Have you experienced the frustration of wanting to hire someone with an expired EAD?
You’ve completed the arduous process of finding the perfect candidate for the job. This person fits the bill perfectly. Beyond having the necessary skills and experience, they also have the right personality and attitude to fit into the team seamlessly. Better yet, everyone agrees that this candidate is the one!
Now comes time for the onboarding process. You’re filling out the Form I-9, and then it happens. You’re presented with an EAD, but it’s expired!
All the time, effort, and money put into the talent search goes down the drain in an instant. Must you rush through the talent search all over again? Would you have to settle for a candidate that was less than stellar?
But wait… do you really have to keep searching? Is there an option besides “Give up” when you find yourself wanting to hire someone with an expired EAD?
The candidate protested that the EAD extension was in the works, but it just hadn’t come through yet.
We have good news! This may mean they are eligible for an automatic EAD extension. Here’s how to tell and how to handle it on the Form I-9.
What should the employer check first?
- The category code on the EAD must match one of these categories: A03, A05, A07, A08, A10, C08, C09, C10, C16, C20, C22, C24, C31, and A12 or C19.
The “received date” on the Form 1-797C must be on or before the “card expires” date listed on the EAD.
- The category code on the EAD must match the category code on the Form I-797C. (A12 and C19 should be considered the same code.)
Be aware that some category codes on the EAD may include the letter “P” (e.g., “C09P”). If that’s the case, disregard the letter “P” when comparing the category code to the receipt notice. That means “C09P” and “CO9” should be considered a match.
How should the employee fill out Section 1 of the Form I-9 if the employee does qualify?
The new employee should select the option “An alien authorized to work until”. Then enter the day that the automatic extension period expires as the “employment authorized until mm/dd/yyyy” date. Do not list the expiration date listed on the EAD.
How should the employer fill out Section 2 of the Form I-9 if the employee does qualify?
You must review both the I-797C Notice of Action and the expired EAD. Then enter the I-797C Notice of Action’s receipt number as the document number.
Under the Expiration Date field, enter the day that the automatic extension period expires, not the expiration date listed on the EAD.
How do I figure out the new expiration date?
The new expiration date is exactly 180 days from the date the current EAD expires.
Be aware that the EAD immediately expires if the employee’s renewal application is denied, even if that occurs before this 180-day period is over.
When do I need to reverify?
You must reverify when the automatic extension expires.
As usual, the employee must present a document from List A, a document from List C, or an acceptable List A or List C receipt described in the Form I-9 Instructions.
Do you want to hire a talented foreign national but just don’t see a way to make it happen?
Consult with an immigration attorney. Sometimes when one path is closed, another opens up! You may actually be able to hire someone with an expired EAD. But you won’t know unless you seek professional guidance.
Originally published June 1, 2018. Updated January 27, 2023.