The COVID-19 pandemic has caused unprecedented delays in immigration law, particularly for those seeking a new or renewed employment authorization document (EAD). Recently, an Ohio federal court issued a temporary restraining order against the U.S. Citizenship and Immigration Services (USCIS) requiring the agency to print work permit cards, such as EADs, within seven days. The court recently extended the restraining order until August 24 as the sides come to terms on a “consent decree,” which is essentially a legal term for a peaceful resolution.
In the interim, USCIS is still backlogged on printing EADs, but will allow those still awaiting a physical card to use an I-797 Notice of Action form to complete the I-9, Employment Eligibility Verification, form instead of their EAD (as is normally required). The I-9 form verifies the identity and employment authorization of individuals hired for employment in the United States. Even permanent residents and citizens fill out I-9s when hired for new jobs. For immigrant or non-citizen workers, the EAD would typically fulfill the List C document that employees are required to present when completing an I-9. Since USCIS is so behind on printing and delivering EADs, the agency offered this work around.
For those who do not have a physical, up-to-date EAD, the I-797 form can be used to complete an I-9. To comply with USCIS standards, employees must present an I-797 showing approval of their I-765 application, dated after December 1, 2019 through August 20, 2020. This will satisfy the List C document requirement. However, to fully complete an I-9, employees will still need to show a List B document establishing identity, such as a school id card with a photograph or a driver’s license issued by a state. Check Form I-9 for a full list of acceptable List B documents.
The August 24, 2020 preliminary injunction hearing should hopefully bring more clarity, and potentially finality, to this issue for the many immigrant workers caught in this predicament. EADs should be finding their way to workers soon, but if not, USCIS has at least provided this alternate solution for those needing to complete an I-9.
