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How many times have you had to terminate an employee with an expired Employment Authorization Document (EAD) who had filed for a new EAD card but who was waiting for the U.S. Citizen and Immigration Services (USCIS) to issue the new EAD card? That sorry situation may be a thing of the past if a new rule survives the change in administrations.

On November 18, the Department of Homeland Security issued a final rule intending to provide greater stability and flexibility to foreign nationals and greater certainty to U.S. employers who employ or who intend to employ foreign nationals. Many of the areas addressed in the rule simply formalize policy statements and practices that the USCIS has developed over the last sixteen years relating to H-1B holders and foreign nationals pursuing employment-based permanent residence.  The new rule also amends the regulations for the Form I-9 process, 8 CFR §274a, providing an automatic 180 day extension of work authorization for certain EAD holders.

The new rule automatically extends the validity period of the EAD and employment authorization for up to 180 days from date the EAD expires, if:

  1. The individual properly filed an application to renew the EAD before the current EAD expired;
  2. The application to renew the EAD is based on the same employment authorization category as shown on the face of the expiring EAD or is for an individual approved for Temporary Protected Status; and
  3. The individual remains eligible to apply for work authorization.

The 180 day period automatically ends if the USCIS denies the request for a new EAD.

In the case of a new hire, an EAD that has expired on its face is considered unexpired for I-9 purposes when it is presented with a Notice of Action (Form I-797C) that demonstrates that the applicant/employee meets the three criteria above.

The new rule goes into effect January 17, 2017, three days before Donald Trump’s inauguration. We will have to wait and see what effect the change in administration has on the new rule. Regardless, the best practice is still to alert employees 120 days prior to the expiration of their EAD so they can apply for a new EAD plenty of time before their work authorization expires.

One final note. The new Form I-9 that employers must use on or before January 22, 2017, says nothing about this 180 day automatic extension.

Stay tuned. I may have to post a never mind.