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New I-9 requirements during COVID: Approval Notices for Employment Authorization Documents (EADs) acceptable through November 30, 2020
Posted on Aug 26 2020
(Current as of August 26, 2020)
This information is not legal advice. Consult a qualified immigration attorney for advice about your situation.
Between now and November 30, 2020, immigrants and refugees who have been approved for an Employment Authorization Document (EAD) also known as a work permit can use the USCIS I-765 approval notice (Form I-797 Notice of Action) to prove they are eligible to work if the date on the notice is between December 1, 2019 and August 20, 2020.
Importantly, the USCIS I-765 approval notice only proves work eligibility. It does not prove identity, which is also part of the I-9 process. Therefore:
- If an employee is new and is completing the I-9 process for the first time, the employee must also produce a List B document proving identity (See page 3 of the I-9 form).
- If an employee is already working for an employer and their EAD has simply expired, the employee need only produce the USCIS I-765 approval notice to show they are still permitted to work. The employee cannot be asked to produce a document proving their identity once again.
By December 1, 2020, employers must obtain a document from employees who produced a USCIS I-765 approval notice to prove work eligibility. When an employer goes through this process, it must accept any List A or List C document from the employee to prove work eligibility. An employer cannot require an employee to produce a specific kind of List A or C document.
What should employees know about going through the I-9 Process with employers at this time?
Many employers may not be aware of this change. So, if you are producing a USCIS I-765 approval notice for the I-9 process, print out a copy of this announcement from USCIS and provide it to your employer along with the copy of your USCIS I-765 approval notice.
If your employer refuses to accept the USCIS I-765 approval notice as proof of your work eligibility, you can contact:
- Office of Unfair Employment Related Immigration Practices at 1-800-255-7688 (1-800-237-2525, TTY for the hearing impaired).
- Southern Minnesota Regional Legal Services at 1-888-575-2954
- Volunteer Lawyers Network at 612-752-6677
- Immigrant Law Center of Minnesota if you are a current client at 651-641-1011
Useful Background
What is the I-9 Process?
Employees are required to complete Form I-9 Employment Eligibility Verification to show their identity and their eligibility to work in the United States. To do this, employees have one of two options according to the form instructions:
- Option One: Produce one document that proves identity AND work eligibility (“List A” documents)
- Option Two: Produce two documents, one document that proves identity (“List B” documents) and another document that proves work eligibility (“List C” documents)
An employer must accept any List A document OR a List B and a List C document. An employer cannot require an employee to produce a specific kind of List A, B, or C document.
What are the usual requirements for an immigrant or refugee who is permitted to work and has an employment authorization document (EAD)
An EAD proves identity AND work eligibility. Most immigrants and refugees who have an EAD produce their EAD during the I-9 Process to prove their identity AND their eligibility to work.
An EAD is granted for a specific period of time and must be renewed before it expires. When an EAD expires, an employer is required to ask an employee to produce a document that shows that the employee is still permitted to work in the United States.
Usually, a USCIS I-765 approval notice is not acceptable to show the employee is still permitted to work in the United States. In fact, the notice says it is not evidence of employment authorization. Instead, the actual EAD must be produced. However, as discussed above, a temporary exception has been made to this rule between now and November 30, 2020.