USCIS Issues Temporary I-9 Verification Accommodations Due to EAD Production Delays

A closer look

U.S. Citizenship and Immigration Services (USCIS) announced that due to COVID-19-related delays in the production of Employment Authorization Documents (EADs), certain foreign nationals may use an EAD approval notice to establish employment authorization during the I-9 verification process, even though such notices explicitly state that they do not establish such authorization. 

The accommodation comes after a settlement was reached between the parties in Subramanya, et al., v. USCIS, a class action lawsuit filed against USCIS, claiming harm resulting from the recent extensive delays in EAD card issuance. 

I-9 employment verification under this accommodation

Through December 1, 2020, employers may accept from employees a Form I-797, Notice of Action, dated on or after December 1, 2019 and through and including August 20, 2020 and indicating that their EAD application has been approved, as a Form I-9, Employment Eligibility Verification, List C #7 document establishing employment authorization. Typically, employers may only accept the issued EAD card, and only as a List A document, under normal I-9 rules. 

The accommodation will permit employees with Form I-797 approval notices to complete the I-9 process and begin work prior to issuance of their EAD card.

USCIS explicitly stated that the approval notice will not provide evidence of identity as a List B document, or serve as a List A document establishing both identity and employment.

For Form I-9 completion, employees who present an approval notice for new employment must also present their employer with an acceptable List B document that establishes identity, such as a State driver’s license, a government ID or a Voter Registration Card. A complete list of acceptable identify documents is available in Form I-9’s instructions.

What to expect as the accommodation expires

By December 1, 2020, the date the accommodations expire, employers must reverify employees who presented an approval notice as a List C#7 document. Employees will need to present their employers with new evidence of employment authorization from either List A or List C.

USCIS encourages employers to accept new EADs as soon as they are issued and presented by the employees, even if prior to December 1. However, it is the employees’ choice whether to present their new EADs, or a different document from either List A or List C. As a reminder, due to the ongoing COVID-19 emergency, U.S. Immigration and Customs Enforcement has extended its remote I-9 document inspection policy through September 19, 2020.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen or the firm’s Government Strategies and Compliance Group.