Due to the extraordinary and unprecedented COVID-19 public health emergency, the production of certain Employment Authorization Documents (EAD) has been delayed. USCIS issued new guidance on August 19, 2020, authorizing employees to use Form I-797, Notice of Action, with a notice date on or after December 1, 2019, through and including August 20, 2020, stating the approval of an Application for Employment Authorization (Form I-765) as a Form I-9, Employment Eligibility Verification, List C #7 document. This document 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, and employers may accept it.
It is important to note that the I-797 Notice of Action does not prove evidence of identity or serve as (i) a List A document establishing both identity and employment authorization or (ii) a List B document establishing identity for Form I-9 purposes.
For Form I-9 completion, employees who present the above Form I-797 Notice of Action for new employment must also present their employer with an acceptable List B document that establishes identity. 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.
Originally published 21 August, 2020
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