Due to EAD Production Delays, Employers Are Allowed to Accept EAD Approval Notice for Form I-9 Compliance

Due to the production delays of certain Employment Authorization Documents (EAD, Form I-766), USCIS announced that employers can accept EAD approval notices for Form I-9 verification. 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 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,
  • Employees 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 December 1, 2020.
  • 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.
  • Current employees who require reverification can present a Form I-797 Notice of Action as proof of employment authorization under List C.
  • By December 1, 2020, 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.
  • USCIS encourages 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.

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.  

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