All workers employed in the United States must be able to present proper documents evidencing their identity and work authorization for purposes of completing the Form I-9. One such document is the Employment Authorization Document (EAD), which is issued by U.S. Citizenship and Immigration Services (USCIS) to certain non-immigrants.
Due to a recent surge in applications for EAD renewals by beneficiaries of the Deferred Action for Childhood Arrivals (DACA) initiative, USCIS could experience delays in the issuance of certain EADs. An application for an EAD renewal may not be filed more than 120 days before the previous EAD expires and USCIS sometimes takes even longer than the 90-day statutory period it is given to issue the document.
If USCIS is unable to issue the EAD within 90 days, it must produce an “interim” document to allow the foreign national to work while the actual EAD is produced. Applicants are allowed to contact USCIS after 75 days to request that the case be prioritized. Applicants used to be able to obtain an interim EAD from their local USCIS field office. USCIS field offices no longer produce interim EADs. Individuals may still go to the local office to request an interim document, but it will be issued by the service center handling the actual application. Or applicants may call USCIS instead of going to the local office to request an interim document. USCIS has also indicated that, in certain limited circumstances, a USCIS field office could issue a letter as evidence of work authorization that serves as an acceptable List C document for purposes of the Form I-9, if it states that the individual may use the letter as proof of employment authorization for a specific length of time.
If an individual’s EAD on file with their I-9 form is expired, they do not yet have the new EAD to present to the employer for verification, and they do not have any other documents from the I-9 acceptable documents list (A-C), they may not work for pay in the United States. It is not enough to only apply for an EAD, with the exception of an application for a STEM Optional Practical Training (OPT) extension which allows an employee to continue working lawfully for 180 days after the expiration of the previously-issued EAD. The only time an employer may accept a receipt for a pending EAD would be if the receipt is for a replacement of a lost, stolen or damaged document – not simply an initial document or a renewal – and only for 90 days. Even an approval notice alone is not sufficient, without the actual EAD. There are unique rules relating to OPT STEM extensions which must be considered when evaluating employment-eligibility for individuals with EADs based on Optional Practical Training.
When an employee’s EAD on file expires, and the worker is unable to present a new proper document for purposes of the I-9, the employer must take the worker off payroll. Sometimes, depending on comfort level, the employer might place the individual on a leave of absence instead of terminating him or her because of the administrative burdens associated with termination in all internal systems. The definition of “employee” is someone who provides services or labor for wages or other remuneration. Therefore, arguably, if the employee does not engage in services or labor and is not being paid, there would be no liability for employing an individual without work authorization. Other, more cautious employers would typically terminate the individual in all internal systems.
What about volunteering? For job security reasons or to facilitate an employer, an employee might agree to work without compensation while his or her new work authorization application is pending. However, there are significant risks associated with allowing an employee to work without pay that could render the employer in violation of fair labor laws. There are very limited exceptions that would allow a worker to volunteer for an employer.
When the individual is once again employment-authorized, following a lapse in employment authorization, the employer should prepare a new I-9 or use Section 3 to document this situation as a rehire instead of reverification. If there is a lapse in employment authorization, this should be treated as a rehire to properly document that the employee was not employed without authorization. Any amount of unauthorized employment, especially when the employer knows of the unauthorized status of the employee, is a very serious issue.