COVID-19 has caused unprecedented delays in the production of certain employment authorization documents. Both the DHS and ICE have continued with their department’s flexibility relative to I-9 documentation and completion and extended such flexibility into the future.
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I-765 Approval Notices
In response to such delays, the USCIS is allowing employers to accept Form I-797, Notice of Action with a date on or after December 1, 2019 through August 1, 2020 to update Form I-9, Employment Eligibility Verification and show continued work authorization.
Prior to this announcement, the USCIS did not allow employers to accept the Form I-797 Notice of Action, which indicates an I-765, Application for Employment Authorization had been approved, for purposes of I-9 completion. Instead, employers could only accept a valid Employment Authorization card.
Employers seeking to take advantage of the I-9 flexibility must ensure the following:
- The I-797, Notice of Action must explicitly indicate it is an approval of an Application for Employment Authorization (Form I-765);
- If the first requirement is met, the I-797 can be listed as a List C document—specifically under item number seven.
This flexibility is valid only through February 1, 2021. Employers must also keep detailed records and update an employee I-9 once they receive their employment authorization cards. Employers should also be aware this flexibility does alter the employee’s duty to establish his or her identity by presenting a document from with List A or List B.
Remote I-Completion Extended
ICE also extended its May 19, 2020, guidance allowing remote completion of the Form I-through the end of the year. As a reminder, ICE has deferred the in-person review of original documents during the pandemic. The waiver only applies to offices that are operating remotely. Employers must promptly comply with their normal I-9 requirements as soon as employees return to the office. The remote completion authorization is set to expire on December 31, 2020. I would imagine, given the current spike in positive test results, and employers continuing to operate business remotely, that ICE will once again extend this deadline, but only time will tell.
Employers are urged to closely monitor the DHS and ICE websites for additional information about compliance, potential extensions to the above, and when normal operations must resume.
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About the Author: Alejandro Pérez is a partner at Jaburg Wilk. Fully bilingual, Alejandro assists employers of all sizes with labor and employment law issues. In addition to representing clients in litigation, Alejandro provides advice and counsel on HR decisions; conducts sensitive workplace investigations; drafts and reviews employment policies, handbooks, and agreements; and trains workforces on a variety of aspects of employment law.