Talent Acquisition and Onboarding December 18, 2020

Form I-9 Employment Authorization Document Reverification Extension

By Jason Fry

USCIS previously issued a notice indicating certain Forms I-797, Notice of Action, are acceptable for temporary use as a Form I-9 Employment Authorization Document through Dec. 1, 2020. 

Form I-9 Employment Authorization Document Validity Extension

Extension of Validity of Certain Forms I-797 Due to Continued Employment Authorization Document (EAD) Delays

The U.S. Citizenship and Immigration Services (USCIS) previously issued a notice indicating that certain Forms I-797, Notice of Action, are acceptable for temporary use as a Form I-9 Employment Authorization Document through Dec. 1, 2020. The Department of Homeland Security (DHS) is now extending the validity of these Forms I-797 through Feb. 1, 2021.

Form I-797, Notice of Action EAD Extension

What Does the Extension of EAD Validity Mean?

Because of the COVID-19 pandemic, the production of certain Employment Authorization Documents (Form I-766, EAD) has been delayed.  As a result, employees may use Form I-797, Notice of Action (Notice), with a Notice date on or after Dec. 1, 2019 through and including Aug. 20, 2020, informing an applicant of approval of an Application for Employment Authorization (Form I-765) as a Form I-9, Employment Eligibility Verification, List C document that establishes employment authorization issued by DHS. It's important to be aware the Notice states it's not evidence of employment authorization but DHS is temporarily allowing under these circumstances. The last day new and current employees may use this notice for Form I-9 is Feb. 1, 2021. New employees will also need to present an acceptable List B document.

Additional Steps for Form I-9 Employment Authorization Extension and Reverification

New steps in the November 23 guidance from DHS instructs employers to make a note on Form I-9 for the extended use of Form I-797, Notice of Action. "Employers who entered a Dec. 1, 2020 expiration date on Form I-9 for employees who presented this Form I-797 as a new hire or for reverification as directed in the original notification must update their employees' forms to document continued employment authorization," states the Notice. DHS instructs employers to:
  • "Write Employment Authorization Ext Until 02/01/2021 in the Additional Information box in Section 2 of Form I-9.
  • By Feb. 1, 2021 employers must reverify employees who used the Form I-797 as a List C document."

Extended Expiration Dates for State IDs and/or Driver’s Licenses

In addition to the extension of Form I-797 many states had auto-extended expiration dates for State ID cards and/or driver's licenses due to the COVID-19 pandemic. We covered this topic in our previous blog post, DHS Announces Adjustments for Form I-9 and E-Verify Processes.
 

Webinar: I-9s for Today's HR, Onboarding in a Virtual World

View our on-demand webinar for insight on some of the temporary Form I-9 guidance related to COVID-19, plus key considerations for management of Section 2, now and in the future.