Due to past delays due to the COVID-19 pandemic, USCIS has authorized temporary and limited use of an I-797 EAD approval notice (not a receipt notice) as a List C # 7 document that establishes employment authorization (but not identity) for I-9 purposes. To qualify:
- The I-797 approval notice must have a notice date on or after December 1, 2019 through and including August 20, 2020
- I-797 approval notices with notice dates outside this range will not qualify
- Employers who use this flexibility will have to reverify the employee on Form I-9 with the actual EAD (or suitable other combination of documents) by February 1, 2021
On August 19, 2020, USCIS posted a notice on its I-9 Central site, authorizing the temporary use of an I-797 EAD approval notice (not a receipt notice) as a List C # 7 document that establishes employment authorization (but not identity) for I-9 purposes. To qualify, the I-797 approval notice must have "a Notice date on or after December 1, 2019 through and including August 20, 2020." I-797 approval notices with Notice dates outside this range will not qualify. Originally, employers who use this flexibility had to reverify the employee on Form I-9 with the actual EAD (or suitable other combination of documents) by December 1, 2020, but on November 23, 2020 USCIS extended that reverification deadline to February 1, 2021, and instructed employers to update the Forms I-9 of covered employees with the new date.
This temporary USCIS policy was the result of litigation undertaken by the law firm of Porter Wright and an eventual settlement with USCIS, in which the United States District Court for the Southern District of Ohio ordered U.S. Citizenship and Immigration Services (USCIS) to allow certain individuals with approved I-765s to begin work before they received the EAD (Employment Authorization Document).
"Extension of Validity of Certain Forms I-797 Due to Continued Employment Authorization Document (EAD) Delays
USCIS previously issued a notice indicating that certain Forms I-797, Notice of Action, are acceptable for Form I-9, Employment Eligibility Verification, through Dec. 1, 2020. DHS is now extending the validity of these Forms I-797. To complete Form I-9, new employees and current employees requiring reverification who are waiting for their EAD may continue to present a Form I-797 described below through Feb. 1, 2021 as a List C #7 document issued by the Department of Homeland Security that establishes employment authorization, even though the notice states it is not evidence of employment authorization.
For the notice to be acceptable, it must include a Notice Date from Dec. 1, 2019, through and including Aug. 20, 2020, and indicate that USCIS has approved the employee’s Form I-765, Application for Employment Authorization. The last day that both new and current employees may present this notice to complete Form I-9 is Feb. 1, 2021. New employees will also need to present an acceptable List B identity document.
Employers who entered a Dec. 1, 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’ forms 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 Feb. 1, 2021, employers must reverify employees who presented this Form I-797 as a List C document. These employees must present new evidence of employment authorization -- either their new EAD or any other acceptable documentation they choose -- from either List A or List C.
Last Reviewed/Updated: 11/23/2020"
"Form I-9 Verification During EAD Production Delays Due to COVID-19
Due to the extraordinary and unprecedented COVID-19 public health emergency, the production of certain Employment Authorization Documents (Form I-766, EAD) is delayed. As a result, employees 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 an applicant of approval of an Application for Employment Authorization (Form I-765) as a Form I-9, Employment Eligibility Verification, List C #7 document that establishes employment authorization issued by the Department of Homeland Security pursuant to 8 C.F.R. 274a.2(b)(1)(v)(C)(7), even though the Notice states it is not evidence of employment authorization. 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.
THE I-797 NOTICE OF ACTION DESCRIBED ABOVE DOES NOT PROVE EVIDENCE OF IDENTITY OR SERVE AS A LIST A DOCUMENT ESTABLISHING BOTH IDENTITY AND EMPLOYMENT AUTHORIZATION OR A LIST B DOCUMENT ESTABLISHING IDENTITY FOR FORM I-9 PURPOSES.
For Form 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. The Lists of Acceptable Documents is on Form I-9. Current employees who require reverification can present this Form I-797 Notice of Action as proof of employment authorization under List C.
By December 1, 2020, employers must reverify employees who presented this 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.
We encourage employers to accept new EADs presented by employees as soon as they receive them from USCIS prior to December 1, 2020, to satisfy the reverification requirement. However, it is the employees’ choice whether to present their new EADs, or a different document from either List A or List C.
Last Reviewed/Updated: 08/19/2020"