COVID-19 has caused unprecedented delays in the production of certain employment authorization documents. Both the DHS and ICE have continued with their department's flexibility relative to I-9 documentation and completion.
I-765 Approval Notices
In response to such delays, the USCIS is allowing employers to accept Form I-797, Notice of Action with a date on or after December 1, 2019 through August 1, 2020 to update Form I-9, Employment Eligibility Verification and show continued work authorization.
Prior to this announcement, the USCIS did not allow employers to accept the Form I-797 Notice of Action, which indicates an I-765, Application for Employment Authorization had been approved, for purposes of I-9 completion. Instead, employers could only accept a valid Employment Authorization card.
Employers seeking to take advantage of the I-9 flexibility must ensure the following:
- The I-797, Notice of Action must explicitly indicate it is an approval of an Application for Employment Authorization (Form I-765);
- If the first requirement is met, the I-797 can be listed as a List C document—specifically under item number seven.
This flexibility is valid only through December 1, 2020. Employers must also keep detailed records and update an employee I-9 once they receive their employment authorization cards. Employers should also be aware this flexibility does alter the employee's duty to establish his or her identity by presenting a document from with List A or List B.
Remote I-Completion Extended
ICE extended its May 19, 2020, guidance allowing remote completion of the Form I-9 for an additional 30 days. As a reminder, ICE has deferred the in-person review of original documents during the pandemic. The waiver only applies to offices that are operating remotely. Employers must promptly comply with their normal I-9 requirements as soon as employees return to the office. The remote completion authorization is set to expire on September 18, 2020.
