This article tracks two topics first the I-9 Form verification flexibility by US Department of Homeland Security (DHS) and second the USCIS guidance on EAD card flexibility for I-9 compliance. These are due to the delays with EAD ( Employment Authorization Document) Card Production by USCIS.
In this article, we will look at the background and the latest news updates, including who all does this apply to, what are the benefits, restrictions. We continue to update this article.
Firstly, let’s look at the background and requirements for I-9 compliance requirements.
What is I-9 Compliance Requirement? Paperwork Verification ?
As per law, an employer who hires anyone in US is required to complete I-9 Form (Employment Eligibility Verification). The goal of this is to verify employee’s identity and work authorization. It is to prevent illegal or undocumented workers. The I-9 form requires that employee verify a set of documents that are related to identity, visa status and work authorization.
They are called as List A, List B and List C in the I-9 form and employer will check for these documents. See below screenshot for these required documents list. If you look at the highlighted text, you can see EAD card requirement that typically applies to H4, L2, F1 OPT & STEM OPT, others.
Physical Presence requirement for I-9 Completion, Verification
As per Section 274A of INA, there are physical presence requirements to complete I-9 form and verify the documents presented. Basically, what it means is that you need to be physically present and and complete the form, and verify the documents in person.
Usually, Employees fill out Section 1 of form I-9 and sign the form. Employer then verifies documents and completes section 2 of the form. All of the verifications and Form I-9 paperwork requirements should happen in the first 3 days of starting the job and should be in person.
Now that we know the background, let’s look at the first topic update from DHS.
DHS / ICE – Compliance Flexibility for Form I-9 during COVID-19
Due to COVID-19 situation, many offices are not open and most of the work is happening remotely. Hence, the physical presence requirement cannot be met during COVD-19. To address this, initially, DHS announced flexibility on March 20th for I-9 compliance saying that employers need not verify the documents physically in presence of employee.
USCIS suggested that the I-9 related document verification can be done remotely over video link, fax or email. They gave guidance to enter “COVID-19” in the I-9 form as reason. Also, once employees resume work at physical offices, they need to verify the documents within 3 days and they update I-9 form saying “documents physically examined”. This flexibility is an important measure during COVID-19 situation for employers to employ workers, safeguard employees from risk of getting COVID-19, and also be compliant.
As per latest update on Dec 23rd, 2020 they are extending the I-9 Compliance Flexibility until January 31st, 2021. See below press release history for official news releases.
ICE I-9 Compliance Flexibility News Updates
- Dec 23, 2020 : ICE Extension of I-9 Flexibility until Jan 31, 2020
- Nov 18th, 2020 : ICE / DHS Extends I-9 Flexibility until Dec 31, 2020
- Sep 14th, 2020 : ICE Extends I-9 Flexibility until Nov 19th, 2020
- Aug 18th, 2020 : ICE I-9 Extension until Sep 18th, 2020
- July 18th, 2020 : ICE I-9 Flexibility until Aug 19th, 2020
- June 16, 2020 : ICE I-9 Flexibility Until July 19th
- May 14th, 2020 : ICE I-9 Flexibility until July 19th
Who does this I-9 compliance flexibility apply to?
This I-9 compliance flexibility applies to everyone who are filling form I-9. It applies to visa holders who have work authorization like H1B, L1, H4 EAD, L2 EAD or F1 students on OPT, STEM OPT, including US Citizens.
Now, let’s look at the second issue on EAD card flexibility from USCIS.
USCIS Delays with EAD Card Production, Flexibility for I-9
Due to COVID-19, USCIS had challenges producing the EAD cards on time and they were not shipping out the EAD cards. This caused so much delays that many could not work and lost jobs without EAD card. Especially, if you are working on H4 EAD, you do not get 180 Days automatic extension.
There was a lawsuit filed by H4 EAD holders for the EAD card delays. As an outcome of the lawsuit, DHS was ordered to print the EAD cards soon. As USCIS is still having challenges to ship out EAD cards, they asked for more time to print EAD Cards with court.
On August 19th, 2020, USCIS issued this new guidance giving flexibility to work without having physical EAD card in hand until December 1st, 2020. Later, on Nov 23rd, 2020, they issued another press release extending the flexibility until Feb 1, 2021. Let’s look at the requirements to use this flexibility now.
Check Nov 23, 200 Press Release by USCIS on the EAD Card Delays and Flexibility
Employees can use form EAD approval Notice for I-9 compliance
USCIS says employees can use I-797 Approval Notice related to their I-765 EAD application for I-9 verification and compliance. This flexibility to use approval notice applies only to EAD approval notices that have Notice Date between December 1, 2019 and August 20, 2020. This flexibility is available until February 1, 2021.
If you look at the EAD approval notice for form I-765, you can see the “Notice Date” on the top as in below screenshot. Also, you need to look for “I-797, Notice of Action” on the top of the form. They clearly say this applies for List C #7 item on form I-9. You can check beginning of article, where there is a screenshot of List C.
USCIS also advises that you need to submit the EAD card once you get it from USCIS by Feb 1st, 2021. This is applicable to new employees or for anyone with renewals and re-verification of I-9.
Who does this EAD Approval notice flexibility apply to?
This applies to everyone who are using form I-9 and using EAD Card as proof for work authorization. It applies to visa holders who have work authorization like H4 EAD, L2 EAD or F1 students on OPT, STEM OPT.
Yes, it applies to anyone using the form I-9 and EAD document. USCIS does not have any restriction given in their guidance.
No, this does not change the regulation. Still all the previous restrictions to work on H4 EAD apply. Only flexibility is for you to work based on Approval notice, if you have applied between Dec 1, 2019 and Aug 20, 2020.
If your EAD application has exceeded processing times in the service center, then you can raise a service request. You can check Current USCIS Processing times. Also, if eligible you can raise H4 EAD Expedite Request.
USCIS has given this flexibility until February 1st, 2021. You will need to submit EAD card to your employer as soon as you get the physical card.
What do you think of the flexibility by USCIS ? Are you still waiting for EAD card ? Share your thoughts in comments below.