Form I-9 Update: Employees Can Use Form I-797 Due To COVID-19 EAD Production Delays

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The production of certain Employment Authorization Documents (EAD) have been delayed due to to COVID-19.  Today, USCIS announced that due to these production delays, employees may use Form I-797, Notice of Action, with a Notice date on or after December 1, 2019 through and including August 20, 2020 for Form I-9 employment eligibility verification purposes.  Specifically, employees may present Form I-797 informing the applicant of approval of an Application for Employment Authorization (Form I-765) for purposes of satisfying Form I-9, List C #7 as a document that establishes employment authorization issued by the Department of Homeland Security.   This is allowed during the specified time period even though the applicant’s Form I-797 Notice of Action states it is not evidence of employment authorization.  Employees may present their Form I-797 Notice of Action showing approval of their I-765 application as a Form I-9 List C document through December 1, 2020.

Employers and employees should note the I-797 Notice of Action does not serve as a Form I-9 List A document (a document establishing both identity and employment authorization) OR a Form I-9 List B document (a document establishing identity).   For new hire scenarios, an employee who presents a Form I-797 Notice of Action described above must also present a valid List B document.  For existing employees requiring reverification, the employee may present Form I-797 Notice of Action described above for List C purposes.

By December 1, 2020, employers must reverify employees who presented Form I-797 Notice of Action as a List C document.  This means these employees will need to present the employer with new evidence of employment authorization consistent with the Form I-9 List of Acceptable Documents from List A or List C.  It is the employees’ choice whether to present their new EAD or a different document from List A or List C.

Employers are reminded to maintain Form I-9 compliance throughout the COVID-19 public health emergency.

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