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Questions And Answers with Gary Endelman

by Gary Endelman

RE: Reverifying expired but timely applied for EADs:

Question:Must an employee with an expired EAD although another in production be terminated and rehired? Or can they be suspended pending production? If so how do you reverify in sec 3 since it's a substantive violation not to date by expiration. And how would you indicate period of unemployment without filing in a "rehire" (which seems to presume full termination) date?

The M-274 employer's handbook page 20 recognizes a period of nonwork and since IRCA's aimed at unlawful employment that argues that employer might suspend an employee with an expired EAD until a newly applied for EAD arrives. And the attached AILA infonet doc distinguishes between a "leave of absence" vs Loss of job as a reason to expedite EAD production so might leave be an alternative to loss since mentioned in this context? But if so then how do you reverify in compliance with sec. 3?

Answer: Despite what some readers may think, it is not enough to apply for a new Employment Authorization Document (EAD) before the current EAD expires. Unfortuntely, no continuing work authorization flows from such a timely renewal. EAD extension requests are conspicuously absent from the various NIV extensions noted in 8 CFR 274a.12 (b)(20) affording automatically continuing work authorization for 240 days. Unless a new EAD comes through prior to expiration of current one, you must go off payroll and stop working. There is no grace period. Any amount of unauthorized employment is a serious immigration violation Interestingly, in the famous leaded memo to USCIS Director Alejandro Mayorkas, senior USCIS management, including the Chief Counsel and the Director of Service Center Operations, recommended that USCIS treat EAD renewals precisely as it does with H or L extensions. See (Page 8, Question #3) From the employer’s perspective, allowing continued employment following EAD expiration is a risky business exposing that employer the substantive charge of knowingly continuing to employ an alien who lacked permission to work.

What should HR do in such a situation? Typically, they are loath to terminate the person since this involves a lot of paperwork and, perhaps equally importantly, has an adverse impact upon their service time for pension purposes while also depriving them and their family of medical insurance benefits. Is there an alternative to termination? How about an unpaid leave of absence? If we look at 8 CFR 274a.1(f) for the definition of “employee”, we note that an “employee” must “provide services or labor for an employer for wages or other remuneration…” Also, an “employer” as defined in 8 CFR274a,1(g) is someone who “engages the services or labor of an employee…” Note the focus on “services or labor”. Arguably, if someone is placed on an unpaid LOA, but does nothing else, no provision of services or labor, then that person does not come within the definition of an “employee” for I-9 sanctions purposes. However, being a nice guy as an employer could have unpleasant I-9 consequences.

One of the disadvantages of using an LOA as an alternative to outright termination is that “ a leave of absence is not considered a loss of the job” (AILA INFONET Doc. No. 10080467- posted Aug.5, 2010)( also posted at http:/// ) for purposes of making an inquiry to the Service Center in the hope of expediting production of the new EAD. Also, by continuing to provide alien with benefits, such as medical and pension coverage, is the employer still treating the alien as an employee at a time when he or she lacks permission to work? This is a grey area and it is incumbent upon the attorney to raise these concerns with HR to determine their comfort level. However, use of an unpaid LOA will frequently be a more attractive option and one calculated to cause far less internal dislocation than outright termination. The alien must be taken off payroll when the EAD expires and not allowed to return to the work (even on an unpaid or volunteer basis which itself triggers potential concerns under the Fair Labor Standards Act) unless and until the new EAD comes through. At that time , but not before, HR can then complete Section 3 on the I-9 to bring the alien’s work authorization up to date. If Section 3 has already been completed, simply fill out a new I-9 and keep the two I-9 documents together. Do not accept electronic confirmation of EAD renewal since such on-line approval is not a valid I-9 document. Wait for the actual card!

From an I-9 perspective, it may be more prudent to complete a new I-9 since bringing the alien back under these circumstances where the original work authorization has expired could well be considered a new “hire”. While you could make an argument that the alien on an unpaid LOA had a “reasonable expectation of employment”, in which case there would not be a new hire and you could use Section 3 on the I-9 form with some degree of confidence, your friendly ICE investigator might conclude that the alien was not continuing in his or her employment and lacked a reasonable expectation of being recalled. Take a look at page 20 of the new I-9 Employer Handbook:

Clear as mud ? Enjoy!

About The Author

Gary Endelman obtained a B.A. in History from the University of Virginia, a Ph.D. in United States History from the University of Delaware, and a J.D. from the University of Houston. From 1985 to 1995, he worked at Tindall & Foster. From 1995 to 2011, he has worked as the in-house counsel for BP America Inc. and BP handling all U.S. immigration matters. Dr. Endelman is Board Certified in Immigration and Nationality Law from Texas Board of Legal Specialization. He is a frequent speaker and writer on immigration related topics including a column on immigration law. He served as a senior editor of the national conference handbook published by the American Immigration Lawyers Association (AILA) for a decade. In July 2005, Dr. Endelman testified before the United States Senate Judiciary Committee on comprehensive immigration reform. Dr. Endelman is the author of SOLIDARITY FOREVER: ROSE SCHNEIDERMAN AND THE WOMEN'S TRADE UNION MOVEMENT published in 1978 by Arno Press. He can be reached at ILW.COM has launched an experimental feature in Immigration Daily: "Questions And Answers with Gary Endelman". We encourage immigration professionals, including HR professionals, to send in any questions they may have on immigration law and policy to with "Gary Endelman" in the subject line. Mr. Endelman will answer selected questions in Immigration Daily on a regular basis.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.