On August 21, 2020, the United States District Court for the Southern District of Ohio entered a consent order and final judgment requiring the United States Citizenship and Immigration Services (USCIS) to produce employment authorization documents expeditiously for a class of noncitizens with approved Form I-765 applications who were facing extremely long delays in obtaining an employment authorization document. You may see the court order here [link] and the report by the American Immigration Lawyers Association here [link]. Subsequent to the order, the USCIS published a new notice announcing the resulting policy. In this article, we will examine what the order means for certain applicants with approved employment authorization applications going forward.

Who Is Affected By the Order?

There are two sub-classes of aliens covered by the district court order.

The first sub-class covers aliens who had received a Form I-765 approval notice and for whom the production of an Employment Authorization Document was ordered, but not completed. As of August 20, 2020, there were 27,829 individuals in subclass 1. Under the provisions of the order, the USCIS is required to produce and mail all Employment Authorization Documents for sub-class 1 members by August 28, 2020.

The second sub-class covers aliens who had received a Form I-765 approval notice, but for whom an Employment Authorization document had not been ordered and biometrics had not been captured. Sub-class 2 contained 17,736 individuals as of August 20. The USCIS has taken the position that the capture of biometrics is required prior to ordering an Employment Authorization Document. The court order did not fully resolve sub-class 2 issues. Biometric collection for all but 18 of the sub-class 2 members is scheduled to be completed by September 15. Biometric collection for the remaining 18 sub-class 2 members is scheduled to be completed by September 22. The order provides that Employment Authorization Documents will be produced and mailed within seven days of the USCIS’s completing biometric capture.

Class Members May Use Form I-765 for Form I-9 Purposes For a Limited Time

The USCIS posted a notice on its website under the terms of the court order. “[E]mployees may use Form I-797, Notice of Action, with a notice date on or after December 1, 2019 through and including August 20, 2020, informing an applicant of approval of an Application for Employment Authorization (Form I-765) as a Form I-9, Employment Eligibility Verification, List C #7 document that establishes employment authorization … even though the Notice states that it is not evidence of employment authorization.” In short, class members covered by the court order may use their Form I-797 for Form I-9 employment verification purposes pending their receipt of an EAD card. However, this exception is temporary — “Employees may present their Form I-797 Notice of Action showing approval of their I-765 application as a List C document for Form I-9 compliance until December 1, 2020.” (Emphasis added.)

Beginning on December 1, 2020, employers will be required to reverify any employees who presented the Form I-765 for employment verification purposes. Employees will need to present new evidence of employment authorization from the ordinary List A or List C documents. The USCIS “encourage[s] employers to accept new EADs presented by employees as soon as they receive them from USCIS prior to December 1, 2020, to satisfy the reverification requirement.” However, it adds that it is the choice of the employee whether to present their new EAD or an alternative document from List A or List C.

The USCIS added that, notwithstanding this Form I-765 exception, it is important to remember that the Form I-765 does not serve as a document establishing both identity and employment authorization or as a document establishing identity. Thus, the individual will still need to provide proof of identity along with the Form I-765.

Conclusion

As a result of the coronavirus (COVID-19) outbreak and other factors, USCIS’s document production has been significantly delayed. The National Benefits Center is predicting substantial delays at the time of this writing regarding the production of Employment Authorization Documents. Noncitizens waiting for the production of an Employment Authorization Document may consult with an experienced immigration attorney for case-specific guidance if the need arises.