Written by David S. Rugendorf

Faced with logistical difficulties in producing work authorization documents (EAD cards), a growing backlog of applications and related litigation, the USCIS announced yesterday (August 19, 2020) that it would, in limited circumstances, allow paper I-797 approval notices to suffice as evidence of employment authorization, even though these notices explicitly state that they are not valid as evidence of same.

US employers are required to verify the work-authorized status of all new hires within three (3) days of employment through the completion of Form I-9. The Form I-9 requires that new employees produce documentation evidencing both identity and US work authorization. Among the list of acceptable documents that establish both identity and work authorization is a government-issued photo ID card commonly known as an EAD card. Traditionally, a new employee may produce the actual card to satisfy the I-9’s requirements: a USCIS I-797 approval notice indicating the grant of an application for work authorization is not sufficient. This summer, due to the COVID-19 pandemic and for other reasons, the government has been unable to produce the cards, resulting in a growing number of individuals who have been approved for work authorization but have no way to evidence it.

Accordingly, in an I-9 compliance policy statement provided on its website, the USCIS said it will temporarily allow employees to provide USCIS Form I-797 notices approving applications of work authorization in the place of an actual EAD card. This policy is in effect only until December 1, 2020. At that time, or sooner if the employee receives his or her actual EAD card before that date, an employee’s Form I-9 must be re-verified under the traditional Form I-9 rules. Additionally, to qualify under this temporary policy, the I-797 notice approving employment authorization must contain a notice date on or after December 1, 2019 through and including August 20, 2020.

In addition, and very important to note, the I-797 approval may be used solely as evidence of employment authorization. It may not be used as evidence of identity. For those familiar with Form I-9 parlance and procedure, the I-797 approval notice will temporarily suffice as a List C document. At the time of reverification on December 1, 2020, the employee must provide new evidence of work authorization from List A or List C.

Through September 19, 2020, a scan or copy of the Form I-797 approval notice is sufficient in lieu of the original notice. This accommodation has twice been extended, and may be extended further.

Please contact our Immigration Department if you have any questions.