A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Tuesday, September 8, 2020

Where is my EAD Card?

Many foreign nationals find themselves without proof of employment eligibility since June of this year.  For those who are still waiting for their EADs to arrive in the mail, they may present the I-797 approval notices to their employers as proof of employment eligibility for the time being.

In June 2020, USCIS announced that it had ended its contract with an outside company for production of lawful permanent resident (LPR) cards (aka "green cards") and also employment authorization documents (EADs).   Consequently, the agency has not been able to produce green cards and EAD cards fast enough for applicants. As of July 2020, there was a backlog of more than 115,000 green cards and EAD cards, according to a DHS spokesperson. 

To address this issue, USCIS announced on August 19, 2020 that it is allowing employers to accept the official approval notice of an application for EAD, Form I-797, Notice of Action, as proof of an employee's employment eligibility.  The approval notice must be dated between December 1, 2019 and August 20, 2020.  

Generally, an employer must obtain both proof of identity and proof of employment eligibility from an employee to complete the Form I-9, Employment Eligibility Verification.  Some documents such as the  green card and EAD card can serve as evidence of both an employee's identity and employment eligibility.   

Under the new policy, the EAD approval notice can only be presented as proof of employment eligibility, the employer must still request for documents establishing the identity of new employees.  For existing employees, proof of identity document should have been provided already.  

It should be noted that this exception is not listed in the Form I-9 instructions or the regulation.  Some employers may not be aware of it and careful explanation must be provided.

This limited exception is only a temporary measure valid through December 1, 2020.  For employees who have previously presented a Form I-797 approval notice instead of an EAD, they must provide a valid document to prove their employment eligibility by December 1, 2020.  Such documents can be an EAD card or other valid documents.  

USCIS has agreed, as settlement in a federal lawsuit, to produce and mail all backlogged EAD cards to applicants by October 1, 2020.  

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