On August 20, 2020, U.S. Citizenship and Immigration Services (USCIS) announced that it will temporarily accept certain I-797 Approval Notices issued by USCIS in lieu of original Employment Authorization Documents (EADs) as an acceptable form of employment authorization for I-9 purposes. USCIS announced the policy because the agency is currently experiencing significant slowing and delays in issuance of new EAD cards due to the impact of COVID-19 on USCIS operations. Because USCIS is so slow to produce and issue new EADs to applicants, the agency is directing employers to temporarily accept the original, official I-797 approval notice in lieu of the original EAD, even though the notice explicitly states on it that it may not be accepted as evidence of temporary work authorization. Normally, approval notices may never be accepted instead of the original document. If presented an I-797 approval notice pursuant to this new policy, employers should remember the following:

  • The policy is only temporary. USCIS expects to return to the long-standing policy of not accepting approval notices in lieu of original EADs by December 1, 2020.
  • The policy only applies to certain I-797s. Only approval notices with a Notice Date on or after December 1, 2019, through and including August 20, 2020, may be accepted in lieu of the original EAD. Notices issued before or after that period do not qualify. Also, the policy only applies to approval notices and not to receipt notices. Normally, USCIS issues an I-797 confirming receipt of an I-75 application for an EAD, then many months later issues another I-797 notice after the application is approved, followed finally by the original EAD itself. It is because USCIS is taking so long to issue the EAD card after an application is approved that it is allowing employers to temporarily accept approval notices now.
  • Employers must treat the I-797 approval notice as a List C document (verifying valid employment authorization). The employee must therefore also present an acceptable List B document to demonstrate their identity. The EAD itself is a List A document that demonstrates both identity and work authorization, but the I-797 does not have a picture on it and therefore may not be used as a List A document.
  • Employers who accept the I-797 approval notice in lieu of an original EAD must follow up with the employee and re-verify their work authorization as normal by no later than December 1, 2020. Employees who are unable to present a valid and acceptable form of employment authorization by December 1, 2020, may not continue to be employed. As always, the employee has the right to present any form of acceptable documentation listed on the Form I-9. Even if an employer accepts an I-797 approval notice in lieu of the original EAD, the employee does not need to present the EAD once they receive it as long as they present some form of identification and work authorization that is listed as acceptable on the form I-9 by no later than December 1, 2020.
  • This announcement supplements USCIS’s separate announcement extending until September 18, 2020, the temporary relaxation of in-person I-9 preparation and signatures for certain employers. More information from Schwabe is available here.
  • USCIS and the Department of Homeland Security are continuing to conduct regular I-9 audits and enforcement activity. Don’t let your company’s standard operating procedures and good compliance habits fall into disarray. Make sure all new I-9s are completed fully, correctly, and in a timely manner as always. And if your company has the time and opportunity, consider taking advantage of this unusual situation to do a little housekeeping. Conduct a self-audit of your I-9 records, and with the assistance of counsel, work to get them in the best shape possible for when things get back to normal and the government inevitably goes back to knocking on doors.

Please visit Schwabe’s resource page for more information, to view educational videos, or read additional articles about legal issues relating to COVID-19.

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