Common I-9 Questions

Q. Can I Accept a USCIS Filing Receipt for an EAD Card when the “Eligibility Category” on the Receipt and the Expired EAD Card do not match?

A. No.

This employee is not renewing an existing EAD card when the categories are different.

As delays at U.S. Citizen and Immigration Services (USCIS) processing centers grow to record-breaking processing times, employers face new I-9 questions. The online USCIS resources are not always up-to-date, and it is more difficult than ever to dig through those resources to find an answer to your question.

I thought I’d try to share the answers to common questions that our clients have and provide the resources to back up your I-9 compliance efforts when these come up in your company.

A Common Set of Facts

Today’s question focuses on an employee whose student-based (F-1) Employment Authorization Document (EAD) expired. The employee had been a student, graduated, and was employed in Optional Practical Training (OPT) status. The student had no options to renew her EAD based on her field of study.

Before her first EAD expired, the student married a U.S. citizen who filed an immigrant visa application for her as his wife. The regulations permit the foreign national to simultaneously file for what is called adjustment of status (for a green card), an EAD card, and a travel document. She had valid receipts from USCIS showing that she had filed these applications and presented her EAD filing receipt to the employer as proof that she is authorized to work.

Upon inspection of the expired EAD on file and the new receipt notice from USCIS, the employer noticed that the EAD receipt had an “eligibility category” that was not the same as the eligibility category printed on the expired F-1 EAD card.

Unfortunately, in this situation, the employee is not authorized to continue to work based upon only a receipt from USCIS. The employee must have the actual EAD card. Here’s how I analyzed this.

Analysis

The employee applied for her green card based on her marriage to a U.S. citizen. Along with filing for the green card, she also filed for employment authorization based on the pending green card application, not on the student status. Students and green card applicants are two different eligibility categories for EAD purposes.

The C09 category listed on the employee’s USCIS receipt notice is for adjustment applicants. Since this was her first EAD application based upon her pending green card application (an initial grant of employment authorization), and she did not yet have her first, actual C09-based EAD card, she would not be able to work until she had the actual card.

Resources

“You cannot accept a receipt showing the employee has applied for an initial grant of employment authorization.” https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/120-acceptable-documents-for-verifying-employment-authorization-and-identity.

For a list of acceptable receipts see https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/40-completing-section-2-of-form-i-9/43-acceptable-receipts.

For a list of categories where the receipt automatically extends an expired EAD document see https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/40-completing-section-2-of-form-i-9/44-automatic-extensions-of-employment-authorization-documents-eads-in-certain-circumstances.

Since she has changed her status from a student (F-1 visa) to an applicant for permanent resident status (C09) this is considered an application for an initial grant of employment. The Form I-797 Notice of Receipt of her EAD application is not acceptable evidence of employment authorization. The only way the employee could continue to work with presenting only a receipt notice from USCIS, is if she had renewed her OPT status. Note that for some STEM students, this is possible.

Bottom Line

The green card application (adjustment of status) grants the employee permission to remain in the U.S. lawfully, but she technically has no immigration status. She also does not have permission to accept new employment or continue her former employment until the new card arrives or she receives her green card.