Updated: Feb 16, 2021
Recently we have been receiving a lot of questions from employers regarding workers with work permits that have been expired for more than 180 days who claim they are still work authorized. In some situations, the employee is no longer authorized to work because he/she does not qualify for automatic extension, and continuing to employ these non-qualifying individuals would be a violation of the Immigration Reform and Control Act. In other situations; however, the employee is making a valid claim, and terminating that worker could lead to potential discrimination charges.
Example: Employee has Honduras Temporary Protected Status (TPS). His EAD expired on January 5, 2018. Employer correctly requests a new EAD to re-verify the worker’s work authorization and to update Section 3 of the I-9. The worker tells Employer he does not have the work permit yet, but he swears he is work authorized. Employer is aware that some work permits can be automatically extended for 180 days, but this work permit has been expired for more than 200 days. Employer asks Employee if he has a Receipt Notice from USCIS and Employee says that he does not need one.
Question: Employer wants to know if they can legally continue to employ this worker. Answer: According to USCIS and the latest Federal Register Notice, yes, Honduran TPS individuals “who have EADs with an expiration date of January 5, 2018, and who applied for a new EAD during the last reregistration period but have not yet received their new EADs are also covered” by an automatic EAD extension.
Documenting Automatic Extensions: Because the worker did not provide a Receipt Notice, the Employer should print the Federal Register Notice announcing the automatic extension as evidence of the continuing validity of the worker’s EAD.
Automatic extensions of work permits can be tricky. To better protect your company, everyone who handles hiring for your company should receive proper I-9 training. To learn more about how to update the I-9 in this and other situations, please register for one of our upcoming I-9 training webinars.
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The information provided here does not constitute legal advice. It is general information regarding law and policy that may be applicable to your particular HR issue or legal problem. Information provided in this blog, or any of our other public posts does not create an attorney-client relationship. For specific advice you can rely upon, please contact your attorney.