According to 8 C.F.R. 274a.2(b)(ii), employers must review an employee’s eligibility for employment authorization within three business days of hiring. This evaluation is conducted using the I-9 Employment Eligibility Verification form.
In general, a nonimmigrant who is not employment authorized incident to status must present a valid and unexpired Employment Authorization Document (EAD) to be work-authorized.
This situation poses a challenging scenario for individuals with a valid and unexpired Employment Authorization Document (EAD) that has been lost, stolen, or destroyed. However, an individual may have the opportunity to demonstrate their eligibility to work for a 90-day period while awaiting a replacement EAD.
An employer can only accept a receipt for a pending Employment Authorization Document (EAD) if the receipt is for a replacement EAD due to loss, theft, or damage of the original document. However, this receipt enables an applicant to work for 90 days only while awaiting approval of their replacement EAD application. Once the approval comes from USCIS, the approval notice alone is not sufficient for employment eligibility, instead, the actual EAD document must be presented to the employer.
This regulation that provides for the above rule is found in 8 C.F.R. 274a.2(b)(1)(vi). Note that if the employer has actual or constructive knowledge that the individual is not authorized to work the employer cannot accept the individual for employment even if the receipt is presented. The regulation sets forth three requirements:
- Lost or stolen or damaged EAD card
- Presented receipt by the employee of the filing for a new EAD
- Employee presents the replacement EAD within 90 days to the employer
Here is the language found in 8 C.F.R. 274a.2(b)(1)(vi):
(vi) Special rules for receipts. Except as provided in paragraph (b)(1)(iii) of this section, unless the individual indicates or the employer or recruiter or referrer for a fee has actual or constructive knowledge that the individual is not authorized to work, an employer or recruiter or referrer for a fee must accept a receipt for the application for a replacement document or a document described in paragraphs (b)(1)(vi)(B)(1) and (b)(1)(vi)(C)(1) of this section in lieu of the required document in order to comply with any requirement to examine documentation imposed by this section, in the following circumstances:
(A) Application for a replacement document. The individual:
(1) Is unable to provide the required document within the time specified in this section because the document was lost, stolen, or damaged;
(2) Presents a receipt for the application for the replacement document within the time specified in this section; and
(3) Presents the replacement document within 90 days of the hire or, in the case of reverification, the date employment authorization expires;8 C.F.R. 274a.2(b)(1)(vi) (The Code of Federal Regulations (CFR) annual edition is the codification of the general and permanent rules published in the Federal Register by the departments and agencies of the Federal Government.)
Note that certain Afghan and Ukrainian Parolees Are Employment Authorized Incident to Parole. Read more here.
The Form I-797 approval notice of an approved work authorization application is not evidence of employment authorization. The approval notice itself cannot be used to establish eligibility for employment. A receipt for a replacement EAD can only be used to establish eligibility for employment for a 90 day period in case of loss, theft, or damage.
Remember, immigration laws can be complex and subject to change, so consulting with an experienced lawyer is crucial for employers to navigate employment eligibility matters lawfully and efficiently.
Have specific questions about EAD and employment eligibility? Reach out to us with your inquiry.