Question: We have an employee whose employment authorization document (EAD) expires this week. I told him we need to reverify before then, but he hasn’t received his new EAD from the immigration office. What do we do if he doesn’t have his authorization before it expires?

Answer: All employers are required to reverify an individual’s employment eligibility no later than the date the current authorization expires. It sounds like you are taking efforts to meet this requirement. Unfortunately, without documentation that his EAD has been extended or that he has obtained a new authorization by the deadline, the employee is ineligible to work for you. Continuing to employ him after his authorization expires violates § 274A(a)(2) of the Immigration and Naturalization Act (INA) and could result in significant penalties. 

On January 17, 2017, a final rule went into effect that improves aspects of certain employment-based nonimmigrant and immigrant visa programs. The rule also helps U.S. employers hire and retain certain foreign workers. As a result, EADs for individuals within specified eligibility categories and meeting specified criteria were automatically extended for up to 180 days. The extension applies to Form I-765 renewal applications that were pending on January 17, 2017 as well as those filed on or after that same date.

Therefore, if your employee falls within one of these eligibility categories, his application may be automatically renewed for up to 180 days after the EAD expires unless the application is denied. For the automatic renewal to apply: 

1. The employee must have filed for a renewal EAD before his current EAD deadline (those granted temporary protected status (TPS) must have followed applicable TPS Federal Register notice requirements, which provided a six-month extension) and the application must still be pending;
   
2. One of the eligibility categories referenced above must be listed on his Form I-765 renewal application; and 
   
3. The category on his current EAD must match the Form I-797C Notice of Action the employee received from the U.S. Citizenship and Immigration Services (USCIS).

According to a fact sheet released by the USCIS, an employee’s expired EAD in combination with Form I-797C showing the EAD was filed in a timely manner and that it has the same qualifying eligibility category as that on the expired EAD is acceptable for Form I-9 employment eligibility verification or reverification. If your employee’s EAD meets the requirements for automatic extension, then we recommend you consult the instructions in the fact sheet when completing the Form I-9 reverification. The fact sheet and instructions include sample photos that show where to look on your employee’s documentation to ensure all requirements for automatic extension are met. 

In addition, it’s important for you to be aware of the revised Form I-9 released by the USCIS in July 2017. While the current Form I-9 (with an 11/14/16 revision date) can be used until September 18, 2017, employers may use the new Form I-9 (revision date 07/17/17) at any time before then. To sum up all this information, if your employee’s EAD has not automatically been extended, then it is a violation of the Immigration and Nationality Act for the employee to continue to work for you while his application is pending. Hiring or continuing to employ individuals with expired EADs may result in significant civil fines. Moreover, a pattern and practice of violations could result in criminal penalties.