Revised Form I-797, Notice of Action, and Changes to Form I-9 List A Documents


Emptech's founder, Jeff Aleixo


Jeffrey Aleixo

Form I-797 Notice of Action I-9 Compliance

Expired Permanent Resident Cards can create various difficulties for immigrants in the United States who are lawful permanent residents even under normal circumstances but especially due to the delays in immigration procedures caused by the COVID-19 pandemic. Given these complications and increases in processing time necessary to replace permanent resident cards, United States Citizenship and Immigration Services (USCIS) announced issuing a revised Form I-797, Notice of Action. This change from the previous procedure will apply to all Form I-90 applications filed beginning in January 2021.

Revised Form I-797 notice will serve as a receipt notice for the I-90, but also extend the validity of a Permanent Resident Card (PRC) or Green Card for 12 months from the expiration date on the front of the card. As a result, certain lawful permanent residents will have documentation for completing Form I-9, Employment Eligibility Verification, as well as for travel and identity purposes.

This change applies to all Form I-90 applicants who possess a green card and have not yet been issued biometrics notice. On the other hand, applicants who have already been sent a biometrics appointment notice will still be issued an extension sticker at the appointment.

What Is Form I-90

Form I-90, Application to Replace Permanent Resident Card, is the application used to renew or replace a green card. Permanent residents file this form with the USCIS if their 10-year green cards have expired or will be expiring in the next six months, or their green cards have been lost, stolen, damaged, or completely destroyed. However, permanent residents with a conditional green card, which expires two years after being issued, need to follow a different process to replace it with a permanent green card that is valid for 10-year renewable periods.

Previously, USCIS Application Support Centers issued an I-551 sticker on the back of a PRC as temporary evidence of status as a permanent resident for the interim period between the filing of Form I-90 and the issuance of a new PRC. In late October, USCIS added the example of a Permanent Resident Card, with a USCIS issued sticker extending its validity, to the List A documents samples illustrations. Now, the revised Form I-797 replaces that process.

Learn how to properly handle Form I-9 verification, retention, and storage to avoid common audit mistakes, ensure compliance, and prevent costly fines.

Changes to List A Documents

According to the USCIS announcement, employers can treat the combination of an expired green card together with the revised Form I-797 as an acceptable List A document. Accordingly, they should pay attention that this is different from the M-274 6.1 guidance treating an expired PRC and Form I-797 as a List C document, used to provide temporary work authorization.

Apart from recording Form I-797 as a List A document, in combination with an expired PRC, employers are instructed to enter the following information from the document combination in Section 2 under List A:

  1. In the Document Number field, employers enter the card number provided on the expired PRC,
  2. In the Expiration Date field, employers enter the date that is 12 months from the expiration date on the expired PRC, and
  3. In the Additional Information box, employers write “PRC Ext” and the I-90 receipt number from Form I-797.

Reverification Is Not Necessary

If Lawful Permanent Residents present the document combination or the legacy sticker, reverification is not necessary. Therefore, Lawful Permanent Residents should not be reverified if they have presented a valid List A document, including a PRC automatically extended by Form I-797. Also, reverification is not required if the employee has presented valid List B and C documents.

Employers should only reverify a Lawful Permanent Resident or Conditional Resident’s employment authorization when the employee presents one of the temporary Forms I-551 listed below:

  1. List A receipt: The arrival portion of Form I-94, Arrival/Departure Record, containing an unexpired temporary I-551 stamp and a photograph of the employee,
  2. List A document: A foreign passport with either a temporary I-551 stamp or I-551 printed notation on a machine-readable immigrant visa (MRIV), or
  3. List C document: An expired Form I-551 with a Form I-797, Notice of Action, that indicates USCIS has extended the card’s validity.

Therefore, employers need to correctly identify whether the I-797 document combination is categorized as List A or List C document. Taking this into consideration, it is important to make a distinction between a List C expired I-551 card and Form I-797 combination, which is considered a temporary document requiring reverification, and the new List A document.

Maintaining Form I-9 Compliance

The new procedure to extend green card validity is one of many changes triggered by complications resulting from the COVID-19 pandemic. For example, the USCIS has relaxed its rules regarding the in-person inspection of employee documents when filling out a Form I-9 several times. The latest extension will last until January 31, 2021. While it is impossible to say if ICE is going to extend these rules again, employers should make sure to stay aware of the current state of the law so they can be in compliance at all times.

U.S. Immigration and Customs Enforcement (ICE) is expected to significantly expand its I-9 inspection efforts once the pandemic nears its end, looking for errors made under the relaxed rules as well as other common I-9 mistakes. Therefore, it is critical that employers closely follow I-9 verification rules, review their I-9 forms, and regularly conduct self-audits. Furthermore, I-9 compliance can be significantly simplified with automated I-9 verification. Such an approach transforms manual procedures into an automated online process with electronic forms and documents, e-signatures, and audit trails. Thus, employers stay compliant and avoid thousands of dollars in fines for I-9 errors.

Solve Form I-9 compliance issues with an electronic Form I-9 system fully integrated with E-Verify and improve accuracy while maintaining compliance.
The information contained within this document is general in nature and is not intended and should not be construed as legal, HR, or opinion by Emtpech. Please contact Emptech or another subject matter professional prior to acting on any information provided in this document. We recommend caution when contemplating acting on any information provided in this document as it may not be applicable or suitable for the specific viewer’s needs. Emptech assumes no obligation to update any viewer of any changes in law, rule, or regulation that could affect the information contained herein. Without express written permission from Emptech, no part of this document may be reproduced, retransmitted, or otherwise redistributed in any form or by any means, including, but not limited to photocopying, electronic, facsimile transmission, or using any other information storage and retrieval system.