The production of certain Employment Authorization Documents (EAD) have been delayed due to to COVID-19.  Today, USCIS announced that due to these production delays, employees may use Form I-797, Notice of Action, with a Notice date on or after December 1, 2019 through and including August 20, 2020 for Form I-9 employment eligibility verification purposes.  Specifically, employees may present Form I-797 informing the applicant of approval of an Application for Employment Authorization (Form I-765) for purposes of satisfying Form I-9, List C #7 as a document that establishes employment authorization issued by the Department of Homeland Security.   This is allowed during the specified time period even though the applicant’s Form I-797 Notice of Action states it is not evidence of employment authorization.  Employees may present their Form I-797 Notice of Action showing approval of their I-765 application as a Form I-9 List C document through December 1, 2020.

Employers and employees should note the I-797 Notice of Action does not serve as a Form I-9 List A document (a document establishing both identity and employment authorization) OR a Form I-9 List B document (a document establishing identity).   For new hire scenarios, an employee who presents a Form I-797 Notice of Action described above must also present a valid List B document.  For existing employees requiring reverification, the employee may present Form I-797 Notice of Action described above for List C purposes.

By December 1, 2020, employers must reverify employees who presented Form I-797 Notice of Action as a List C document.  This means these employees will need to present the employer with new evidence of employment authorization consistent with the Form I-9 List of Acceptable Documents from List A or List C.  It is the employees’ choice whether to present their new EAD or a different document from List A or List C.

Employers are reminded to maintain Form I-9 compliance throughout the COVID-19 public health emergency.


Ali Brodie is a Partner and the Co-Chair of the Immigration and EB-5 Immigrant Investor Practice Groups of Fox Rothschild LLP and has extensive experience in corporate immigration law and compliance.  Based in Fox Rothschild’s Los Angeles, California and Denver, Colorado offices, Ali’s practice spans the United States and reaches Consulates worldwide.  You can reach Ali at (303) 446-3854 or at