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Changes to I-9 Employment Eligibility Verification Requirements During COVID-19

In March 2020, we reported on changes from Immigration and Customs Enforcement (ICE) allowing for more flexibility in the I-9 Employment Eligibility Verification process in light of COVID-19.  Since then, additional issues at the government level led to delayed production of employment authorization documents (EAD cards) that prevented employees from verifying their work authorization even with the new flexible system. 

ICE extends period for temporary virtual verification exception

As we reported in March, due to the need for remote working arrangements triggered by COVID-19, ICE issued guidance temporarily waiving the requirement for in-person I-9 verifications, and instead allowing for virtual verifications for some employers.

The original flexibility guidance was issued for 60 days and was set to expire on May 19, 2020.  As the pandemic continued and more and more workplaces were switching to telecommuting, ICE extended the guidance several times in 30-day increments.  As of the date of this article, the most recent extension of the I-9 virtual verification exceptions for eligible employers is in effect until September 19, 2020.

Additional details regarding the extent of the virtual verification exception and which employers are eligible may be found in our original article announcing this temporary measure.  Once the temporary waiver for in-person verification no longer applies, employers must ensure that they comply with the correct procedure for in-person verification and annotate the virtual I-9s accordingly.

USCIS authorizes employers to accept some EAD application approval notices as evidence of work authorization

Another temporary change came to the types of documents that an employer may accept as proof of work authorization.  Generally, a notice from the U.S. Citizenship and Immigration Services (USCIS) informing that an application for employment authorization was approved is not an acceptable document for purposes of the I-9 Employment Eligibility Verification.  Instead, the employee would be required to present either the Employment Authorization Document (EAD) card as a List A document, or other combination of a List B and List C document from the I-9 List of Acceptable Documents. 

Prior to COVID-19, applicants would usually receive the EAD card in the mail within a couple of weeks of approval.  However, an unprecedented USCIS budgetary shortfall in recent months caused USCIS to experience severe delays in generating the EAD cards, in many cases preventing employees from being able to satisfy I-9 requirements for weeks or months, despite the fact that they were otherwise authorized to work legally. 

Therefore, USCIS recently announced that employers may accept an I-797 Notice of Action, Approval Notice on an I-765 Application for Employment Authorization as temporary evidence of employment authorization, if the notice was issued between December 1, 2019 and August 20, 2020.  The EAD approval notice corresponds to List C item #7 on the I-9 List of Acceptable Documents and should therefore be recorded as a List C item, in combination with a separate List B document verifying identity.  An I-797 Notice of Action may not be used by itself as a List A document, as it does not satisfy the employee’s identity.

As of the date of this article, employers may accept the I-797 Notice of Action (EAD approval notice) as a List C document until December 1, 2020.  By that date, employers must re-verify employees who presented the I-797 Notice of Action and ensure that they present new evidence of work authorization from either List A or List C from the customary I-9 requirements.

We will continue to monitor the I-9 changes and will provide updates as needed.  For any questions regarding to workforce immigration compliance, immigration benefits or applications, please do not hesitate to contact us at (608) 252-9291 or rvo@dewittllp.com.  

About the Author

Raluca Vais-Ottosen has assisted numerous clients with Immigration matters ranging from family-based and individual Immigration applications, to employment related visas and I-9 employment eligibility verification issues. In addition to her Immigration practice, she also has an extensive background in Employment Law. She assists companies in a number of areas, including but not limited to claims of workplace discrimination, harassment and retaliation, termination and constructive discharge, workplace investigations by State and Federal agencies, as well as Employment Litigation.

Contact Luca by email or by phone at (608) 252-9291.

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