DHS Eases Form I-9 Verification due to EAD Production Delays

Gibney Anthony & Flaherty, LLP
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The U.S. Department of Homeland Security (DHS) announced  temporary relaxation of a key Form I-9 compliance requirement as it pertains to individuals who require an  I-766, Employment Authorization Document (EAD) for employment.  Specifically,  DHS will permit employees to use a Form I-797, Notice of Action, as a Form I-9, List C document establishing employment eligibility if the Notice indicates approval of an Application for Employment Authorization and is dated on or after December  1, 2019 and through and including  August 20, 2020.

Typically an employee working pursuant to an EAD is  required to provide the actual card as a List C document to establish employment eligibility. However, there have been significant delays by USCIS in producing EAD cards after approval of applications.   The temporary relaxation of the requirement to present the EAD card as a List C document stems from litigation challenging USCIS card production delays.   As a result, an employee may now use the I-797 Notice in lieu of the EAD card as a Form I-9, List C document.

HOW DOES THIS IMPACT EMPLOYERS

  • For purposes of Form I-9 compliance, employers may accept the Form I-797, Notice of Action, described above as a Form I-9, Employment Eligibility, List C #7  document. This is true even though the I-797 Notice states  that it is not evidence of employment authorization.
  • The I-797 Notice must be dated between December 1, 2019 through and including August 20, 2020, and it must indicate that the Application for Employment  Authorization (I-765) has been approved.
  • Employers may use the I-797 Notice as evidence of a List C document and employment authorization  until December 1, 2020.
  • Employees must still present an acceptable Form I-9, List B document to establish identity.
  • Current employees who require reverification may also present the I-797 Notice  as proof of employment authorization under List C.
  • Employers must reverify employees who provided the I-797 Notice as a List C document by December 1, 2020.  At the time of reverification, employees may present their new EAD card or a different document from either List A or List C.

Gibney is  closely monitoring changes to employment eligibility verification policy and procedures and will provide updates as they become available. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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