Employment Authorization Expiration: What Employers Need to Know

Heard it on the Hotline

Employers should have a process for tracking the expiration dates of employees’ temporary work authorization. When an employee’s authorization is set to expire, employers should remind the employee that they must provide documentation showing they are still authorized to work in the United States.

Start the Process Early

Because work authorization renewals can take time, employers may want to notify employees several months before their current authorization expires. This gives employees time to begin or follow up on the renewal process with their immigration attorney or the appropriate government agency.

Early notification can help reduce the risk of an employment interruption if the renewal process takes longer than expected.

Once the employee provides updated documentation establishing continued work authorization, the employer should complete the required employment authorization reverification process.

What If the Renewal Is Delayed?

Even when an employee starts the renewal process well before their authorization expires, there may be situations where the new authorization is not received before the current authorization expires.

In general, an employer cannot continue employing an individual if the employer knows or has reason to know that the individual is no longer authorized to work in the United States.

Some employers have considered placing the employee on unpaid leave of absence while awaiting the renewed authorization. However, the Immigration Reform and Control Act (IRCA) prohibits an employer from continuing to employ an individual when the employer knows, or has reason to know, that the individual is no longer authorized to work, so placing the employee on leave is not an option.

Therefore, if an employee’s work authorization expires and the employee cannot provide documentation establishing continued authorization to work, employers should generally end the employment relationship rather than place the employee on unpaid leave.

Employers that knowingly continue to employ an individual who is not authorized to work may face civil penalties and fines. A pattern of violations may also result in criminal penalties.

Changing the Employee to an Independent Contractor Does Not Solve the Problem

Employers may also wonder whether they can continue working with the individual by changing their classification from employee to independent contractor.

Changing an individual’s classification does not resolve the work authorization issue. If an employer knows that an individual is no longer authorized to work in the United States, the employer generally cannot continue to permit that individual to perform services for the organization, whether as an employee or an independent contractor.

Have a Consistent Process

Employers should have a consistent process for:

• Tracking expiration dates for temporary employment authorization.
• Providing employees with advance notice of upcoming expirations.
• Allowing employees sufficient time to obtain updated documentation.
• Completing employment authorization reverification when required.
• Taking appropriate action when an employee cannot establish continued work authorization.

Immigration law is a rapidly changing area of employment law. Employers should work closely with their immigration counsel to make sure their employment authorization practices and procedures remain compliant with current requirements.