Has Your Employee’s I-9 Work Authorization Document Expired? Tips For What To Do

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September 7, 2021

As an employer, you are well aware of the initial paperwork that goes into hiring a new employee.  Among the necessary documents, employers must use Form I-9 to verify the identity and employment authorization of individuals hired for employment in the United States.  All U.S. employers must properly complete Form I-9 for each individual they hire for employment in the United States.  This includes citizens and noncitizens.  Both employees and employers (or authorized representatives of the employer) must complete the form.

On the form, an employee must attest to his or her employment authorization.  The employee must also present his or her employer with acceptable documents evidencing identity and employment authorization.  The employer must examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appear to be genuine and to relate to the employee and record the document information on the Form I-9. The list of acceptable documents can be found on the last page of the form.  You as the employer must retain Form I-9 for a designated period and make it available for inspection by authorized government officers.

So here is the scenario.  What if your employee’s work authorization expires at some point during his or her tenure at the company? The answer comes down to the work status of the employee in question.

Follow this helpful flowchart for the rundown:

• If your employee has Permanent Work Authorization (employee is a US citizen born here or abroad or is a permanent resident) à Examples of I-9 documents: passport, SS card, or Permanent Resident card à Employee may continue work if the document expires.

• If your employee has Temporary Work Authorization (see exception below for employees who have Temporary Protected Status) à Examples of I-9 documents: Form I-776, Employment Authorization card or foreign passport with Form I-94 or Form I-94A with Arrival Departure Record plus endorsement to work à Employee may not continue work if the document expires (new document must be obtained; pending renewal or attorney representation is insufficient).

• If your employee has Temporary Protected Status (TPS) (migrant national who has filed for protection from a country with armed civil unrest, natural disasters or other extraordinary or temporary situations; see U.S. Citizenship and Immigration Services (USCIS) website for specifics) à I-9 document: Temporary Work Authorization à Employee may continue work if Temporary Work Authorization expires so long as the TPS has been extended.

Contact McKague Rosasco LLP with any questions about new hires, employment authorization or if you would like to update your employee handbooks.