Employment Authorization Documents ("EAD cards") authorize certain foreign nationals to work in the United States during their validity period. An EAD card is one of many documents an employee may present as the basis for his or her employment authorization when filling out an I-9 Form. An EAD card is valid evidence of employment authorization if:
- It is unexpired; or
- It is expired and has been automatically extended.
Automatic EAD Extensions
There are over 50 different EAD categories; however, only certain EAD categories qualify for an automatic extension. Automatic extensions are available for those EAD categories so long as the individual filed a renewal application prior to the expiration date of the previously valid EAD card.
In order to demonstrate eligibility for the automatic extension, the individual should present the expired EAD card plus a copy of the Form I-797 USCIS receipt notice for the pending I-765 application to renew the EAD in the same category, which must be one of the above-noted categories.
The automatic extension period is typically 180 days from the date on which the prior EAD expired. However, due to USCIS adjudication backlogs, the automatic extension period is currently 540 days, so long as the I-765 renewal was filed:
- Before May 4, 2022, and the 180-day automatic extension has since expired;
- Before May 4, 2022, and the 180-day automatic extension has not yet expired; or
- Between May 4, 2022 and Oct. 26, 2023, inclusive of these dates.
For applications filed after October 27, 2023, the normal 180-day automatic extension will apply.
What Happens If An Employee's EAD Expires and They are Not Eligible for Auto-Extension?
Employers are required to reverify employees' I-9s when their employment authorization is expiring. If, upon reverification, an employee's EAD card has expired; the individual does not have a new card; and they are not eligible for automatic extension, then the person is not authorized to work after the current EAD expires and until a new one is issued. The question often arises in this scenario whether a full termination and rehire is required, or whether the employee may simply be placed on a temporary, unpaid leave of absence. The Department of Homeland Security has not issued any formal guidance on this issue.
In the absence of official guidance, the most conservative approach is to do a full termination and rehire once the new EAD is issued. The Immigration Reform and Control Act of 1986 ("IRCA") makes it unlawful for an employer to hire or continue to employ an individual once the employer knows or should know the employee is not authorized to work in the United States. Thus the question is whether an employee who is on an unpaid leave of absence remains an "employee" for IRCA purposes.
According to IRCA, an "employee" is "an individual who provides services or labor for an employer for wages or other remuneration." Arguably, an employee who is on an unpaid leave of absence is not an "employee" under this definition as she is neither providing services nor being paid. Employers who choose to go this route will want to ensure that the employee has no access to email, voicemail, company-issued electronic devices, etc. It is also a good idea to inform the employee in writing that they may not perform any services on behalf of the company during the leave. However, even taking these measures opens the company up to potential liability in the event of an enforcement action. A full termination makes it 100% clear that the individual is not an "employee" during the relevant period.
Our Immigration Law Practice Group includes immigration attorneys that work across New York state in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices.
Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that companies are able to hire, transfer, and retain the brightest and best non-U.S. talent.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
