Likely triggered by complications resulting from the COVID-19 pandemic and increases in processing times to replace permanent resident cards, United States Citizenship and Immigration Services (USCIS) announced on January 12 that the agency will issue a revised Form I-797, Notice of Action, for all Form I-90 applications filed beginning in January 2021. This I-797 notice will serve as a receipt notice for the I-90, as well as extend the validity of a Permanent Resident Card (“PRC” or “Green Card”) for 12 months from the “Card Expires” date on the front of the card. This change ensures that certain lawful permanent residents have documentation for completing Form I-9, Employment Eligibility Verification, as well as for travel and identity purposes.
This seemingly small change has more complicated implications for employers than appears at first blush.
To provide context, green card holders with expiring PRCs must file a Form I-90, Application to Replace Permanent Resident Card, to obtain proof of status as a permanent resident. 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 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 on I-9 Central.
The revised Form I-797 replaces that process, but will not apply to Form I-90 applicants who have already been scheduled for a biometrics appointment; these applicants will instead be issued an extension sticker at their biometrics appointment in accordance with the prior procedure.
How to Complete the Form I-9:
In the announcement, USCIS instructs employers that the combination of an expired green card together with this new type of I-797 notice, is an acceptable List A document. While this is in line with how a PRC with a legacy sticker was treated it is different from the M-274 6.1 guidance treating an expired PRC ( or “I-551”) and an I-797 notice as a List C document only providing temporary work authorization. It seems that the USCIS intended to make a distinction between I-797 notices related to I-90 filings versus I-829 and I-751 filings made by conditional permanent residents to remove conditions on permanent residency. Accordingly, employers are cautioned to ensure the I-797 notice being recorded as a List A document (in combination with an expired PRC) states the following:
“This notice provides evidence of your lawful permanent resident status for 12 months from the expiration date on your Form I-551, Permanent Resident Card (also known as a Green Card). You remain authorized to work and travel. This notice, presented with your expired Permanent Resident Card, is evidence of your status and work authorization.”
Employers are instructed to enter the information from the document combination (expired PRC and Form I-797) in Section 2 under List A as follows:
- In the Document Number field, enter the card number provided on the expired PRC.
- In the Expiration Date field, enter the date that is 12 months from the “Card Expires” date on the expired PRC.
- In the Additional Information box, write “PRC Ext” and the I-90 receipt number from Form I-797.
Is Reverification Necessary?
You may be thinking, “Oh my, one more thing to track for reverification!” However, this is not the case as USCIS veered away from the M-274 here. In fact, USCIS states that employers may not reverify Lawful Permanent Residents who present this document combination or the legacy sticker noted above. This is good news from employers already bogged down with receipt tracking, including certain expired List B documents. Remember: Lawful Permanent Residents should not be reverified if they have presented a valid List A document, including a PRC automatically extended by an I-797 notice, nor is reverification 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:
- 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.
- 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).
- 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.
Designating the I-90 based filing receipt a List A document will allow for a smoother, “one and done” process. However, the challenge for employers lies in the anticipated confusion stemming from #3 above. There is a nuanced distinction between a List C expired I-551 card/I-797 combination (based on an I-751 and I-829 filing), which is considered a temporary document requiring reverification, and the new List A document. When appropriate, employers will need to ensure they provide the necessary training to their I-9 personnel to correctly identify whether the I-797 document combination is categorized as List A or List C to ensure reverification, when required, is addressed timely.
While confusing, the silver lining is the hope that this deviation from historical practice indicates a possible reconsideration of other restrictive and unclear I-9 guidance, as well as a broader focus by USCIS on business-friendly, compliant practices.
If You Copy, Copy the Combination:
Copying identity and employment verification documents is a strong best practice, but is not required under the Immigration Reform and Control Act. However, there are a few exceptions where copying is mandated. For example, E-Verify employers must retain copies of List A documents, certain public or private contracts may require retaining document copies, and a very recent Florida law (SB 644) requires that employers retain document copies, if they are not enrolled in E-Verify. When accepting this new combination of documents, employers who retain physical copies of documents should retain copies of both the PRC and Form I-797 with the employee’s Form I-9.
For questions regarding I-9 compliance, Worksite Enforcement, H-1B related DOL Enforcement, E-Verify and DOJ anti-discrimination matters contact your Seyfarth Shaw attorney, the Seyfarth Immigration Compliance and Enforcement group or Dawn Lurie directly at firstname.lastname@example.org
 USCIS stated that “Form I-90 applicants who have not been issued a notice for a biometrics appointment and are in possession of their Green Card, will no longer have to visit an application support center to obtain temporary evidence of LPR status. Applicants who have already been scheduled for a biometrics appointment will not receive a revised notice and will be issued an extension sticker at their biometrics appointment.”