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May 05, 2022

Q&A: Temporary protected status may extend work authorization

HiringLeave LawsTermination & Resignation 

Question: Last year during the I-9 process, a new hire showed me a Form I-766 (Employment Authorization Document) as proof of eligibility to work. The card is expiring soon and I’ve asked for updated documentation to reverify their authorization to work, but they say they don’t have any new documents. Will I have to terminate them?

Answer: The Form I-766 or Employment Authorization Document (EAD) is a List A document—both proof of identity and work authorization. You’re correct that you need to reverify their authorization to work before the expiration date on the document. Your employee should coordinate with U.S. Citizenship and Immigration Services (USCIS) to maintain proper employment eligibility documentation. If your employee isn’t authorized to work in the U.S., you’ll need to either do an administrative termination or place them on an unpaid leave of absence.

However, you should also be aware that EADs can be provided in situations where people from specific countries with unsafe conditions have been granted Temporary Protected Status (TPS). For example, the Department of Homeland Security (DHS) has just designated TPS status for Ukraine. If the Category Code on the EAD is A12 or C19, then your employee is a recipient of TPS. Sometimes DHS will issue an automatic extension of expiring EADs for all TPS beneficiaries from a specific country. For example, USCIS has authorized an auto-extension for TPS recipients from Honduras through December 31, 2022. This means that these individuals’ Forms I-766 remain valid through the end of 2022, even if their documents appear to have expired. Before terminating an employee who isn’t able to provide an updated EAD, check the USCIS website on Temporary Protected Status to see if there has been an automatic extension or contact your Vigilant Law Group employment attorney and we can help you to determine if the document is still valid.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.