form I-766, Employment Authorization Document (EAD) that contains a photograph. In certain circumstances, an EAD past its “Card Expires” date qualifies as an unexpired EAD. See Section 4.4, Automatic Extensions of Employment Authorization and/or Employment Authorization Documents (EADs) in Certain Circumstances, for more information.

• For nonimmigrant aliens authorized to work for a specific employer incident to status, which means they are authorized to be employed based on their nonimmigrant status, a foreign passport with Form I-94 bearing the same name as the passport and an endorsement of their nonimmigrant status, as long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the form

• Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI

List B documents and List C documents

New hires choosing this route must select one document option from List B and one option from List C.

List B (documents that establish identity)

Note that all documents must be unexpired. As of May 1, 2022, the DHS ended its temporary COVID-19-related policy of allowing employers to use expired List B identity documents for I-9 purposes.

1. Driver’s license or ID card issued by a state or outlying possession of the United States

2. ID card issued by federal, state, or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address (This selection does not include the driver’s license or ID card issued by a state or outlying possession of the United States in Item 1 of this list.)

3. School ID card with a photograph

4. Voter’s registration card

5. U.S. military card or draft record

6. Military dependent’s ID card

7. U.S. Coast Guard Merchant Mariner Card

8. Native American tribal document

9. Driver’s license issued by a Canadian government authority

For persons under age 18 who are unable to present a document listed above:

10. School record or report card

11. Clinic, doctor, or hospital record

12. Day care or nursery school record

LIST C (documents that establish employment authorization)

Again, all documents must be unexpired.

1. A Social Security Number Card, unless the Social Security Card includes one of the following restrictions:

   • NOT VALID FOR EMPLOYMENT

   • VALID FOR WORK ONLY WITH INS AUTHORIZATION

   • VALID FOR WORK ONLY WITH DHS AUTHORIZATION

2. Certification of report of birth issued by the U.S. Department of State (Forms DS-1350, FS-545, FS-240)

3. Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying territory of the United States bearing an official seal

4. Native American tribal document

5. Form I-197, U.S. Citizen Identification Card

6. Form I-179, Identification Card for Use of Resident Citizen in the United States

7. Employment authorization document issued by the Department of Homeland Security (examples given at uscis.gov/i-9-central)

Two other considerations

Especially since so many people work remotely nowadays, many companies use the option of appointing an authorized representative to act on their behalf to complete Section 2 instead of in-house staff verifying the documents. When selecting an outside party, however, be certain that individual knows not to accept an expired passport or another invalid document. Your organization assumes responsibility for the actions of its designated representative.

Sometimes, an employer needs to complete Form I-9’s Section 3: Reverification and Rehires. In situations in which you need to reverify a current employee or inspect actual documents again for someone rejoining the company, be certain to look at the expiration date when presented with a passport or other form of identification that can expire.

Additional information

HR reps and others who commonly perform document inspections for I-9 forms may benefit from information presented by the following:

• Handbook for Employers: Guidance for Completing Form I-9 (M-274)

• I-9 Central (especially helpful for the latest developments and changes)

• Form I-9 Acceptable Documents (great for visuals of what individual documents from Lists A, B, and C should look like)