EAD Printing Delays Lead to I-9 Policy Flexibility

September 28, 2020

By Immigration Group

This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh, Fredrikson Immigration Department Chair, is a member.

U.S. Citizenship and Immigration Services (USCIS) acknowledged production delays in printing Employment Authorization Documents (EADs) due to the COVID-19 pandemic. As a result, USCIS said, foreign nationals may use Form I-797, Notice of Action, with a notice date “on or after December 1, 2019, through and including August 20, 2020,” informing the applicant of approval of Form I-765, Application for Employment Authorization, as a Form I-9 (Employment Eligibility Verification) List C #7 document that establishes work authorization, even though the notice states it is not evidence of that. “Employees may present their Form I-797 Notice of Action showing approval of their I-765 application as a List C document for Form I-9 compliance until December 1, 2020,” USCIS said.

For I-9 completion, employees who present a Form I-797 Notice of Action described above for new employment must also present their employer with an acceptable List B document that establishes identity. By December 1, 2020, USCIS said, employers must reverify employees who presented the 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,” USCIS said.

This flexible policy is part of a proposed settlement to resolve a proposed class action lawsuit challenging delays in the printing of EADs. The lawsuit claims the agency has a printing backlog of approximately 75,000 EADs.