USCIS issued a final rule discussing certain automatically extended Employment Authorization Documents (EADs), starting January 17, 2017.
If your company has new employees presenting expired work permits during the I-9 process; or if you have current employees with expired or expiring work permits, it is very important that your HR department is fully trained on how to address these situations.
Some work permits are truly expired and need to be re-verified immediately, or you and your company could face liability for continuing to employ a worker who is not authorized to work in the U.S. Other work permits fall in the category of permits automatically extended for 180 days (or until the worker receives a denial) by USCIS, with no further documentation needed from the employee. A third category of work permits have been automatically extended by USCIS for 180 days (or until the worker receives a denial), but the employee must also present certain additional evidence to qualify for the automatic extension.
For example, EADs with category codes A03, A05, A07, A08, A10, C08, C09, C10, C16, C20, C22, C24, C31 are automatically extended for 180 days beyond the expiration date printed on the document, as long as the worker provides evidence that they have timely filed for a renewal work permit based on the same category code. Typically, the worker will present an I-797C receipt notice showing the application was filed before their EAD expired and contain the same category code as listed on the EAD.
However, some workers with Temporary Protected Status (TPS) with EADs containing category code A12 or C19 may be eligible for a 180 automatic extension of work authorization based on their specific TPS status and their country of origin. You can monitor the USCIS Temporary Protected Status page to monitor whether an extension applies to your worker.
Employers should know when an automatic extension applies and also be able to properly record these extensions properly on the Form I-9. USCIS specifically requires that certain auto-extended EAD expiration dates be updated in Section 2, while others need to be re-verified in Section 3.
Terminating an employee or refusing to hire an individual with an expired EAD could bring a costly discrimination claim to your company, if that person is holding an automatically extended EAD. Hiring or continuing to employ an individual whose EAD has expired, and does not qualify for automatic extension, could cost your company in government fines and penalties (with the potential for jail time in certain cases) for employing a person not authorized to work in the U.S.
The best tool an employer has to avoid penalties for I-9 errors and potential discrimination claims is timely training of I-9 administrators, and keeping records of such training.
What Should Employers Do?
Take an updated training course, for example, the I-9 Annual Certificate Training course offered by Corporate Immigration Compliance Institute;
Update your Corporate Immigration Compliance Plan, Policies and Procedures; and
Train everyone who administers I-9s on behalf of the employer
DISCLAIMER: This article does not contain any legal advice and does not create attorney-client relationship.
Leyla McMullen. Business Immigration Attorney
MDIVANI CORPORATE IMMIGRATION LAW FIRM