USCIS provides temporary flexibility for certain I-9 document requirements between now and Dec. 1

19 Aug 20

UNITED STATES

U.S. Citizenship and Immigration Services announced Wednesday that between now and Dec. 1 it will permit employers to accept certain employees’ Form I-797 Notice of Action showing approval of an Employment Authorization Document (EAD) (Form I-765) application as a List C employment authorization document for Form I-9 compliance.

Key Points:

  • Between now and Dec. 1, employees may use their Form I-797, Notice of Action, showing approval of their EAD application, as a List C #7 document for I-9 purposes, provided the Form I-797 has a notice date between Dec. 1, 2019 and Aug. 20, 2020. They can do so even though the Notice says it cannot be used as evidence of employment authorization.
  • The I-797 Notice of Action cannot be used as a List A or List B I-9 document. Employees who present the I-797 for new employment must also provide their employer with an acceptable List B document to confirm their identity. The list of acceptable List B documents is available on the Form I-9.
  • Employers will have until Dec. 1 to re-verify employment authorization for employees who provide a Form I-797 Notice of Action as a List C document. In order to do this, employers must ask employees to provide new evidence of employment authorization from either List A or List C.

Background: The temporary change was made because of what USCIS called the “extraordinary and unprecedented COVID-19 public health emergency” and related delays in the production of Employment Authorization Documents (Form I-766/EADs).

BAL Analysis: The change is a significant development that eases I-9 requirements during the pandemic for those that have been eagerly awaiting the delivery of their EAD months after their approvals have arrived. It will allow affected employees to begin working sooner before receiving their EAD card, if they received the required notification that their EAD application was approved between Dec. 1, 2019 and Aug. 20, 2020. Employers are reminded that if an employee presents an approval notice in reliance on this announcement, they must re-verify the employee’s work authorization by Dec. 1, 2020. BAL continues to monitor the administration’s response to the COVID-19 pandemic and will provide additional information as it becomes available.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

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