Temporary but Welcome Relief for Foreign Nationals Waiting for their EAD Cards

Foreign nationals have been approved for work authorization in due course but have not received their EAD cards for several months.  There have been delays since December last year.

On August 19, 2020, the USCIS announced that until December 1, 2020 employers will be permitted to accept certain Approval Notices (Form I-797, Notice of Action) showing approval of an Employment Authorization Document (EAD) as a List C employment authorization document for Form I-9 compliance.  Employees may present their EAD Approval Notice as a List C document provided it was issued between December 1, 2019 and August 20, 2020.  Employers may accept this despite the language in the notice that says it cannot be used as evidence of employment authorization.  New employees must also provide a valid List B document as identity proof.

However, it is important to note that employers must re-verify employment authorization at a subsequent date for those employees relying on their EAD Approval Notices.  Employers must ask employees to provide new evidence of employment authorization as part of the re-verification process.

This is welcome relaxation as many foreign nationals have been waiting for several months to get their physical EAD cards even after they have been approved.  The USCIS claims that this is a temporary measure in the face of the “extraordinary and unprecedented COVID-19 public health emergency.”

The impending furlough of USCIS staff could further impact the issuance of EAD cards.  Please see the following section.

Further Delays at the USCIS

Several weeks ago, the USCIS had announced that it would furlough more than 70% of its staff from August 3, 2020, due to a shortage of funds.  This date was postponed to August 30, 2020, as the Senate Appropriations Committee had indicated they will fund the USCIS.  However, Congress has not yet funded the USCIS.  Hence the furloughs are imminent.  However, the USCIS has not indicated which of its services, divisions, or offices will be impacted by these furloughs.  Petitioners, applicants, and beneficiaries seeking immigration actions should brace for delays, which according to different reports may last from 30 days to 90 days.  Petitions that can be premium processed should be upgraded to avail of this service.  There is an indication that fraud detection and background checks would be greatly impacted, while in-person interviews with immigrants would be curtailed and that there would be mounting delays adding to the already backlogged cases.

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