Form I-9 Verification During EAD Production Delays Due to COVID-19

USCIS just announced that due to their delay in producing Employment Authorization Documents (Form I-766, EAD), employees 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 to establish employment authorization.

Even though the Notice of Action states it is not evidence of employment authorization, employees may use it for this purpose until December 1, 2020.

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.


For Form I-9 completion, employees who present a Form I-797 Notice of Action described above for new employment must also present their employer with an acceptable List B document that establishes identity. The Lists of Acceptable Documents is on Form I-9.  Current employees who require reverification can present this Form I-797 Notice of Action as proof of employment authorization under List C.

By December 1, 2020, employers must reverify employees who presented this Form I-797 Notice of Action as a List C document. These employees will need to present their employers with new evidence of employment authorization from either List A or List C.


USCIS did not receive enough H-1B petitions in the first round of the lottery to reach the cap, so it is conducting a 2nd lottery selection this week. Employers will have a 90 day period within which to file the H-1B petitions that are selected this week. Check your USCIS online account to see if your registration account has changed from “submitted” to “selected.”

Check-in with Department of State’s Charlie Oppenheim regarding the August Visa Bulletin

In the August “check-in,” Charlie describes the movement in each category which is readily apparent from looking at the Visa Bulletin. Charlie’s predictions on future movement of the visa categories are few:

·       F2A is expected to remain current in September and October.


·       EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam) will continue to remain current through the end of this fiscal year.

·       While there is still potential for forward movement in EB-1 China and EB-1 India in September, any advance movements are unlikely to be as dramatic as in August.


·       EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam)  will remain current through this fiscal year. EB-2 China advances approximately nine weeks from November 8, 2015 to January 15, 2016. In contrast, EB-2 India holds at July 8, 2009 in August. It is currently estimated that there is a sufficient amount of worldwide demand to reach or approximate the EB-2 annual limit for FY2020.

Hong Kong Executive Order

Because of this July 14, 2020 Executive Order, there is great concern whether persons born in Hong Kong will be chargeable to the China visa category. The Visa Office continues to review this issue but there is legal authority that the Order cannot alter the separate chargeability of Hong Kong. Section 103 of the Immigration Act of 1990 granted the separate chargeability treatment to persons born in Hong Kong. Section 103 states that Hong Kong will be treated as a separate foreign state, “and not as a colony or other component or dependent area of another foreign state.”  Stay tuned for updates on this important issue.

Presidential Proclamation Update

The US Department of State confirmed, “If you were in the US on June 24th but left and your visa expired, you are not subject to the Proclamation [and] may renew your visa before December 31, 2020.”

In a reversal of prior guidance, the US Department of State announced via Twitter that Presidential Proclamation 10052 of June 22, 2020, amending Presidential Proclamation 10014 of April 22, 2020, does not apply to H-1B, H-2B, J-1, and L nonimmigrants who were physically present in the United States on June 24, 2020, and whose visas in one of the affected categories subsequently expired. Thus, should an individual who was in the United States on June 24, 2020, leave the United States and require renewal of a visa to return, the individual is eligible to apply for a new visa at a US consulate/embassy abroad once routine visa services become available.

As always, please contact Cantey Hanger before you finalize any international travel plans and the situation is subject to change.


We are all aware that this proclamation suspends the entry into the U.S. of certain H-1B, H-2B, J and L nonimmigrants and their spouses and children.

There are few exceptions and they primarily focus on the national interest of the U.S. including providing medical care or medical research for COVID-19, providing services critical to defense or law enforcement, and providing services that facilitate the economic recovery of the U.S.

Be aware that this proclamation also instructs other actions to be taken to ensure that the presence in the U.S. of H-1B nonimmigrants and those seeking EB-2 or EB-3 benefits do not disadvantage U.S. workers. There are no details provided at this time as to what these actions may be, but speculation abounds that they could include an increase in Department of Labor audits of labor certifications and possibly re-testing of the market for labor certifications.


EB-1 Worldwide remains current in July and should remain so through the end of this fiscal year.


EB-1 India  advances significantly, moving forward eleven months from June 8, 2016, to May 8, 2017.


EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) remains current in July and should do so through FY2020.


EB-2 China and EB-2 India will certainly exceed their per country limits this year. The open question is how close the EB-2 category will be to reaching its worldwide limits.


EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) and EB-3 Worldwide Other Workers (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) which advanced more than ten months in June, advances at a significant yet slower five month pace in July 2020 from November 8, 2017, to April 15, 2018.