Accepting an I-797A and I-94 as Work Authorization Before the EAD Arrives

Attorney Answer

Yes. She does not need the physical EAD card to start work. If her Form I-94 shows a class of admission of U-1 (or U-2 through U-5), she may present that I-94 as a List C document for Form I-9, paired with a List B identity document such as a driver's license — and you may complete Section 2 on that combination.

Federal law requires every employer to verify a new hire's identity and work authorization through Form I-9 (8 U.S.C. § 1324a) and makes it unlawful to hire or continue to employ someone knowing they are not authorized to work — while the same framework also creates liability in the other direction for employers who reject valid documents or demand more than the law requires.

U nonimmigrant status is among the classifications authorized to be employed incident to status (8 C.F.R. § 274a.12(a)(19)–(20)). Those subsections describe the authorization as "evidenced by an employment authorization document issued by USCIS," but that provision answers who is authorized to work — not which documents satisfy the I-9. The I-9 document lists sit separately at 8 C.F.R. § 274a.2(b)(1)(v), where List C item 7 accepts "an employment authorization document issued by the Department of Homeland Security." That category is broader than the Form I-766 card.

USCIS resolves the point directly. The Handbook for Employers (Form M-274) § 7.8, T and U Nonimmigrant Status, states that employees whose "Form I-94 indicates a class of admission of T-1, U-1, U-2, U-3, U-4, or U-5 may instead choose to present their Form I-94 as a List C #7 document and must also present a List B identity document. These employees are employment authorized incident to status." Your applicant's notice says her U nonimmigrant petition was approved and that she was granted U status for four years, so the I-94 attached to her I-797A is exactly the document that guidance describes. (The same section excludes I-94s showing T-2 through T-6, who do need an EAD first — but that is not her classification.)

So there is no gap to wait out. Complete Section 2 within 3 business days of her first day of employment, as 8 C.F.R. § 274a.2(b)(1)(ii) requires, using the documents she presents. Then calendar reverification for the "Admit Until" or "Valid Until" date on her I-94 — roughly four years out — since M-274 § 7.8 requires reverification no later than the date her employment authorization or her document expires, whichever comes first. When the EAD card arrives it does not need to replace anything already recorded.

One caution in the other direction: the choice of which acceptable documents to present is hers, not yours. Requesting "more or different documents than are required" or "refusing to honor documents tendered that on their face reasonably appear to be genuine" is an unfair immigration-related employment practice under 8 U.S.C. § 1324b(a)(6). Insisting on the physical EAD card, or pushing back her start date until it arrives, is the exact conduct that provision reaches.

What you can do

1. Check the class of admission printed on the I-94 attached to her I-797A. If it reads U-1 through U-5, the I-94 works as a List C #7 document under M-274 § 7.8.

2. Let her choose what to present, and ask for a List B identity document to pair with the I-94 — a state driver's license or ID card is the usual one.

3. Complete Section 2 within 3 business days of her first day of employment (8 C.F.R. § 274a.2(b)(1)(ii)). In Section 1 she should select that she is authorized to work and enter the I-94 "Admit Until" or "Valid Until" date.

4. Calendar reverification for that same I-94 expiration date so the file does not lapse in four years.

5. Do not require the EAD card and do not delay her start date waiting for it — that risks a document abuse claim under 8 U.S.C. § 1324b(a)(6) even though your intent is to be careful.