Immigration Updates for the Week of August 17th: EAD Delay & USCIS Furlough

EAD Card Delay: Approval Notice Temporarily Allowed for I-9 Purposes 

This is an update to our previous article: Delayed Production of EAD Cards

Due to delays in the production of Employment Authorization Documents (EADs), employers may temporarily use Form I-797, Notice of Action (Approval Notices) informing an applicant of approval of an EAD, as evidence of employment authorization (Form I-9, List C #7 document).  In other words, affected employees may temporarily work with an USCIS approval notice and not wait for the actual EAD card. 

Unfortunately, this temporary solution is limited to I-797, Notice of Action (Approval Notices) with a notice date on or after December 1, 2019 through and including August 20, 2020.

Employers utilizing this temporary solution must note the following:

1. I-797 Notice of Action does not prove identity so employers must also require a List B document as evidence of identity when completing form I-9.
2. I-797 Notice of Action can only be used as a List C document until December 1, 2020.
3. By December 1, 2020, employers must reverify employees who presented I-797 Notice of Action as a List C document. These employees will need to present their employers with new evidence of employment authorization from either List A or List C.

To see the USCIS announcement: https://www.uscis.gov/i-9-central/form-i-9-verification-during-ead-production-delays-due-to-covid-19

Furlough of USCIS Workers Still Looms

As reported in our July 7th Update, a budget shortfall for USCIS may result in a furlough of 13,000 staff members (nearly 68% of its workforce).

As of today, Congress has yet to fund USCIS with the $1.2 billion loan USCIS says it needs, and USCIS is moving forward with its furlough plan at the end of August. Furloughs would last a minimum of 30 days, but could extend to as long as 90 days.

There has been little guidance on who, specifically, would be furloughed; but it is expected it will cause delays in every aspect of immigration, including employment-based immigration cases. Agency employees have said fraud detection and background checks would be greatly impacted, in-person interviews with immigrants would be curtailed and already record-high backlogs would continue to grow.