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Due to EAD Production Delays, Employers May Continue to Accept EAD Approval Notices for Form I-9 Compliance through February 01, 2021

Due to the production delays of certain Employment Authorization Documents (EAD, Form I-766), USCIS previously announced that employers can accept EAD approval notices for Form I-9 verification through December 01, 2020. DHS is now extending the validity of these Forms I-797 Notice of Action through February 01, 2021.  The major takeaways are as follows:

  • Employees may use Form I-797 Notice of Action showing approval of their EAD application as a Form I-9, Employment Eligibility Verification, List C #7 document, but only if the I-797 has a notice date on or after December 1, 2019, through and including August 20, 2020. Please note that employees can temporarily present this document even though the I-797 Notice of Action states that it is not evidence of employment authorization,
  • New employees and current employees requiring reverification who are waiting on their EADs may present their Form I-797 Notice of Action showing approval of their EAD application as a list C document for Form I-9 compliance until February 01, 2021.
  • The I-797 Notice of Action cannot be used as a List A document or List B document. Employees who present a Form I-797 Notice of Action for new employment as described above must also present their employer with an acceptable List B document that establishes identity.
  • Employers who entered a December 01, 2020 expiration date on Form I-9 for employees who presented this Form I-797 as a new hire or for reverification as directed in the original notification must update their employees’ I-9 to document continued employment authorization. To do so, write “Employment Authorization Ext until 02/01/2021” in the Additional Information Box in Section 2 of Form I-9.
  • By February 01, 2021, employers must reverify employees who presented a Form I-797 Notice of Action as a List C document. These employees will need to present their employers with new evidence of employment authorization from either List A or List C. Employees must be allowed to choose which documents to present.

By: Krystal Alanis 

Krystal Alanis is a Partner at Reddy & Neumann P.C. She acts as the Managing Attorney for the firm’s PERM Labor Certification Department, where she oversees all EB-2 and EB-3 employment-based green card matters. She also guides employers and individuals through the I-140 and Adjustment of Status process, assists clients with non-immigrant visa petitions (e.g. H-1B, TN, L-1, etc.), and advises her clients on I-9 compliance issues.