Volume 1 | Issue 5

Understanding Options around Expiring Employment Authorization Documents

Due to extreme processing delays by U.S. Citizenship and Immigration Services (USCIS), many workers are facing the expiration of their employment authorization documents, putting employers at risk of being short-staffed and potentially employing workers whose authorization has unknowingly expired.

How do I know if my workers are affected by this?

U.S. employers must check to make sure all employees, regardless of citizenship or national origin, are authorized to work in the United States. Having an Employment Authorization Document (Form I-766/EAD) is one way for workers to prove that they are authorized to work in the United States for a specific time period. A good Form I-9 process, including onboarding practices, a reliable reminder system and regular internal audits will help employers be aware of potentially expiring employment authorization documents.  

What if my employee has filed for an extension with USCIS that is pending when their expiration date arrives?

Certain applicants who have filed Form I-765, Application for Employment Authorization, qualify for automatic extensions of their expiring employment authorization for up to 180 days if they (i) properly filed Form I-765 for a renewal of their employment authorization before their current EAD expired, (ii) the renewal application is under a category that is eligible for an automatic 180-day extension and (iii) the category on their current EAD matches the “Class Requested” listed on their Form I-797C Notice of Action. If your employee presents a Notice of Action from USCIS that indicates their request for an extension in the same category was timely filed, they automatically receive up to an additional 180 days of employment authorization while the extension petition is pending. At the end of the 180 days, the employee must present the physical EAD card to demonstrate continued employment authorization.

Can employers request that USCIS expedite adjudication of the extension petition?

Yes. USCIS recently issued guidance indicating that it will consider expedite requests in cases involving (i) severe financial loss to a company or person, (ii) emergencies and urgent humanitarian reasons, (iii) nonprofit organizations whose request is in furtherance of the cultural or social interests of the United States, (iv) expressly identified U.S. government interests and (v) clear USCIS error. Further, qualifying health care workers may request expedited issuance of their EADs if they have pending EAD renewal applications filed on Forms I-765 and EADs that expire within 30 days or have already expired.

What happens if my employee’s employment authorization expires?

If the employee’s employment authorization expires (or the 180-day extension period, if applicable, ends) and they do not have a new EAD card to present to the employer, the employer must either terminate or place that employee on unpaid leave. This must be done to avoid liability for continuing to employ an unauthorized worker and avoid negative immigration consequences for the employee that arise from engaging in unauthorized employment.