President Barack Obama’s executive order expanding Deferred Action for Childhood Arrivals (DACA) eligibility and work authorization met a another roadblock when a federal District Court threatened to sanction the Secretary of Homeland Security and senior DHS officials for issuing three-year Employment Authorization Documents (EADs). The court previously enjoined implementation of expanded DACA, including issuance of EAD’s valid for three instead of for two.
In May 2015, U.S. Citizenship and Immigration Services (USCIS) began sending letters to the approximately 2,000 three-year EAD recipients instructing them to return the EADs to USCIS and stating that they would be issued a two-year card instead. During the week of July 6, 2015, USCIS sent a second letter to those who had not yet returned the EAD. This letter provided, “USCIS must receive your EAD by July 17, 2015. Failure to return the invalid EAD without good cause may affect your deferred action and employment authorization.” USCIS also indicated that its officers will begin visiting individual homes to retrieve erroneously issued three-year EADs not otherwise returned.
With all the drama surrounding these events, little attention has been given to the effect the recall has on individuals relying on Form I-9 verification using a three-year EAD. Since USCIS has stated that these documents are invalid, the documents cannot be accepted for I-9 verification as a List A document. Employees initially verified using a three-year EAD may present a newly issued two-year EAD. Employers will need to update the existing Form I-9 to reflect this. The government has not yet provided additional guidance to employers as to how this update is to be recorded on Form I-9.
If an employee previously presented an EAD with a three-year expiration date and has not notified you that he or she has a new EAD, you should contact legal counsel.