Summary: USCIS authorizes the temporary use of an I-797 EAD approval notice as a List C #7 document that establishes employment authorization (but not identity) for I-9 purposes. To qualify, the I-797 approval notice must have “a Notice date on or after December 1, 2019, through and including August 20, 2020.” Employers who use this flexibility will have to reverify the employee on the I 9 Form document with the actual EAD (or suitable other combination of documents) by December 1, 2020.
When a nonimmigrant employee is hired, he or she needs to complete the I-9 Employment Eligibility Verification and needs to submit the EAD (Employment Authorization Document). But what if your EAD card is approved but you haven’t received the card yet? USCIS recently announced Form I-9 Verification During EAD Production Delays Due to COVID-19 which allows employees to submit the I-797 Approval notice instead of EAD to complete the I-9 form document. If you were about to start working through OPT or H-1B, but not able to complete the I-9 form simply due to the EAD production delay, this announcement can be a lifesaver for you. By reading this blog post, you will fully understand what you are allowed to do during EAD production delays due to COVID-19.
… employees may use Form I-797, Notice of Action, with 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) as a Form I-9, Employment Eligibility Verification, List C #7 document that establishes employment authorization issued by the Department of Homeland Security pursuant to 8 C.F.R. 274a.2(b)(1)(v)(C)(7), even though the Notice states it is not evidence of employment authorization. Employees may present their Form I-797 Notice of Action showing approval of their I-765 application as a list C document for Form I-9 compliance until December 1, 2020.
Form I-9 Verification During EAD Production Delays Due to COVID-19
Contents
EAD production delays
When nonimmigrant completes the Form I-765 application for Employment Authorization Document (EAD), they are given the I-797 receipts. Usually, the first receipt simply says that USCIS has received the application. Then, EAD applicants will receive the second I-797 that says whether their application is approved or denied.
Even before USCIS announced their exception to accept the form I-797, EAD production delay has been observed for many reasons that include the end of the contract with the printing company, backlogs due to office closure, and expected-to-be- furloughed staff from September.
If you were planning to work through OPT or H-1B, and haven’t received the EAD card yet, you must be feeling stuck. Especially given that the unemployment clock starts ticking from the OPT start date, delayed EAD card production concerned many F-1 students. In this spirit, the USCIS update is indeed good news for OPT and H-1B applicants as they can provide the I-797 approval notice to prove that their I-765 is approved. So, how does it work?
Related blog post 1: EAD card production delay due to USCIS printing issues
Related blog post 2: USCIS gov processing time will take longer than ever
Related blog post 3: Would delayed USCIS furloughs shorten the EAD processing time 2020?
I-9 form document verification
Check your I-797 approval notice first. If the notice date on the form I-797 is on or after December 1, 2019 through and including August 20, 2020, you are eligible for this temporary exception. Your I-797 approval notice can be submitted as List C I 9 form document. Important thing to note is that this exception only applies to I-9 form document. By no means I-797 will work as a proof of employee’s identity.
THE I-797 NOTICE OF ACTION DESCRIBED ABOVE DOES NOT PROVE EVIDENCE OF IDENTITY OR SERVE AS A LIST A DOCUMENT ESTABLISHING BOTH IDENTITY AND EMPLOYMENT AUTHORIZATION OR A LIST B DOCUMENT ESTABLISHING IDENTITY FOR FORM I-9 PURPOSES.
Form I-9 Verification During EAD Production Delays Due to COVID-19
When an employee who submitted the I-797 approval notice instead of EAD card, then receives the EAD later, she or he needs to let the employer know for re-verification. USCIS encourages employers to reverify all employees who take advantage of this temporary policy exception prior to December 1, 2020.
By December 1, 2020, employers must reverify employees who presented this Form I-797 Notice of Action as a List C document. These employees will need to present their employers with new evidence of employment authorization from either List A or List C.
We encourage employers to accept new EADs presented by employees as soon as they receive them from USCIS prior to December 1, 2020, to satisfy the reverification requirement. However, it is the employees’ choice whether to present their new EADs, or a different document from either List A or List C.
Form I-9 Verification During EAD Production Delays Due to COVID-19
Therefore, if you were worrying about the delayed EAD card production, check your I-797 approval notice first. If you are eligible, communicate with your employer by sending the USCIS link, and follow the process to submit the I-797 instead of EAD.
