Along with extending its flexibility in allowing virtual Form I-9 employment verification until December 31, 2020, USCIS is also continuing its flexibility with regard to long-pending Employment Authorization Document (EAD) applications. USCIS expected that this interim solution would only be necessary through December 1, 2020, but the delays in producing EAD cards have continued.

As a result, USCIS announced that certain individuals may continue to present Form I-797, Notices of Approval, for I-9 purposes until February 1, 2021.  New employees and those needing to reverify their employment authorization may continue to present Form I-797 EAD approval notices instead of EAD cards if:

  • The Form I-797 indicates that the EAD has been approved for at least three months;
  • The Form I-797 has a Notice Date between December 1, 2019 and August 20, 2020; and
  • The employee can present (or has previously presented) an acceptable List B identity document.

The approval notice should be entered on the Form I-9 as a List C document with USCIS as the issuing authority and the 13-digit receipt number as the document number. The expiration date should be listed as February 1, 2021 and reverification should be conducted by that date or sooner if the employee receives their EAD card. Absent any further extensions, by February 1, 2021, the employee will need to present either a List A or a new List C document.

For any employees verified or reverified on the basis of the earlier USCIS guidance who still do not have EAD cards, an extension until February 1, 2021 should be noted in the Additional Information box in Section 2 of Form I-9.

For any questions regarding the Form I-9 process including best practices regarding flexibility in the E-Verify or electronic I-9 database context, Jackson Lewis attorneys are available to provide assistance and guidance.