Here are my thoughts-
The Immigration Reform and Control Act of 1986 (IRCA), codified at INA § 274A(a)(2), makes it unlawful for an employer to "continue to employ" an individual the employer knows is unauthorized to work in the United States. However, the critical question is whether "continue to employ" requires full termination, or whether ceasing all work activity through unpaid leave satisfies the statute. IRCA defines "employee" as "an individual who provides services or labor for an employer for wages or other remuneration". Under this definition, an individual on unpaid leave who is neither performing services nor receiving compensation arguably falls outside the definition of "employee" for IRCA enforcement purposes
The Department of Homeland Security has not published formal guidance addressing whether employers must fully terminate or may use unpaid leave during an EAD gap. This absence of official guidance means both approaches-unpaid leave and termination/rehire-remain available to employers, with varying levels of legal risk. The Incalza v. Fendi Decision (9th Circuit) is insightful. Incalza v. Fendi North America, Inc., 479 F.3d 1005 (9th Cir. 2007). In that case, the U.S. Court of Appeals for the Ninth Circuit held that a gap in employment authorization did not constitute good cause for termination because a leave of absence was a viable alternative consistent with IRCA. The court reasoned that an employer should grant a leave of absence for a reasonable period of time when there is a gap in employment authorization, rather than proceeding directly to termination.
While this decision only controls in the Ninth Circuit (which does not include Nebraska), it is persuasive authority and reflects the most developed judicial reasoning on this issue. No federal appellate court has held that termination is required during an EAD gap
If you do face a gap in work authorization – your EAD expires but your renewal is still pending – you have limited options. You cannot work legally during this period. But you might be able to preserve your job.
Some employers are willing to place employees on unpaid leave of absence during authorization gaps. This isn't termination – your position is held, your seniority is preserved, and you return to work when your new EAD arrives. This requires employer cooperation, but its worth asking.
If your employer agrees to a leave of absence, get the terms in writing. Specifically request that your reinstatement will be at the same position (or comparable) with seniority corresponding to your original hire date. Make sure the leave is classified in a way that doesn't affect your benefits eligibility or tenure status.
Your employer is not obligated to offer this. They can legally terminate you when your work authorization expires. But many employers value there employees and would rather hold a position open for a few weeks or months then lose someone and start the hiring process over. It doesn't hurt to ask, especially if you have a good relationship with your employer.
Many employers-including universities, municipalities, and private companies-routinely place employees on unpaid leave during EAD gaps rather than terminating. Vanderbilt University, for example, has a formal policy placing employees on leave without pay when a new EAD is not in hand at expiration, with termination occurring only if the gap extends beyond six weeks. This demonstrates that the unpaid leave approach is a well-established and accepted practice. https://hr.vanderbilt.edu/employee-immigration-services/ee_with_ead_rules_regs/
Good luck and if I can help let me know.
George Achola
Attorney at Law | Communitas – Law & Economic Development Group
Fortitudine Vincimus -Through endurance, we conquer.
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