U.S. Citizenship and Immigration Services (USCIS) has extended through February 1, 2021 its accommodation permitting certain foreign nationals to use an Employment Authorization Document (EAD) approval notice as a List C document to establish employment authorization during the I-9 verification process, even though the notices explicitly state they do not establish employment authorization.
The policy, originally set to expire on December 1, 2020, was put in place in late August after a settlement was reached between the parties in Subramanya, et al., v. USCIS. Subramanya is a class action lawsuit filed against USCIS, claiming harm from the recent extensive delays in EAD card issuance. USCIS cites COVID-19-related operational issues as the reason for continued delays in EAD production.
I-9 employment verification under this accommodation
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.
Through February 1, 2021, 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.
USCIS has 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.
Continuing to use this accommodation
Employers relying on a December 1, 2020 expiration date on a Form I-9 pursuant to the initial policy validity period must now update these forms to document the extension. Employers can do so by writing “Employment Authorization Ext Until 02/01/2021” in the Additional Information box in Form I-9, Section 2.
What to expect as the accommodation expires
By February 1, 2021, 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.
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 December 31, 2020.