Employers May Temporarily Use Form I-797 to Verify Employment Eligibility on Form I-9

By: Joy Dungca

The production of certain Employment Authorization Documents (EAD) remains delayed due to the COVID-19 pandemic. Through February 1, 2021, certain employees may use an EAD approval notice as a List C document for employment verification purposes during the Form I-9 process. This Form I-797, Notice of Action for Form I-765 can only be used for employment verification purposes if it indicates that the EAD application has been approved and the notice date is between December 1, 2019 and August 20, 2020. After February 1, 2021, employers may no longer accept Form I-797 for employment verification. Previously, this exception was valid through December 1, 2020. It was recently extended due to the ongoing impact of the COVID-19 pandemic. 

An employee who submits an EAD approval notice to demonstrate their employment eligibility for Form I-9 will also need to present a List B document that establishes their identity, such as a state-issued driver’s license or ID card.

Employers who entered a December 1, 2020 expiration date on a Form I-9 must update the forms to document continued employment. Employers should write “Employment Authorization Ext until 02/01/2021” in the Additional Box in Section 2 of Form I-9.

Employee Reverification Process

Employers will need to re-verify employees who use Form I-797 by February 1, 2021 using new evidence of employment authorization from either List A or List C. These employers should review and document new EADs from employees as soon as they are available before February 1, 2021. However, employees may choose whether they want to submit their new EAD or another form of proof from List A or C.

Conclusion

For help complying with changing immigration regulations during the coronavirus pandemic, please contact your trusted Chugh, LLP attorney.