In response to continued lengthy processing delays, the United States Citizenship and Immigration Services (USCIS) posted guidance in early September offering an extension to the time certain processing receipts (Form I-797) may be used as evidence of lawful status, for conditional permanent residents that have pending applications. Conditional permanent resident status is granted for a two-year period of time to individuals that received their status through marrying a U.S. citizen, or through job creation and investment via the EB-5 program. Dependent children can also receive such conditional resident status.  In order to remove the restricted conditions on their residency, these residents must file Form I-751 or Form I-829 petitions to prove they have fulfilled the necessary requirements.

This  USCIS announcement has Form I-9 implications for employers.

How do I Complete the Form I-9 using the Expired Green Card?

USCIS has begun issuing I-797, Notice of Action, receipt notices that may be used as evidence of lawful status and work authorization for up to 24 months past the expiration date found on a conditional permanent resident card (PRC) or green card. These notices extend the validity of the card and allow it to continue to be used for work and travel.

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The expired PRC is not sufficient alone for I-9 purposes, however USCIS does allow employers to accept it, along with an I-797 receipt notice (for the Form I-751 or Form I-829) as evidence of continued status, now for 24 months past the expiration date of the PRC. Specifically, the expired PRC with the Form I-797 indicating USCIS has extended the card's validity can be used as a List C document on the Form I-9. Employers should record the I-797 receipt number as the document number, and then record the expiration date of the PRC, including the 24 month extension.

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Things to Remember

  • Employees who present an expired PRC card/Form I-797 combination, must also present an acceptable List B document that establishes identity.
  • Employers must also reverify the employee's employment authorization in Section 3 before their extension ends.
  • Employers should always keep in mind that INA §274B permits employees to choose which documents to present to establish identity and employment eligibility. Allow your employees to choose.
    • Accordingly an employee who previously produced an PRC and I-797, is not precluded from producing an alternative List A or List C document during the reverification process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.