Recent Form I-9 Updates

In addition to again extending the flexibility in complying with requirements related to Form I-9s due to COVID-19 for employers and workplaces operating remotely to September 19th, the U.S. Citizenship and Immigration Service has made a change to a long-standing policy on acceptable documentation with respect to Employment Authorization Document cards (EADs). 

Due to unprecedented delays in the production of EADs that have approved by the USCIS, the agency is allowing employers to accept a Form I-797, Notice of Action, with a Notice date on or after December 1, 2019 through August 20, 2020 that informs an applicant of approval of his or her Form I-765, Application for Employment Authorization  as a Form I-9 List C document to establish employment authorization, even though the Form I-797 states on its face that it is not evidence of employment authorization.  This allows employees and new hires to present their Form I-797 showing approval of their Form I-765 application as a list C document along with a List B document establishing identity for Form I-9 compliance until December 1, 2020.

However, by December 1, 2020, employers must reverify employees who presented the Form I-797 as a List C document by reviewing the EAD card that the employee should receive. Alternatively, employees can present new evidence of employment authorization from either List A or List C.  Best practice would be to encourage your employees who present the Form I-797 approval to bring in their new EADs as soon as they receive them; nevertheless, it is the employee’s choice whether to present the new EAD or a different document from either List A or List C.