Is an employer required to terminate an employee if the employee's work permit expired and he or she is waiting for the new one?

Author: XpertHR Editorial Team

Maybe. If an employee has applied for an extension of an employment authorization document (EAD), but does not have the document at the time of reverification, an employer is not required to terminate that employee as long as the decision is consistent with its internal workplace policies.

However, during the time between the expiration of an employee's EAD and when the employee presents new work authorization documentation, the employee should not work and should not be paid.

In some situations, an employee whose work authorization has expired could be eligible for a 180-day automatic extension. To be eligible for a 180-day automatic extension, the following conditions must be met:

  • The employee filed for a renewal EAD before the employee's current EAD expired;
  • The employee's EAD renewal notice (I-797C) is under a category that is eligible for an automatic 180-day extension (A03, A05, A07, A08, A10, C08, C09, C10, C16, C20, C22, C24, C31, A12 or C19); and
  • The category on the employee's EAD matches the category on the I-797C.

If these conditions are met, then an employee's EAD would be automatically extended for an additional 180 days.