REVERIFYING EMPLOYMENT AUTHORIZATION

BRIDLEY · June 2004

MUST I TERMINATE AN EMPLOYEE WHO HAS A RECEIPT SHOWING THEY HAVE APPLIED FOR NEW WORK AUTHORIZATION IF CURRENT AUTHORIZATION EXPIRES BEFORE NEW WORK AUTHORIZATION CARD HAS BEEN RECEIVED? I BELIEVE THEY MUST HAVE UPDATED CARD IN HAND BUT I'M NOT CERTAIN.

Don D · June 2004

Exactly what type of document has expired?

BRIDLEY · June 2004

Thanks for your response. This would be an employment authorization card which is issued for the period of 1 year to work in the US by Dept of Immigration

Pricehcs · June 2004

[font size="1" color="#FF0000"]LAST EDITED ON 06-18-04 AT 10:19AM (CST)[/font][br][br]Are you talking about an F-1 Practical Training year authorization or a NAFTA TN-1 year authorization?

For the former, you are on a very short leash with the INS, and cannot have an employee working without an active, legitimate visa. The next step in this progression is generally an H-1, which can take anywhere from 30 days to the back end of a year, depending on how much money you're willing to spend and when on the calendar year you are applying.

For the latter, the same rules apply, however it is a heck of a lot easier to have the employee run to the border to renew a TN-1 than to wait for the H-1 to come through the INS...

Edit: You may find this website helpful. [url]http://uscis.gov/graphics/services/employerinfo/index.htm[/url]

#1 thing a consultant shouldn't say: "I could tell you the answer right now, but we're committed to a three month project..." #-o

Don D · June 2004

That's what I was trying to get at. A variety of cards are issued. Some have expiration dates that are drop dead dates. If you have an employee on an approved H1-B track, then the receipt will suffice until the status is updated. The government allows certain types of grace periods for student/work documentation.........and on and on.

HR in Okla · June 2004

I've been trying find out for some time if we are "legal" in continuing to employ someone on
"indefinite asylum status." She has worked for us for 12 years. Her employment authorization has been from year to year. September 2001 was approved to Sept. 2002. That's the last update I have.

Meanwhile, she applied for adjustment to permanent residence status May 2000.

I have checked the status on-line for her with her receipt number and continue to get notice that is is taking 570 to 600 days to process this type application. It's been 1400 days!

She said they haven't sent her another employment authorization, because the green card is pending.

I know INS is backed-up, but I'm concerned about the length of time involved here and not having current documents, except an I-94 that says "indefinite". She is a super employee and we want to keep her!

Any advice here?

Don D · June 2004

It will cost you, but the only way you will get satisfaction is to talk with an employment attorney with immigration experience. He/she will know exactly what letters should be written to whom, and which, if any, forms need to be executed. If nothing else, he will be able to give you and her guidance on what your employee should or should not do, such as not leaving the country under any circumstances or risk not being allowed to return. It is not only risky for her to remain illegally, but can cost your company a ton of money if you're fined. The last amount I heard from our attorneys was a $10,000 fine plus $1000 per day illegally employed.

HR in Okla · June 2004

Thanks, I believe she is legal. I'm just not sure about employment status, we probably aren't on solid ground. Her permanent resident status is still pending, but we've thought she'd have any time now...for a long time.

HR in Okla · June 2004

Don, I talked with her today and she insists that her attorney says with "indefinite asylee status" she doesn't need to renew her work authorization unless she just wants spend money to "please" her employer.

This is like being between a rock and a hard place. She offered me the attorney's name. Think I should call him?

System · June 2004

Having experienced this, I would not talk with the employee's lawyer. I would seek the help of a third party. Our own experience was that the employee's attorney was not completely up front with us and told us things designed to keep the individual employed. We have an employee with an employment authorization card who is very close to obtaining US citizenship - he presents the renewed card each year without us reminding him.
Linda Emser

Don D · June 2004

Agree 100% with Linda. For some reason, lawyers representing aliens are notorious for misrepresenting the truth. Notorious with a capital 'N'.

HR in Okla · June 2004

Thanks Linda and Don. Your advice doesn't come as any surprise to me.

I just can't convince the employee that authorization to remain in the U.S. and authorization to be legally employed may not be exactly the same.

Don D · June 2004

It's another losing battle. Every alien I have ever worked with in an employment relationship has a relative or friend in either L.A. or Detroit who is an expert on the immigration process and from whom they receive daily recommendations, typically wrong. That plus the lawyer whom they think is trying to assist them makes it really tough to get through to them frequently. I finally told one "If you come into my office one more time with an email from some guy in Detroit challenging everything we have done on advice of counsel, I am going to terminate your employment with this company." I don't reckon I would have done that, but he never brought in another email.

Whatever · June 2004

Had the same situation recently. However, they got a letter from INS not only stating that the application for the new card had been received and the response would take about 90 days and the ee was authorized to work for those 90 days. On two occasions, the ee has gone onto the website and showed me that they had been approved but that the new card had not been issued yet. When the new card was received they brought it in. However, in the meantime, they did continue working.

System · June 2004

Remember that keeping up with an employee's identification and work status is the employee's responsibility, not yours. I can't tell you how many hours I have burned researching the internet and sitting on hold for INS to "help" in thiskind of situation. No more. Set your boundaries with the employee now - don't spend your time and energy finding out what the employee should do other than to get legal advice from a third party (and document all your discussions). Let the employee know that unless you receive an APPROVED application from INS with approved renewed work status, or the renewed card itself, employment will be terminated. When their right to work expires, so does your right to employ them. It's a tough situation, but it boils down to individual responsibility. Let us know how this turns out.
(PS: DonD, you are the first person to agree 100% with me in, let's see...let's just say it's been a while! Thank you!)

REVERIFYING EMPLOYMENT AUTHORIZATION

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