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Form I-9 Alert: Employers may accept I-797 Approval Notices for Delayed EAD Cards

Yesterday, the United States Citizenship and Immigration Services (USCIS) announced that employers may accept an EAD approval notice (Form I-797) for Form I-9 purposes in order to account for the delayed issuance of EAD cards that many temporary workers have been experiencing this year.

This announcement was long overdue (if you already know the backstory, you can jump down to here where I discuss the new guidance and how to complete the I-9).

During the past few months, HR and I-9 compliance managers across the US have become very familiar with this issue, which typically plays out as follows:

I-9 new hires or reverification

HR Manager: Can I please see the document you’ve chosen to demonstrate your work authorization?

Employee: Well, here’s the thing. I applied for a new EAD months ago and I even got a notice indicating that it was approved. But, I haven’t received the card yet. Is that going to be a problem?

And of course, we all know the answer to that question. By and large, the Form I-9 rules provide very little flexibility when it comes to producing documents to prove one’s identity and employment authorization. The COVID-19 pandemic has tested the bounds of those rules, leading to the unprecedented relaxing of certain documentary requirements – specifically relating to List B identity documents which can’t be issued due to government office closures.

But when it comes to EAD and green card delays, there’s an entirely different story (which actually has very little to do with COVID-19).

Early last month, the Washington Post revealed that sometime in June, the United States Citizenship and Immigration Services (USCIS) terminated their contract with an outside company that had been responsible for printing EADs and green cards. The USCIS planned to “insource” the production of these documents moving forward, but “the agency’s financial situation” prompted a hiring freeze that ultimately resulted in the severe slowdown of EAD and green card production.

How severe? According to the USCIS, approximately 50,000 green cards and 75,000 EADs haven’t been printed. As mentioned earlier, that’s a huge problem – especially for EAD applicants who in most cases cannot produce any other combination of documents for the Form I-9.

In late July, the USCIS Ombudsman issued an alert to stakeholders informing them of the issue and offering assistance to individuals whose applications have been approved but whose cards have not yet been produced. Shortly thereafter, an approved EAD applicant filed a class action lawsuit before a federal court in Ohio arguing that the EAD is the only document that is legally sufficient to provide evidence of her work authorization and that her employment will be terminated if she does not provide a valid unexpired EAD.

In early August, the court issued a Temporary Restraining Order requiring USCIS to issue the plaintiffs’ EADs within 7 days. The court also scheduled arguments on further injunctive relief for all individuals residing in the US who have submitted an application for an EAD that has been approved by USCIS, but who have not received it.

USCIS Provides Temporary Relief with Form I-9 Policy Change 

As mentioned in our blog opener, the USCIS has provided some temporary relief for employees with approved EADs by specifically permitting employers to accept the EAD approval notice (Form I-797) issued on or after December 1, 2019 through and including August 20, 2020 as a List C #7 document. This allowance will be in effect until December 1, 2020.

Under normal circumstances, accepting an EAD approval notice would not be allowed. In fact, the I-797 approval notice for an EAD clearly states that it is not evidence of employment authorization.

The USCIS also notes that since the I-797 serves only as a List C document (i.e., there is no photo on it), newly hired employees must also present a valid and acceptable List B document for identity purposes. However, if you’re simply reverifying a current employee in Section 3, the I-797 alone will suffice.

Then, by December 1, 2020, employers must reverify employees who presented this Form I-797 approval notice, and ask the individuals to provide new evidence of employment authorization from either List A or List C. In most cases, this will be the newly issued EAD card, but employees can present something else if it’s acceptable.

How to complete the Form I-9 in this situation

  1. The employer should review the Form I-797 and verify that it has a Notice Date on or after December 1, 2019 through and including August 20, 2020 informing an applicant of approval of an Application for Employment Authorization (Form I-765).
  2. Per the USCIS, the I-797 qualifies as a List C #7 (Employment Authorization Document issued by the Department of Homeland Security). Therefore, the employer should fill out the List C column with that document title for new I-9s. If reverifying, this can be entered in Section 3. For the issuing authority, enter USCIS. For the document number, enter the 13-digit receipt number in the upper left hand corner of the I-797. Finally, enter December 1, 2020 as the expiration date – since that is the deadline for reverification.
  3. For new I-9s, request and inspect an identity document from List B. Record all of the required document information in Section 2.
  4. Although not specifically mentioned by USCIS, I would retain a copy of the USCIS guidance with the I-9, in case a question ever arises during an I-9 inspection.
  5. Set a reminder for yourself to reverify the I-9 before December 1, 2020 (note – an electronic I-9 system should do this for you automatically). Make sure you provide yourself with plenty of time prior to December 1 to notify/remind the employee. And as the USCIS indicated, you can certainly reverify the I-9 long before this deadline once the employee receives their EAD or has other documentation.

What’s Next 

While yesterday’s announcement was helpful, employers should be on the lookout for additional problems and delays – especially if USCIS decides to move forward with their planned furlough of approximately 2/3 of their workforce at the end of this month. Needless to say, a furlough would grind a broad array of USCIS processing activities to a halt and impact countless number of foreign workers who have applied for some benefit application or relief.

LawLogix is closely monitoring the situation and will provide I-9 updates and advisories as new information becomes available. In the meantime, please drop us a line if you have questions or if we can assist in helping your organization with I-9 and E-Verify services during these challenging times.

About John Fay

John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as President at the LawLogix division of Hyland Software, Inc., where he oversees all aspects of the division’s operations and provides strategic leadership and direction in the development and support of Form I-9, E-Verify, and immigration case management software solutions.

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