On November 23, 2020, U.S. Citizenship and Immigration Services (USCIS) issued a welcome announcement in light of ongoing delays by the agency to adjudicate employment authorization documents (EADs). This announcement extends the acceptance of an I-797 Notice of Action for approval of an employee’s I-765, Application for Employment Authorization, as a List C, item #7 document through February 1, 2021 for completion of Form I-9.
When is it acceptable for an employer to accept an EAD I-797 approval notice as a List C document?
The I-797 Notice of Action for approval must include a notice date from December 1, 2019 through and including August 20, 2020. Note that an I-797 receipt for filing of the I-765 is not sufficient; it must reflect that the I-765 was approved. Thus, the applicant is pending receipt of the actual EAD card, which is a List A document for Form I-9.
What is the last day that new and current employees may present an I-797 EAD approval notice for List C purposes?
February 1, 2021. Please note that employees must still present a List B identity document when selecting this option for Form I-9 completion.
How does this extension notice affect the earlier notice of extension for I-797 EAD approval notices, which applied to I-797 EAD approval notices issued from December 1, 2019 to and including August 20, 2020?
For employers who indicated December 1, 2020 as the expiration date of the List C I-797 EADs affected by the first (original) USCIS extension notice and the employee has yet to receive the requested EAD, employers must update Form I-9 in the additional information box by writing the following: “Employment Authorization Ext Until 02/01/2021.” (note example below)
Must employers reverify work authorization of employees using this I-797 EAD approval notice option for a List C document?
Yes, by February 1, 2021, employers must reverify the work authorization of employees, who presented such approval notices. Employees may present a qualifying List A or List C document of their choosing. The current version of the Form I-9 is available at: https://www.uscis.gov/i-9
About the Author:
Kathleen Campbell Walker is a member of Dickinson Wright PLLC and serves as a co-chair of the Immigration Practice Group. She is a former national president and general counsel of the American Immigration Lawyers Association (AILA) and is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. She serves on the AILA Board of Governors. In 2014, she received the AILA Founder’s Award, which is awarded from time to time to the person or entity, who has had the most substantial impact on the field of immigration law or policy in the preceding period (established 1950). She has testified several times before Congress on matters of immigration policy and border security.
