Dykema Gossett PLLC

Immigration Focus

Employers Beware: Employment Authorization Extension Receipts Can Convey Ongoing Work Eligibility

Employers Beware: Employment Authorization Extension Receipts Can Convey Ongoing Work Eligibility

Does an Employment Authorization Extension Filing Receipt Mean That an Employee Can Continue to Work After Expiration of His or Her Employment Authorization Card? Well, Maybe…

The answer to this question in the past for Form I-9 compliance to prevent the ongoing employment of an unauthorized worker used to be fairly simple. The employer could rely on the expiration of the Employment Authorization Document (EAD/Form I-766) to determine that the employee could no longer work in the United States (U.S.), unless the employee had a new valid EAD or some other work authorization List A or C document. The receipt for the filing of an extension of the EAD (Form I-797) with U.S. Citizenship and Immigration Services (USCIS) was just that… a receipt.

On November 18, 2016, the Department of Homeland Security (DHS), however, published a Final Rule regarding the retention of immigrant workers and improvements affecting high-skilled nonimmigrant workers (Final Rule), which became effective on January 17, 2017. This Final Rule changed the approach and scrutiny level required by employers when presented with an EAD extension receipt. These receipts are printed by USCIS on an I-797 Notice of Action form. The I-797 form has typically included a legend across the top of the form stating, “THIS NOTICE DOES NOT GRANT ANY IMMIGRATION STATUS OR BENEFIT.” In addition, the filing receipt also normally did not include the EAD category code for the requested extension.

So, What Changed?

As of January 17, 2017, employers must review the EAD receipts for the filing of Form I-765 extensions to find the extension of work authorization category to determine if the receipt alone conveys ongoing work authorization of up to 180 days from the expiration of the EAD.

USCIS posted a Fact Sheet regarding the implementation of the Final Rule on January 30, 2017. The Fact Sheet notes that the Final Rule provides for an automatic extension of the validity period for certain EADs (Form I-766) for up to 180 days for individuals who:

  • Timely filed to renew an EAD (file before expiration);
  • Are applying to renew an EAD in the same category as the previous EAD (note an A12 and C19 are considered the same category for this extension); and
  • Are in a category that is eligible for extension.

The following categories of EADs are affected by this Final Rule:

  • (a)(3)   Refugee
  • (a)(5)   Asylee
  • (a)(7)   N-8 or N-9
  • (a)(8)   Citizen of Micronesia, Marshall Islands, or Palau
  • (a)(10)  Withholding of deportation or removal granted
  • (a)(12)  and (c)(19) Temporary Protected Status (TPS) (note TPS notice in Federal Register for automatic renewal)
  • (c)(8)   Asylum application pending
  • (c)(9)   Pending adjustment of status to permanent residence under section 245 of the Immigration and Nationality Act      
  • (c)(10)  Suspension of deportation applicants (filed before April 1, 1997), cancellation of removal applicants, and special rule cancellation of removal applicants under NACARA
  • (c)(16)  Creation of record (Adjustment based on continuous residence since January 1, 1972)
  • (c)(20)  Section 210 Legalization (pending Form I-700)
  • (c)(22)  Section 245A Legalization (pending Form I-687)
  • (c)(24)  LIFE Legalization
  • (c)(31)  VAWA Self-Petitioner

Please note that EAD extensions for L-2, E-1 and E-2 dependents, H-4, Deferred Enforced Departure (automatic renewal possible via Federal Register notice), and DACA were all excluded from this automatic extension.

The extension begins on the date the EAD expires and continues for 180 days unless the application is denied. Employees with a timely filed EAD application that is still pending may qualify for the 180 day automatic extension, even if that application was filed prior to the effective date (January 17, 2017) of the Final Rule.

Although dated as of January 22, 2017, USCIS posted revisions to the Handbook for Employers regarding I-9 completion in addition to a Table of Changes including those related to the Final Rule. Both of these releases, although dated January 22, 2017, were actually made available to the public on February 15th.

In addition, although employers obviously need to be able to identify the EAD category code on the Form I-765 filing receipts to determine if the 180 day automatic extension of work authorization applies, USCIS discovered that individuals who applied to renew their EADs between July 21, 2016, to January 16, 2017, were issued receipts without the EAD code. So, USCIS began to reissue these receipt notices.

Applicants with an EAD based on Temporary Protected Status (TPS) who filed their EAD renewal applications before January 17, 2017, already received a 6-month extension through the Federal Register notice that extended their country’s TPS designation. These TPS applicants will not receive a reissued receipt notice. All renewal applicants who file Form I-765 applications on or after January 17, 2017, including TPS renewal applicants, will receive Form I-797 receipt notices with eligibility category information and information about the 180-day EAD extension.

What to do?

When you receive a receipt (Form I-797) for an EAD extension application (Form I-765), carefully review the EAD code. You may have an employee that is entitled to continue to work for up to 180 days versus being terminated or suspended from work. Proceed with caution.

For more information, please contact the author of this alert, Kathleen Campbell Walker (kwalker@dykema.com) or other immigration practice group members Heather Frayre (hfrayre@dykema.com) and Jim Aldrich (jaldrich@dykema.com).