New I-9 Update for Employees Without EAD Cards Due to USCIS Processing Delays

On August 19, 2020, U.S. Citizenship and Immigration Services (USCIS) announced an exception to the documents an employer may accept to prove that an employee is employment-authorized. USCIS’ own delays in processing Employment Authorization Documents (EADs) necessitated that they find an exception so that people can continue working uninterrupted or start a new position on time.

Foreign nationals file for an EAD using USCIS Form I-765. If USCIS approves the application it sends an approval notice and then produces an actual EAD card. It is this card that employees must present when completing Form I-9.

The Background

For months now, immigrants who filed for new EADs or to replace expiring EADs have not received the actual EAD card, despite receiving notice that USCIS has approved their EAD application. The form I-9 requires that employees must produce an actual EAD card with a valid date, not simply evidence that they filed an application that USCIS has approved.

These ongoing USCIS backlogs in producing the actual card created difficult situations for employers and employees alike. Many employees even lost their jobs while waiting for EAD cards because their employers could not accept only the approval notice from USCIS, under List C of the I-9 form.

The Temporary Exception

The new guidance issued today by USCIS allows employers to accept the approval notice that USCIS gives to applicants when USCIS approves an EAD application. These receipts are printed on Form I-797, Notice of Action. The date of approval of Form I-765 on the I-797 must be on or after December 1, 2019 through, and including, August 20, 2020.

Specifically, the guidance now says that, “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.”

Please note that the I-797 does not prove identity or serve as either a List A document establishing both identity and employment authorization, or a List B document establishing identity for Form I-9 purposes.

Bottom Line

Before today, an employee without an actual EAD card may not have satisfied the I-9 employment authorization requirements. However, an employer may restart employment put on hold for this reason.

By December 1, 2020, employers must re-verify the I-9 by having these particular employees who presented only the I-797 EAD Approval Notice, present new evidence of employment authorization from either List A or List C. By this time, USCIS hopes to have produced and mailed all backlogged EAD cards.