In Absence of Explicit DHS Guidance, Accepting Electronic Forms of Identification for Form I-9 Purposes Is Unadvisable
Fort Lauderdale, Fla. (May 8, 2023) – The Form I-9 Employment Eligibility Verification process remains a primary component of onboarding new employees. As many states continue to move toward issuing digital or mobile equivalents to hard copy driver’s licenses and identification cards (mDLs), employers across the country are navigating the issue of whether they may accept mDLs as a List B document for Form I-9 purposes. To date, the U.S. Department of Homeland Security (DHS) has not explicitly determined that mDLs are accepted at the federal level for purposes of verifying an individual’s identity during the Form I-9 process. Accordingly, in the absence of clear guidance from DHS, it is unadvisable for employers to accept mDLs for this purpose.
It is important to note, however, that federal legislation concerning the use of mDLs in other contexts suggests that federal agencies will ultimately accept mDLs for Form 1-9 purposes in the future. For example, the REAL ID Modernization Act of 2020 included provisions concerning accepting mDLs for official purposes. Notably, following the passage of that law, DHS published a Request for Information in 2021 for public comments regarding minimum standards for digital driver’s licenses and identification cards that would render them acceptable for official purposes. It is expected that once this regulatory process concludes, federal agencies will accept compliant mDLs for purposes of the Form I-9 eligibility verification process as well as for other official purposes.
Although the issue of minimum requirements for official use of mDLs is not included in the Fall 2022 DHS regulatory agenda, a determination may be made concerning the matter before the REAL ID enforcement date of May 7, 2025 arrives. In the meantime, employers should not accept mDLs as a List B document. If a newly hired individual presents an mDL during the I-9 process, employers should ask the employee to produce an alternative document – one that is included on List B or List A of the Lists of Acceptable Documents of the Form I-9.
Marcela Gyires, Partner