As of March 19, 2020, the Department of Homeland Security (“DHS”) and U.S. Immigration and Customs Enforcement (“ICE”) temporarily relaxed the Form I-9 compliance rule requiring U.S. employers to complete Section 2 of the Form I-9 in the new hire’s physical presence.  The relaxation of the physical presence rule also applies to the re-verification of U.S work authorization for existing employees under Section 3 of the Form I-9.  However, the relaxation of this rule is restricted to U.S. workplaces operating remotely due to the COVID-19 National Emergency.  In view of the continuing National Emergency, on December 23, 2020, DHS and ICE extended this relaxation of the physical presence rule through January 31, 2021.

The combination of USCIS’ financial woes and the COVID-19 pandemic also has slowed the production of Lawful Permanent Resident (“LPR”) Cards (also known as “green cards”) and Employment Authorization Documents (“EAD”).  These documents are often presented by foreign national workers as acceptable documents for verification of their identity and U.S. work authorization in order to gain or retain U.S. employment.  In light of the production slowdown of these acceptable documents, USCIS has implemented measures to assist foreign workers in need of such documents for completion of the Form I-9 process.

Foreign nationals with approved U.S. permanent resident status who do not yet have their green cards due to current production delays should call the USCIS Contact Center (800 375-5283) and request an appointment at a USCIS field office to obtain a temporary Form I-551 (ADIT) stamp in their passport.  This ADIT stamp will serve as temporary proof of their lawful permanent resident status. USCIS has indicated that it is presently scheduling appointments for emergency document services, including issuance of ADIT stamps, as soon as possible.  However, the foreign national must be prepared to provide evidence of the need for such emergency services both to the Contact Center representative and the local USCIS officer.  This evidence requirement is typically met by the submission of an original letter on a U.S. employer’s letterhead stating the need for acceptable documentation of the foreign national’s immigration status in order to comply with Form I-9 verification rules.  Foreign nationals experiencing delays in the receipt of their secure U.S. Permanent Resident Card may also contact the CIS Ombudsman at https://www.dhs.gov/topic/cis-ombudsman/forms/7001 for assistance.

USCIS also has provided relief to foreign national workers experiencing a delay in the production of an EAD, needed by them as an acceptable List C document for proof of their current U.S. work authorization.  In August 2020, the agency temporarily designated an Approval Notice (Form I-797) for an EAD, which was issued by USCIS during the period from December 1, 2019 through August 31, 2020, as an acceptable List C document.  Notably, the use of the Approval Notice for an EAD as a List C document, in lieu of the actual EAD itself, was previously impermissible for Form I-9 compliance. This temporary designation was initially in effect through December 1, 2020.   Due to the continuation of such production delays, on December 1, 2020, USCIS now extended the temporary designation through February 1, 2021.  Therefore, employers with affected Forms I-9 must update those forms with an annotation of “Employment Authorization Ext through 02/01/2021” in the Additional Information box in Section 2 of the Form I-9.  Unless USCIS grants another extension of this temporary designation, any foreign national worker who took advantage of it must present, either their newly produced EAD or any other acceptable document demonstrating their current U.S. work authorization, to their U.S. employer on or before February 1, 2021.

Such flexibility and assistance with I-9 compliance requirements during this National Emergency is obviously welcome relief for U.S. employers and their employees.  However, U.S. employers taking advantage of this flexibility must continue to check the DHS (https://www.dhs.gov/) and ICE (https://www.ice.gov/) websites for announcements about additional extensions of this flexibility and the future re-imposition of the physical presence rule as the pandemic wanes and workers return to the workplace.

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Photo of Brenda A. Eckert Brenda A. Eckert

Brenda Eckert practices in the areas of civil litigation, civil rights, employment law litigation, and employment-based immigration law before state and federal courts and administrative agencies. She has successfully defended public and private sector employers against employment law claims, including contract claims, discrimination…

Brenda Eckert practices in the areas of civil litigation, civil rights, employment law litigation, and employment-based immigration law before state and federal courts and administrative agencies. She has successfully defended public and private sector employers against employment law claims, including contract claims, discrimination claims and related state tort claims.

Photo of Bradley Harper Bradley Harper

Bradley Harper is a member of the firm’s Immigration practice, where he advises clients on the immigration process, assists them with preparing and filing employer-sponsored immigration petitions including H-1B, L-1, O-1, and TN nonimmigrant visa types and EB-1, EB-2 and EB-3 immigrant visa/“green…

Bradley Harper is a member of the firm’s Immigration practice, where he advises clients on the immigration process, assists them with preparing and filing employer-sponsored immigration petitions including H-1B, L-1, O-1, and TN nonimmigrant visa types and EB-1, EB-2 and EB-3 immigrant visa/“green card” petitions, as well as with preparing and filing Responses to Requests for Evidence. He also provides general immigration advice to clients who have submitted or are preparing to submit family-sponsored immigrant visa (“green card”) petitions, adjustment of status applications, and applications to become naturalized U.S. Citizens.