Processing Delays Create Need to Extend Validity of Certain Expired Green Cards

Seyfarth Shaw LLP

[co-author: Zachary Perez]

In response to continued lengthy processing delays, the United States Citizenship and Immigration Services (USCIS) posted guidance in early September offering an extension to the time certain processing receipts (Form I-797) may be used as evidence of lawful status, for conditional permanent residents that have pending applications. Conditional permanent resident status is granted for a two-year period of time to individuals that received their status through marrying a U.S. citizen, or through job creation and investment via the EB-5 program. Dependent children can also receive such conditional resident status.  In order to remove the restricted conditions on their residency, these residents must file Form I-751 or Form I-829 petitions to prove they have fulfilled the necessary requirements.

This USCIS announcement has Form I-9 implications for employers.

How do I Complete the Form I-9 using the Expired Green Card?

USCIS has begun issuing I-797, Notice of Action, receipt notices that may be used as evidence of lawful status and work authorization for up to 24 months past the expiration date found on a conditional permanent resident card (PRC) or green card. These notices extend the validity of the card and allow it to continue to be used for work and travel.

The expired PRC is not sufficient alone for I-9 purposes, however USCIS does allow employers to accept it, along with an I-797 receipt notice (for the Form I-751 or Form I-829) as evidence of continued status, now for 24 months past the expiration date of the PRC. Specifically, the expired PRC with the Form I-797 indicating USCIS has extended the card’s validity can be used as a List C document on the Form I-9. Employers should record the I-797 receipt number as the document number, and then record the expiration date of the PRC, including the 24 month extension.

Things to Remember

  • Employees who present an expired PRC card/Form I-797 combination, must also present an acceptable List B document that establishes identity.
  • Employers must also reverify the employee’s employment authorization in Section 3 before their extension ends.
  • Employers should always keep in mind that INA §274B permits employees to choose which documents to present to establish identity and employment eligibility. Allow your employees to choose.
    • Accordingly an employee who previously produced an PRC and I-797, is not precluded from producing an alternative List A or List C document during the reverification process.

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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