As we have been posting recently, USCIS is experiencing record delays in issuing receipt notices of various applications. We just finally received all receipt notices in connection with I-485 employment based applications in October 2020 (a 4 month wait!). It does not seems like the situation is improving as we are continuing to receive various receipt notices that are 2 to 3 months late.
The good news is that USCIS is taking action to address the delays. It announced on February 26, 2021 flexibilities for Students applying for OPT. However, more accommodations must be implemented to address some of the most pressing concerns, especially in scenarios where a receipt notice is required for employment verification. For example, USCIS should consider providing temporary short term extension based on proof of delivery until such time when USCIS is able to issue timely receipt notices.
Lawful Permanent Residents
The receipt notice is crucial for those who has filed an extension or a replacement of their green card via Form I-90. In our post about USCIS replacing the Sticker that extends the validity of Green Cards with a receipt notice, USCIS had the right intent to expedite the process of employment verification for those who has extended their Green Card. But they probably did not anticipate that the receipt notice (previously thought to be issued between 7 to 10 days) would be delayed to such a degree that would jeopardize an applicant’s employment.
To be clear, green card holders LPRs should not be re-verified if they are already working after they’ve filed for extension. They are not expected to present receipt notice to their employers in order to keep working. But if they are starting a new job, then the receipt notice becomes necessary. A receipt notice is still required to show evidence of continued validity if verifying for a new job.
“When presented together with the Green Card, the revised Form I-797 notice will extend the Green Card’s validity for 12 months from the date on the front of the Green Card and will serve as temporary proof of the LPR’s status.”USCIS to Replace Sticker That Extends Validity of Green Cards
Conditional residents who has filed petition to remove conditions (I-751) face the same issue. Receipt notice will be required if he or she is starting a new job after the Form I-551 (conditional GC) or other proof of conditional green card has expired.
Form I-765 (EAD) Renewal
Many categories of EADs are automatically extended for 180 days upon timely filing an extension application while the application remains pending. Eligible categories include: A03, A05, A07, A08, A10, C08, C09, C10, C16, C20, C22, C24, C31, and A12 or C19. They are also further discussed in USCIS Automatic EAD extension page.
Because the EAD receipt notice is always required for employment verification, the receipt notice delay becomes problematic for those who needs it for starting or keeping a job. The Handbook for Employers M-274 specifically requires showing of a receipt notice (Form I-797C).
“An EAD that appears to be expired is automatically extended when the employee also presents a Form I-797C that shows a timely filed EAD renewal application.”
STEM OPT Extensions
For students who have applied for STEM OPT on a timely basis, their current employment authorization is extended for a 180 days period starting on the date I-765 renewal for STEM OPT EAD is filed. Work authorization in this case does not require a showing a I-797C receipt notice.
Instead, per the M-274 Employer Handbook, the employer should accept the expiring/expired one-year OPT EAD and the most recent Form I-20 from the university with the STEM two-year extension endorsement.
Form I-129 Extension
Similarly, for I-129 extensions such as H-1B extension, actual receipt notice is not required for verifying employment authorization. The law extends work authorization up to 240 days upon a timely filing of extension via Form I-129. To show extension was properly filed prior to receiving receipt notice, employers may keep the following documents:
- A copy of the new Form I-129 or Form I-129CW;
- Proof the employer paid the filing fee; and
- Proof the employer mailed the new petition to USCIS.