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As the U.S. Citizenship and Immigration Services (USCIS) continues to operate under the stress of the ongoing COVID-19 pandemic and anticipated budget shortfalls, the production of certain Employment Authorization Documents (Form I-766, EAD) has become increasingly delayed. On August 19, 2020, in response to this situation, USCIS issued guidance providing employers and employees some flexibility to mitigate the myriad of I-9 compliance issues associated with the delays in EAD production.
Under the instructions for Form I-9, Employment Eligibility Verification, employees may present an EAD as an acceptable List A document to verify identity and employment authorization. The new guidance temporarily allows employees to present a Form I-797 Notice of Action related to an approved Form I-765 application, where the application was approved from December 1, 2019, through August 20, 2020, as a List C document for I-9 verification and reverification. Although USCIS explicitly states that the Form I-797 Notice of Action “is not evidence of employment authorization,” this temporary guidance allows employers to accept the Form I-797 until December 1, 2020, as a List C document to establish that employment authorization has been issued by the U.S. Department of Homeland Security.
New employees who present their Form I-797 Notice of Action to complete the I-9 verification process are also required to present an acceptable List B document to establish their identity. Current employees who need to complete the I-9 reverification process also may present their Form I-797 Notice of Action as a valid List C document.
The guidance requires employers to reverify all employees who presented a Form I-797 Notice of Action as a List C document by December 1, 2020.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to the USCIS policy changes and will post updates on the Immigration blog and in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.
