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Update on I-9 Electronic Documents

The American Immigration Lawyers’ Association has issued one of its frequent updates on which documents are acceptable for I-9 compliance.  This article addresses recent issues with Employer Compliance and will be of interest to employers that use an electronic system as opposed to a hard copy system.

AILA Doc. No. 23042000 | Dated April 20, 2023

By AILA’s Verification and Documentation Liaison Committee

Although technological advancement moves forward at a continual and rapid pace, the Form I-9 Employment Eligibility Verification process remains in some respects in the “dark ages.†States such as Arizona, Colorado, Louisiana, and Maryland have already issued digital or mobile equivalents to physical driver’s licenses or identification cards (collectively called mDLs). With many states moving towards state-issued mDLs, the question arises as to whether employers can accept mDLs as a List B document when completing Form I-9.

At this time, the short answer to that question is that we recommend against accepting mDLs, as DHS has not explicitly confirmed that mDLs are federally accepted for purposes of verifying an individual’s identity in connection with the Form I-9 process.

Despite the lack of definitive guidance from DHS on this issue, there has been significant progress by the federal government toward determining minimum standards for the use of mDLs. Specifically, Congress passed the REAL ID Modernization Act of 2020, which included provisions on accepting information provided by mDLs for official purposes. DHS subsequently published a Request for Information (RFI) on April 19, 2021, for public comments on the minimum standards for digital driver’s licenses and identification cards acceptable by federal agencies for official purposes. Once this regulatory process has been completed and standards confirmed, it is expected that federal agencies will be able to accept compliant mDLs for official purposes, including for purposes of complying with Form I-9 documentary requirements.

At this time, there is no anticipated date for establishing the minimum requirements for official use of mDLs, and the issue is not included in the Fall 2022 DHS regulatory agenda. We are hopeful that a determination will be made on this issue before the current REAL ID enforcement date of May 7, 2025.

Until DHS determines the minimum requirements for use of mDLs, we strongly recommend advising clients that an mDL is not an acceptable List B document and, if a newly hired employee should present an mDL as part of the Form I-9 process, we recommend that employers ask the employee to provide an acceptable List B or List A document(s) as referenced in the Lists of Acceptable Documents of the Form I-9 (or referenced in the M-274 Handbook and/or I-9 Central as new versions of documents are provided by USCIS).