How to proceed when an employee’s work authorization expires

Q: We have a foreign-born employee who has been waiting for an appointment to renew her work authorization since November 2022, but it has now expired. How long can we allow her to take a leave of absence? Or would it be best to end her employment because she currently doesn’t have legal status to work in the United States?

There are different kinds of employment authorizations depending on the nature of the worker’s immigration status, and the rules differ accordingly. Some workers must stop work when their employment authorization document (EAD) expires. Some workers are allowed to continue working once they have a receipt notice for their I-765 application to renew employment authorization, including F-1 student visa holders who filed a timely application for a STEM extension of optional practice training (OPT). Some workers may continue working after their EAD expires, including most recently nationals of Hong Kong approved for Deferred Enforced Departure.

First, ask the employee if they can point you to the rules for their particular category of EAD, either from the immigration attorney handling their case or from their own research at the USCIS website.

The USCIS website has pages describing each visa status and the associated employment eligibility. The website also has I-9 Central (https://www.uscis.gov/i-9-central), which is where you can find Form I-9. It’s easy for employers to overlook the I-9 instruction document and the M-274 Handbook for Employers, which are where many answers about EADs can be found.