Immigration Law Insights

COVID-19 has affected nearly all areas of immigration, including the speed at which the United States Citizenship and Immigration Services (“USCIS”) is able to produce the Employment Authorization Document (“EAD card”).  Thousands of foreign nationals must typically have the EAD card “in hand” to begin or continue lawful employment. In a settlement reached last month (Subramanya v. USCIS, 7/22/20), up to 75,000 foreign employees may find relief from the delayed card production.

USCIS has historically printed and mailed EADs within 48 hours of approval; however, in recent months, thousands have waited or are still waiting months for the arrival of the approved card, despite their applications having already been approved.  The regulations require USCIS to issue an EAD if the application is granted.  While USCIS argued there is no regulatory deadline for which the card must be produced and mailed, the Judge presiding over the case stated, “The fact that there is no statute or regulation setting a timeline for action does not mean that the agency retains unfettered discretion to issue EADs at any time they wish. In fact, courts reviewing similar claims have determined that the absence of a timeline in a statute or regulation means that the court retains jurisdiction to decide whether the delay was unreasonable.”

While there are limited exceptions allowing certain categories to take advantage of a 240-day automatic work authorization extension, many categories of applicants are constrained by the language in the I-797 Approval Notice which reads, “You cannot use this approval notice as proof of your employment authorization.”  The settlement provides temporary relief, allowing employees to use an I-797 Approval Notice with a notice date on or after December 1, 2019 through and including August 20, 2020 as evidence of employment authorization, regardless of the language in the Approval Notice. USCIS has also advised employers that for Form I-9 purposes, the I-797 Approval Notice should not be used as a List A or List B document. If an employee presents the Approval Notice as a List C document, the employee must also present an acceptable List B document that establishes identity. Employers will need to reverify employees who present an I-797 Approval Notice as a List C document by December 1, 2020, and they are reminded that it is the employees’ choice whether to present the new EAD or a different document which satisfies the I-9 rules.