Limited Employment Authorization After Applying for Replacement EAD

 

Introduction

In general, a nonimmigrant who is not employment authorized incident to status or must present a valid and unexpired Employment Authorization Document (EAD) in order to be work-authorized. This presents a difficult situation for an individual whose valid and unexpired EAD was either lost, stolen, or destroyed. Under certain circumstances, a nonimmigrant may be able to establish eligibility to work while he or she procures a replacement EAD. In this article, we will explain what a nonimmigrant would be required to do in order to work for 90 days while waiting for a replacement EAD.

Application for Replacement EAD

To learn about applying for replacement EADs, please see our two main articles on the subject:

  • Applying for a replacement EAD because the EAD was lost, stolen, or destroyed, or because the EAD contained incorrect information due to USCIS error [see article]; and
  • Applying for a replacement EAD because an approved EAD was not delivered to the applicant in the mail [see article].

Applicable Regulation

8 C.F.R. 274a.2(b)(1)(vi) sets forth special rules for receipts.

This regulation provides that a nonimmigrant whose EAD was lost, stolen, or destroyed may present a receipt for the application for a replacement EAD in lieu of the EAD in the following circumstances set forth in 8 C.F.R. 274a.2(b)(1)(vi):

  1. The nonimmigrant is unable to provide the required document within the time specified because the document was lost, stolen, damaged, or destroyed;
  2. The nonimmigrant presents a receipt for the application for the replacement document within the time specified in the section; and
  3. The nonimmigrant presents the replacement document within 90 days of the hire, or in the cases of reverification, the date the employment authorization expires.

Under 8 C.F.R. 274a.2(b)(ii), the employer is required to assess the employee's credentials for employment authorization within three business days of the hire.

Under 8 C.F.R. 274a.2(b)(iii), if the employer hired the individual for a duration of less than three business days, he or she may not accept a receipt for an application for a replacement employment authorization document as described in 8 C.F.R. 274a.2(b)(1)(vi).

8 C.F.R. 274.a.2(b)(1) requires employers to accept the receipt for the application for the replacement document unless the employer, recruiter, or referrer for a fee “has actual or constructive knowledge that the individual is not authorized to work…” The United States Court of Appeals for the Third Circuit ruled against an employer in Getahun v. OCAHO, 124 F.3d 591, 595-96 (3d Cir. 1997) [PDF version], for terminating an employee within 90 days after the employee had filed a receipt in accord with 8 C.F.R. 274a.2(b)(1)(vi).

The regulation applies to applications for replacement documents in List A, B, or C on the Form I-9.

76 FR 21225, 21227, (Apr. 15, 2011) [PDF version] makes clear that an employer may not accept an expired EAD. There are very limited exceptions for when EADs are automatically extended under specified conditions, usually arising in the Temporary Protected Status (TPS) context [see example].

It is important to remember that 8 C.F.R. 274a.2(b)(1)(vi) refers only to receipts for applications for replacement employment documentation. On June 17, 1996, then Deputy General Counsel of the Immigration and Naturalization Service (INS), Lori Scialabba, wrote a letter making clear that 8 C.F.R. 274a.2(b)(vi) does not apply to receipts “for an initial application for work authorization or an application for renewal of expired work authorization” (see AILA Doc. No. 96061790).

Specific Guidance for Non-Delivery of an EAD

On its website, the USCIS addressed a question from a user whose Form I-765 had been approved, but who did not subsequently receive an EAD by mail. The individual wanted to know if it was possible to receive temporary evidence of employment authorization.

The USCIS responded that an individual in this situation who has not received his or her EAD within 30 days of the date of approval may be eligible to make a Non-Delivery of Employment Authorization Document service request referral to the Service Center that had issued the EAD. The USCIS stated that the individual could call the USCIS's toll-free hotline or make an inquiry online using the Non-Delivery of Card form.

Interestingly, as we note in our general non-delivery of a card article, the USCIS states on the form page that individuals should wait approximately 120 days before making such a request. However, bearing in mind that the USCIS question and answers page does not necessarily reflect authoritative guidance, the USCIS recommends making a service request for a non-delivered EAD once 30 days have elapsed. Intuitively, this makes sense considering the fact that the receipt for the replacement EAD may allow the applicant to work for 90 days. In such a situation, the individual should consult an experienced immigration attorney for case-specific guidance.

You may read the question and answer here [PDF version USCIS — Help Center — Answer for My Form I-765 was approved, but I have not received my EAD].

Interesting Guidance in 2014 AILA-USCIS Q&A

On its website, the USCIS has published a November 6, 2014 Q&A titled “AILA Verification and Documentation Liaison Committee Joint Meeting with USCIS Verification Division and ICE Homeland Security Investigations” [PDF version]. The document has contains two interesting questions and answers worth examining in this article. For those interested in following along, we will be examining point 5 on pages 3-4 of the PDF.

Form I-797 Approval Notice Does Not Establish Eligibility

First, AILA asked if a Form I-797 approval notice for a Form I-765 employment authorization application is acceptable as a List C document for employment authorization verification purposes. AILA posed the question with specific reference to a situation where an EAD card had been lost in the mail. The USCIS responded that the Form I-797 approval notice clearly states that it is not evidence of employment authorization. Accordingly, the approval notice cannot be used to establish eligibility to engage in employment. The USCIS stated that, in the non-delivery of an EAD card context, the employee may present a receipt for the application for a lost EAD card in order to be eligible to work for 90 days. In short, the USCIS's position is perfectly in accord with the regulation in 8 C.F.R. 274.a.2(b)(1)(vi).

Question and Answer on OPT EAD

AILA noted that employees who had been approved for OPT EADs were facing government glitches in card production. AILA explained that in some cases, the applicant had been able to secure a letter from the USCIS on the situation. Regarding such letters, AILA had three questions:

  1. May the employer accept the original of the letter for Form I-9 employment eligibility verification purposes?
  2. Should the letter be treated as a “receipt” under the 90-day rule in 8 C.F.R. 274a.2(b)(vii)?
  3. When should an E-Verify employer run E-Verify in such a case?

The USCIS explained that some employment authorization documents issued by the Department of Homeland Security (DHS) may be eligible for use as C#8 documents for I-9 purposes.

In the case of a letter, the USCIS explained that a letter from a USCIS field office issued to an individual may qualify as a List C#8 document if it states that the individual may use the letter as proof of employment authorization for a specific period of time. However, the letter must include that information in order to be acceptable for Form I-9 purposes. The USCIS made clear that if the letter does not state it can be used as proof of employment authorization, it is not acceptable. If the document is acceptable, a Form I-9 employer or an E-Verify employer should document the document in accordance with the usual procedures.

Conclusion

Losing an EAD or having an approved EAD not delivered is frustrating for any nonimmigrant trying to work in the United States. A nonimmigrant is well advised to consult with an experienced immigration attorney for guidance on ensuring that he or she not only applies for a replacement EAD as soon as possible, but also on ensuring that he or she can establish eligibility to work in the interim in an expeditious fashion. Nonimmigrants should be diligent in following the proper procedures due to the potential immigration consequences of unauthorized employment.

Employers with questions about documenting employment eligibility should also consult with an experienced immigration attorney in the field of employment immigration. However, it is important for employers to know that 8 C.F.R. 274.a.2(b)(1)(vi) requires the acceptance of a receipt notice for a replacement EAD for the period mandated by the regulations.

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 1705, Print. Treatises & Primers.