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I-9 Alert: USCIS Extends Evidence of Status for Conditional Permanent Residents with Pending I-751 and I-829 applications to 24 Months

In light of the lengthy delays in immigration processing, the United States Citizenship and Immigration Services (USCIS) announced they are extending the time that certain receipt notices (Forms I-797) can be used to show evidence of status for conditional permanent residents with pending applications – a move which has Form I-9 implications for new hires.

Under the new policy, USCIS will now issue I-797 receipt notices that serve as evidence of continued status for 24 months past the expiration date on an individual’s conditional permanent resident card (green card). For many years, USCIS only provided a one-year extension period for conditional green cards; more recently, in 2018, they extended the time period from 12 months to 18 months.

How this change impacts Form I-9 Compliance

Conditional permanent residents are individuals who apply for permanent residency in the US, based either on a marriage to a U.S. citizen (or permanent resident spouse) OR as entrepreneur (investor) in the EB-5 program. Dependent children may also acquire conditional resident status.

Before their 2-year conditional residence expires, conditional permanent residents must file an application to remove their conditions (Form I-751 or Form I-829) and, in essence, extend their status to indefinite lawful permanent residence. While the application is pending, the applicants’ green card (I-551) may expire, complicating matters if he/she happens to be starting a new job in the US.

While conditional permanent residents can show an identity document (List B) along with an unrestricted SS card (List C) for I-9 purposes, many applicants choose to present the expired green card – which is not acceptable for Form I-9 purposes by itself.

Fortunately, the USCIS allows employers to accept expired green cards in these situations if the employee also presents an I-797 receipt notice for the I-751 or I-829 application, as outlined in the Handbook for Employers (M-274). Employers are instructed to treat the document combination under the so-called List C “catch-all” document category – “Employment Authorization Document issued by the Department of Homeland Security.”

Completing the Form I-9

If an employee presents an expired green card (I-551) along with an I-797 receipt notice for an I-751 or I-829 application, the employer should document it in the List C column of the Form I-9. As mentioned above, this combination qualifies under the catch-all, Employment Authorization Document issued by the Department of Homeland Security.

Employers will typically record information from the I-797 in List C for these purposes, writing “USCIS” for the issuing authority and entering the 13-digit receipt number from the I-797 as the document number. The expiration date is calculated by adding the extension time period (indicated on the I-797) to the green card expiration date. For example, if the employee’s green card expired on September 13, 2021 and the I-797 indicates that the conditional resident status has been extended for 24 months, you would write September 13, 2023 as the expiration date.

Since this document combination only qualifies as a List C document, the employer will also need to ask the employee to provide an identity document from List B in order to complete Section 2 of the I-9. Below is snapshot illustrating the acceptance of the expired green card and an I-797 receipt for a I-751 application as well as the completion of Section 2 of the I-9:

Reverification of Expired GC + I-797

Employers accepting an expired green card along with the I-797 receipt described above must reverify the employee’s work authorization in Section 3 of the Form I-9 before the extension ends. As with any reverification, the employee must be given an opportunity to present a document of their choosing to demonstrate their continued work authorization. Employers should never ask an employee to present a specific document, such as a green card, as doing so can constitute an unfair documentary practice.

Don’t confuse your I-797s

One final note – earlier this year, the USCIS began issuing revised I-797 extension receipts to lawful permanent residents who are simply extending their green cards (without removing conditions) through the I-90 renewal application process. If an employee presents to you an I-797 extension letter for an I-90 application, the letter and expired green card qualify as a List A document, which does NOT need to be reverified. See our blog for more details.

Given the difference in I-9 process, it’s always a good idea to carefully examine any I-797 receipt notice provided by an employee to ensure you are applying the correct verification rule.

Have questions about this alert? Please drop us a line. And if you’d like to learn more about the Guardian Electronic I-9 and E-Verify system which simplifies and standardizes I-9 compliance, you can contact us here.

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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