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08.21.20

USCIS will temporarily allow an EAD approval notice, rather than EAD, as proof of employment authorization

BY Jason Gerrol

Applicants for an Employment Authorization Document (EAD) know all too well the extreme processing delays at U.S. Citizenship and Immigration Services (USCIS) these days, with some EAD applications taking six months or longer to be approved. To add to the frustration, there have been numerous cases where USCIS has approved the EAD application, but has been unable to produce the actual EAD in a timely manner, leaving the foreign national worker with no acceptable evidence of employment authorization for purposes of completing Form I-9. In response to litigation regarding these delays, USCIS will temporarily accept the EAD approval notice (I-797 Notice of Action), rather than the EAD itself, as an acceptable Form I-9 List C document establishing employment authorization.

Employers may accept an I-797 Notice of Action indicating the EAD has been approved as a List C document if it contains a notice date on or after December 1, 2019, and through and including August 20, 2020. If utilizing the I-797 Notice of Action, rather than the EAD itself, employers must reverify employment authorization by December 1, 2020.

Importantly, when reverifying employment authorization, an employer must not demand to see a particular document, such as the EAD, or reject other acceptable Form I-9 document(s) presented by the employee (which is considered an unfair documentary practice, and potentially discriminatory). The employee can present any acceptable List A or List C I-9 document to confirm ongoing employment authorization.

Tags: I-9

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Jason Gerrol

Of Counsel

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