The issue of work authorization termination has become increasingly complex, especially in light of recent changes to various U.S. federal humanitarian programs and work authorization statuses. These changes have led to the revocation of critical statuses like Temporary Protected Status (TPS) and other parole programs, creating significant challenges for both foreign nationals and their employers.
As employers navigate the requirements under U.S. immigration law, they must balance their obligations to comply with federal work authorization rules while avoiding discrimination under the Immigration and Nationality Act (INA). The following guide outlines the key considerations for employers dealing with the loss of work authorization and the critical role of the “actual or constructive knowledge” standard in determining whether an employer is in violation.
Employers are obligated to ensure that every employee hired after November 6, 1986, is legally authorized to work throughout their employment. This responsibility is primarily handled through the completion of Form I-9, Employment Eligibility Verification, which requires employers to verify the employment eligibility of all new hires and to reverify work authorization when applicable.
However, the complexity arises when an employee’s work authorization status changes during their employment. While employers may have clear insight into the work authorization status of employees they sponsor (e.g., H-1B or L-1 visa holders), non-sponsored employees who rely on temporary work authorization, such as Employment Authorization Documents (EADs) or programs like Temporary Protected Status (TPS), create a unique compliance gap. This is where employers often face challenges.
The Grounds of Termination of Employment Authorization
Regulation 8 CFR § 274a.14 controls the circumstances under which Employment Authorization Documents (EADs) automatically terminate. This regulation is central to employers navigating the loss of work authorization of foreign nationals and managing compliance risks related to their foreign national employees’ authorization to work.
This regulation specifies three primary conditions under which an EAD automatically terminates. Understanding these circumstances and how they apply to real-world employer scenarios is crucial for businesses striving to remain compliant with U.S. immigration laws. Here is how the key provisions of 8 CFR § 274a.14(a) might impact employers.
- Expiration of the Employment Authorization Document (EAD)
The most straightforward ground for automatic termination under 8 CFR § 274a.14(a)(1) occurs when an employee’s EAD expires.
How this affects employers:
Employers must reverify an employee’s work authorization once their EAD expires. Failing to do so could lead to employing an unauthorized worker, which is a legal violation. Employers should use tracking systems to ensure timely reverification.
- Exclusion or Deportation Proceedings (8 CFR § 274a.14(a)(2))
Another ground for automatic termination is when exclusion or deportation proceedings are initiated against the employee. Under this section, if an employee becomes the subject of such proceedings, their work authorization is automatically revoked.
How this affects employers:
If an employee becomes the subject of deportation or exclusion proceedings, their work authorization is automatically revoked. Employers need to take action if they become aware of this, though they are not required to track these proceedings directly.
- Voluntary Departure (8 CFR § 274a.14(a)(3))
The third condition for automatic termination of work authorization is when an employee is granted voluntary departure.
How this affects employers:
If an employee is granted voluntary departure, their work authorization automatically ends. Employers must terminate employment once they become aware of this, either through the employee’s disclosure or other reliable sources.
The Role of “Actual or Constructive Knowledge”
A critical issue that arises is the actual or constructive knowledge standard. Employers are prohibited from knowingly employing individuals who are unauthorized to work in the U.S. under 8 USC § 1324a(a)(2). However, this standard is not limited to “actual” knowledge—constructive knowledge can also trigger liability for an employer. Understanding the difference between these two types of knowledge is key for employers trying to avoid compliance violations:
- Actual Knowledge: This is when the employer is directly informed or becomes aware that an employee’s work authorization has expired or been revoked. For instance, if an employee informs their employer that their Temporary Protected Status (TPS) status has been revoked or their EAD has expired, the employer has actual knowledge that the employee is no longer authorized to work.
- Constructive Knowledge: This occurs when an employer should have known that the employee’s work authorization was no longer valid. For example, if an employee’s EAD or Temporary Protected Status (TPS) status has expired and the employer fails to monitor or track the expiration dates, they may be deemed to have constructive knowledge that the employee is unauthorized to work, even if the employer was not explicitly informed.
Employers who fail to take reasonable steps to stay informed about their employees’ work authorization risks exposure to liability if they continue to employ individuals whose authorization has ended. This could involve civil penalties or, in some cases, criminal liability.
Impact of TPS-Based Work Authorization
If an employee’s work authorization is tied to Temporary Protected Status (TPS) designation, employers must stay alert to Federal Register notices and updates issued by the Department of Homeland Security (DHS). As outlined by I-9 Central, the DHS Secretary has the authority to designate a country for TPS or extend TPS status through Federal Register notices. This includes updates on the automatic extensions of TPS and Deferred Enforced Departure (DED) status. Additionally, eligible individuals without nationality who last resided in a TPS-designated country may also qualify for TPS.
Employers are specifically required to reverify employment authorization when an employee’s automatic EAD extension related to TPS ends. According to Section 6.1 of the Handbook for Employers (M-274), employers must reverify an employee’s work authorization no later than the date their authorization expires. Employers are also reminded that if an employee presents an EAD with an expiration date, reverification must occur.
Regarding TPS-related EADs, employers should keep in mind that Federal Register postings will provide updates on whether an expired EAD with category codes A12 or C19 is still valid as proof of work authorization. This is especially important when changes occur that impact on the validity period of an EAD.
Managing work authorization in an ever-changing legal landscape can be difficult, especially for employees in non-permanent immigration statuses. Employers must balance the risks of “constructive knowledge” and ensure that they are not inadvertently violating federal immigration laws by continuing to employ individuals whose work authorization has expired or been revoked. By staying proactive, using tracking systems, and remaining informed about program changes, employers can better navigate this complex issue and minimize the risks of non-compliance.