USCIS Accommodation on I-9 Completion Due to Its Inability to Issue Timely EAD Cards

Dickinson Wright
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Dickinson Wright

On August 20, 2020,  United States Citizenship and Immigration Services (“USCIS”) announced that due to Covid-19 and because of its long delays in producing Employment Authorization Documents, Form I-766 (“EAD”) cards, that it would permit employees to present  a Form I-797, Notice of Action, Approval Notice to prove work authorization for their Form I-9, Employment Eligibility Verification rather than requiring the actual valid plastic Form I-766, EAD card.  If the employee presents a valid I-797 Notice of Action approval for employment authorization, the employer must accept the approval notice for  Form I-9, Employment Eligibility Verification as a List C document (Item #7 under List C)  to establish employment authorization through December 1, 2020.  USCIS further advises that the I-797, Notice of Action, Approval Notice only provides evidence of employment authorization.  It does not provide evidence of identity, for List B or A purposes on Form I-9.  Additionally, the ameliorating provision only applies to Form I-797 Notice of Action, Approval Notices with a validity date on or after December 1, 2019 and through and including notices dated August 20, 2020.  Foreign national employees are only able to use such dated approval notices (December 1, 2019 through to August 20, 2020) until December 1, 2020 after which time, the employer must reverify the employee’s employment authorization on Form I-9.

Under current employment verification rules, an original EAD card is required, when selected to be presented by an employee for List A purposes. Currently, many foreign nationals are unable to demonstrate that they have employment authorization and have been either unable to start working in a position, or they have been unable to continue to work in a particular position.   On July 9, the Washington Post reported that USCIS shut down the printing of permanent resident cards and EADs due to financial concerns. This special accommodation is because of a temporary restraining order issued by the U.S. District Court class action lawsuit filed in the Southern District of Ohio (Subramanya v. USCIS) against the USCIS for its long delays in producing EAD cards.

It is important to remember that the I-797, Notice of Action, Approval Notice option for Form I-9 List C completion applies only to EADs approved from December 1, 2019 to and including August 20, 2020.  It is also critical to understand that after December 1, 2020, employers must reverify employment authorization using a document chosen by the employee, other than the I-797, Notice of Action, Approval Notice. So, employers must set up a reminder to ask the employee for new documentation.  The new documentation would need to be an employment authorization document from List A or from List C to reverify employment authorization on Form I-9.  Under USCIS regulations, an employer cannot specify a specific document such as an EAD Card, but in all likelihood, certain foreign national employees will need to produce the EAD Card, Form I-766, to reverify employment authorization on or before December 1, 2020, unless this modification is extended by USCIS.

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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