March 24 Tip of the Week

“Are They or Aren’t They Authorized…?”

Determining the work eligibility of an employee used to be relatively straight forward.  Did they possess the identification documents required by law, meaning did they provide you with a document that meets the Category A requirements or did they provide you with a combination of documents that meet the requirements of Categories B and C?  As the immigration laws have changed and the status provided to individuals who have immigrated to the United States from a wide variety of countries have been discontinued or materially modified, employers are increasingly finding it difficult to determine with any certainty as to whether a specific employee is authorized to work in the United States. 

The Department of Homeland Security has rescinded the protected status of immigrants from Haiti, Syria, Burma, Somalia, Ethiopia, and South Sudan.  These rescission decisions have been challenged in the courts and these challenges have often resulted in a stay in the application of the change in status.  In other words, although the Department of Homeland Security has decided to change the legal status of immigrants from these countries, which would negatively impact the ability of affected individuals to work in the United States, the courts hearing the legal challenges have prevented the Department of Homeland Security from implementing the proposed changes.  These court stays generally act to extend the existing work authorizations of immigrants from these countries for approximately two weeks pending the outcome of the court cases.  Unfortunately, each of these status determinations that are being challenged in the courts are subject to different expiration dates depending on when the cases were filed and the length of the stay issued by the court. 

Employers who are dealing with employees who are working with employment authorization documents that are subject to these changed rules will need to stay on top of the court cases and the guidance issued by the Department of Homeland Security.  The E-Verify website contains a “What’s New” page that includes notices of the changed circumstances for immigrants from these countries and provides guidance regarding the date when their protected status will end.  You can access that website and that page here:  https://www.e-verify.gov/about-e-verify/whats-new.  Given the current climate surrounding immigration and the status of immigrants who are currently authorized to work in this country, employers should be taking particular caution in terms of monitoring the expiration dates of the documents provided by employees to establish their work authorization. 

If an employee’s documentation contains an expiration date, then the employer should reach out to ensure that the employee is authorized to work beyond that expiration date.  In the past, if an employee provided a receipt that demonstrated that they applied for renewal of their employment authorization document, that receipt would generally allow the individual to work for an additional 540 days.  This automatic extension rule has also been modified by the Department of Homeland Security.  In fact, receipts for renewal applications are only eligible for the 540-day extension if they were filed by July 21, 2025.  Any renewal applications filed between July 22, 2025 and October 29, 2025 may be eligible for a one-year extension subject to the validity of the individual’s temporary protected status. For renewal applications filed after these dates, there is no more automatic extension and employees must show employment authorization documentation that is current to remain employed in the United States. 

The work authorization rules are currently in a state of flux and it is important for employers to stay up to date on the changes that are happening almost daily.  myHRcounsel can support you in ensuring that you are correctly hiring and retaining individuals who have work authorizations that are related to their status as immigrants.