USCIS Ordered to Issue Work Permits In Class Action Suit

Update:   In response to the federal court’s order described below,  USCIS published guidance on August 19, 2020 alerting employers that, through December 1, 2020, they can accept work permit application approval notices issued between December 1, 2019 and August 20, 2020  in lieu of the actual work permit cards as proof of work authorization for federal employment authorization verification (form I-9) purposes.  The guidance notes that employers will need to reverify the work authorization of applicable employees by December 1, 2020.   Employees who show their approval notices (while waiting for USCIS to send them their work permit cards)  as a “List C” document for I-9 purposes will also have to provide their employers with an acceptable “List B” identity document.

USCIS posted the guidance as part of a consent decree approved by the federal district court on August 21, 2020.   Plaintiffs lawyers estimate that 75,000 individuals have never received their work permits despite their applications being approved.

Employers with employees or new hires who have work permit application approval notices dated between December 1, 2019 and August 20, 2020 but who not been issued their work permits can find the details about how to proceed when completing the I-9 form here.

Original post:    On August 3, 2020, a federal district court issued a temporary ruling ordering U.S. Citizenship and Immigration Services (USCIS) to issue work permits to individuals whose work permit applications have been approved, but who have not subsequently received the actual work permit cards needed as evidence of their authorization to work in the U.S.   The court also denied the government’s motion to dismiss the lawsuit.

The temporary restraining order is in effect nationwide while the case continues to be litigated.

Work-authorized noncitizens nationwide have lost jobs, or been unable to be hired because, months after approving their work permit applications, USCIS has not mailed them the actual work permit cards that serve as both their proof identity and of their permission to work in the U.S. for Form I-9  employment authorization verification purposes.

The backlog in card issuance allegedly affects at least 75,000 people. and are the result of USCIS’s failure to renew a contract with a card production facility.   Cards that used to be produced and mailed to applicants within a few days of work authorization renewal application approvals are now not being mailed out for months afterwards.  In the meantime, employers may be forced to lay off employees whose work permits, and if applicable, automatic extensions, have expired, or can’t retain new immigrant employees if those employees aren’t able to show an unexpired work authorization card within three days of hire.

Employers should reach out to their immigration counsel if they have employees whose work authorization renewals have been approved but who haven’t received their renewed work permits and whose I-9s will need reverification soon.    Employers who don’t have immigration counsel can reach out to MeBIC to learn more about what their employees can do to benefit from this court ruling.