Using Form I-765 Approval Notice for I-9 Employment Eligibility Verification Due to COVID-19 Pandemic


Emptech's founder, Jeff Aleixo


Jeffrey Aleixo

Form I-765 Employment Eligibility Verification

The unprecedented public health emergency created due to COVID-19 has caused different businesses and government agencies to change and adapt their operations. Since the emergence of the Coronavirus pandemic, there have been significant delays affecting the production of certain Employment Authorization Documents also known as EAD cards. These documents permit an applicant to obtain lawful employment in the United States, a driver’s license, and other important documentation such as a Social Security number.

In response to this situation, USCIS issued guidance providing employers and employees some flexibility to mitigate the range of I-9 employment eligibility verification issues and minimize interruptions in employment authorization due to delayed card production. As a result, employers can accept a Form I-765 Approval Notice, also known as Form I-797, Notice of Action, for Form I-9 employment eligibility verification purposes in lieu of an EAD Card, also known as Form I-766. However, employers who accept Form I-765 Approval Notice specifically approved for I-9 employment eligibility verification purposes, need to reverify the employees presenting such documents no later than December 1, 2020.

Temporary Flexibility in Form I-9 Completion

Although the Form I-765 Approval Notice states that it is not evidence of employment authorization, the USCIS policy creates a limited exception. This allows employers to use the Form I-765 Approval Notice as a Form I-9 List C document, issued by the Department of Homeland Security to establish I-9 employment eligibility. Employees may present a Form I-797, Notice of Action showing approval of their Form I-765, Application for Employment Authorization, with a Notice date on or after December 1, 2019, through and including August 20, 2020.

Prior to August 19, 2020, the I-797 Notice of Action indicating that the I-765 Application for Employment Authorization had been approved was not accepted for completion of the Form I-9. Instead, Form I-9 could only be completed with a valid Employment Authorization Card. EAD cards are often granted for two year periods. Since the processing of the I-765 Application for Employment Authorization can take many months to adjudicate, foreign nationals relying on the EAD for eligibility to work had to be removed from payroll if the EAD card did not arrive before the expiration of their existing EAD.

As background to Form I-765 Approval Notice temporary policy, this summer USCIS was involved in a class-action lawsuit. The lawsuit claimed that 75,000 foreign nationals with approval to work in the U.S. risked being unable to obtain or maintain employment due to USCIS’s failure in printing new employment authorization cards. The lawsuit also alleged that USCIS made a deliberate and intentional decision to terminate its document printing contract with a third party without having any intention or plan to replace that printing contract. On the other side, USCIS has maintained that these delays result from COVID-19 disruptions. 

Get all the necessary information about Form I-9 and learn how to easily achieve compliance with employment eligibility requirements while maximizing efficiency and minimizing mistakes.

Further Rules for Form I-765 Approval Notice

The expanded I-9 Form flexibility applies if the I-797 Notice of Action states that it is an approval of an Application for Employment Authorization. If presented with an acceptable Form I-765 Approval Notice, employers are alerted that this Form I-765 neither serves as a List A document establishing both identity and employment authorization, nor a List B document establishing identity. Therefore, employers need to ensure that new hires who present a Form I-765 Approval Notice as a List C document also present an acceptable List B identity document during the onboarding process.

Current employees who require reverification can present the Form I-765 Approval Notice as a List C document that establishes employment authorization. By December 1, 2020, these employees need to present employers with new evidence of employment authorization from either List A or List C. Employers are reminded that they have to allow employees to choose whether to present their new EAD as a List A document, or a different document from either List A or List C.

Remote I-9 Employment Eligibility Verification

As employers and employees continue to take physical distancing precautions in response to COVID-19, the U.S. Immigration and Customs Enforcement (ICE) has been extending remote I-9 Employment Eligibility Verification several times. The latest extension of the Form I-9 flexibility rules is set to expire on November 19, 2020, as long as employers and workplaces operate remotely. If employees return to the office, employers have to comply with the standard Form I-9 requirements.

Under normal circumstances, immigration regulations require employers to physically inspect a new employee’s identity and work authorization documents when completing Form I-9, but ICE has temporarily suspended the physical inspection requirement due to COVID-19. As a result, remote verification of identity documents is allowed since March 19, 2020.

Employers who operate remotely do not need to review employees’ identity and employment authorization documents in-person with the employee. Instead, employers are required to:

  • Inspect employees’ documents over a video link, email, fax, or other electronic means, and complete Section 2 of Form I-9 within three business days of hire, and
  • Retain copies of any documents inspected remotely and enter COVID-19 as the reason for the physical inspection delay in Section 2 Additional Information field.

Once normal operations resume, employers have three business days to physically examine the same documents previously reviewed electronically or remotely. After the physical examination of documents, employers should add documents physically examined with the date of inspection to the Section 2 Additional Information field on the Form I-9, or to Section 3.

Adhering to Changing I-9 Employment Eligibility Requirements

COVID-19 delays have caused different hardships for employers, but also created additional obstacles for employees in the process of finding employment during an already difficult economic time. Therefore, the USCIS approval of Form I-765 Application for Employment Authorization in order to qualify for lawful employment is a significant relief for employees. However, employers are encouraged to maintain a list of all new and current employees who present a Form I-765 Approval Notice as List C document under the temporary USCIS policy in case of a government worksite inspection occurs.

Due to current working conditions under COVID-19 restrictions, employers should pay close attention to changes regarding employment eligibility verification policies. As these temporary changes are useful and complex, employers should also consider outsourcing I-9 employment eligibility verification. Such an approach enables employers to stay informed on immigration-related policy updates that can affect businesses and ensure accurate I-9 processing within stipulated timelines followed by higher security, compliance, and easier document processing.

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