Today, the United States Citizenship and Immigration Services (USCIS) announced they are extending the validity of certain EAD approval notices for Form I-9 purposes until February 1, 2021. Previously, the agency informed employers that they may accept an EAD approval notice (Form I-797) in lieu of the actual card through December 1, 2020.

We wrote about the extreme delay in EAD issuance earlier this summer, when the USCIS first announced this temporary policy change. Although the agency claimed to have addressed the backlogs in August, it would seem that many EAD beneficiaries are still waiting to receive their cards.

When to Accept an EAD Approval Notice for Form I-9 Purposes

By virtue of today’s announcement, employers may continue to accept a Form I-797 EAD approval notice for Form I-9 purposes in lieu of the actual EAD (both new hires and reverifications) through February 1, 2021 provided that the following conditions are met:

• The Form I-797 approval notice must include a Notice Date from Dec. 1, 2019, through and including Aug. 20, 2020
• The Form I-797 approval notice must indicate that USCIS has approved the employee’s Form I-765, Application for Employment Authorization
• New employees will also need to present an acceptable List B identity document

How to complete the Form I-9 for New Hires

(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 in Section 2 of the Form I-9 to record the approval notice. 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 February 1, 2021 as the expiration date – since that is the extended deadline for reverification.

(3) 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 February 1, 2021 (note – an electronic I-9 system should do this for you automatically). Make sure you provide yourself with plenty of time prior to February 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.

How to update an I-9 that was previously completed with an EAD Form I-797 approval notice

Per today’s announcement, employers who previously entered a Dec. 1, 2020 expiration date on the Form I-9 for employees who presented this Form I-797 approval notice as a new hire or for reverification as directed in the original notification must update their employees’ forms to document continued employment authorization.

The USCIS specifically notes that employers should write Employment Authorization Ext Until 02/01/2021 in the Additional Information box in Section 2 of Form I-9. However, employers using electronic I-9 solutions should consider amending the Section 2 “List C #7” expiration date with the extended 2/1/2021 expiration in order to trigger automated reverification reminders and dashboard alerts.

By Feb. 1, 2021, employers must reverify employees who presented this Form I-797 approval notice by requesting new evidence of employment authorization — either a new EAD or any other acceptable documentation from either List A or List C.

Questions

Have questions about this process or how an electronic I-9 solution can help?  Please drop us a line with your specific inquiry, and we’ll be happy to assist.