Can an employee work beyond the expiration date of a work authorization document?
The answer to the question depends on whether the right to work in the United States is provided on a permanent or temporary basis.
Permanent Work Authorization
Permanent work authorization is conveyed to persons born in the United States, a U.S. citizen born abroad and to those who have become a U.S. naturalized citizen or a permanent resident.
Typical examples of permanent work authorization documents include a U.S. passport, an unrestricted Social Security card and a permanent resident card
If at the time of hire, an employee has provided a current work authorization document, they may continue to work for that employer after the expiration of that document.
Temporary Work Authorization
Except for employees who may have Temporary Protected Status (see below), employees may not work beyond the expiration date in the employment authorization document they provided at time of hire unless they have obtained a new document extending the date.
Applying for an extension or having an attorney represent the employee is not sufficient for the employee to be able to continue to work. The employee must have been issued a new document.
Examples of temporary work authorization documents include the following:
• Form I-776, Employment Authorization card.
• A foreign passport with Form I-94 or Form I-94A with Arrival Departure Record, and containing an endorsement to work.
Temporary Protected Status
In 1990 the U.S. Congress enacted Temporary Protected Status (TPS), which provides legal status to migrant nationals who file for this protection and are from countries that have armed civil unrest, natural disasters or other extraordinary and temporary conditions.
The U.S. Department of Homeland Security states that TPS is a temporary benefit which does not lead to lawful permanent resident status or give any other immigration status. TPS does, however, allow a migrant national from one of those countries to stay in the United States for up to 18 months, and this time can be extended even indefinitely by the U.S. government.
In the past, this protected status has been granted to migrant nationals from 12 countries, according to the U.S. Citizenship and Immigration Services (USCIS) website: Nicaragua, Honduras, El Salvador, Haiti, Nepal, Syria, Yemen, Sudan, Somalia, South Sudan, Venezuela and Burma (Myanmar).
TPS can be granted to an individual who is a national of a designated country, has filed for this status during a specified registration period, and who has been continuously physically present in the United States since a designated date.
If an employee has this status, even though their Employment Authorization card has expired, they may remain working as long as their TPS has been extended. If one of your employees is in this situation, you may want to go to the USCIS website at www.uscis.gov to see if the TPS has been extended and also check with your attorney about what obligations apply.
A helpful fact sheet from the National Immigration Forum is available at immigrationforum.org.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.