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Temporary I-9 policy adopted for employment authorization documents


Author: ADP Admin/Wednesday, September 30, 2020/Categories: Compliance Corner

The Department of Homeland Security (DHS) has adopted a temporary policy in response to delays in the government's production of certain Employment Authorization Documents (Form I-766, EAD) for the purposes of completing Form I-9.


The Form I-9 is used to verify a new hire's identity and work authorization. All employers must ensure that each employee properly completes the I-9 at the time of hire. To complete Section 2 of the I-9, employees must generally present documents that verify their identity and employment authorization. The I-9 Form includes a List of Acceptable Documents (List A, List B, and List C). An employee must present one document from List A or one document from List B and one document from List C.

  • List A documents: establish both identity and employment authorization
  • List B documents: establish identity only
  • List C documents: establish employment authorization only

DHS Temporary Policy:

In response to delays in producing certain EADs, the DHS is allowing employees to temporarily use Form I-797 (Notice of Action) as a List C document. To be accepted under the temporary policy, Form I-797 must be dated on or after December 1, 2019 through August 20, 2020 and inform the applicant that their Application for Employment Authorization (AEA) is approved, even though the notice states it isn't evidence of employment authorization. Employees may present Form I-797 as a List C document until December 1, 2020. For Form I-9 completion, employees who present a Form I-797 for new employment must also present their employer with an acceptable List B document that establishes identity.

By December 1, 2020, employers must reverify employees who presented Form I-797. These employees will need to present new evidence of employment authorization from either List A or List C. Note that it's the employees' choice whether to present their new EADs, or a different document from either List A or List C.

Compliance Recommendations:

Employers should review their I-9 procedures and training to ensure compliance with the temporary policy. Please contact your dedicated service professional with any questions.