Many Ukrainians who entered on Uniting for Ukraine (U4U) are soon coming up on the expiration of their humanitarian parole period. Yet, many of those who applied for a new period of parole are still waiting for USCIS to process their Form I-131 for re-parole and their Form I-765 for a new Employment Authorization Document (EAD). This includes applicants who requested an EAD renewal directly on their I-131 concurrently with their re-parole request.
Despite filing 6 months prior to the expiration of their current parole period, a number of applicants continue to wait for re-parole and new EADs for a year or more. In some cases, their parole period has already expired, along with their employment authorization. Some of them have filed expedite requests and/or requested assistance through their U.S. Senator or Representative, but their applications remain pending.
This leaves many Ukrainians, their families, and their employers in limbo as they try to understand the risks and navigate the uncertainty that comes with not knowing when their new work permits will arrive. Understandably, this is causing confusion and anxiety for those who risk losing their jobs.
So, what are the options for parolees with pending re-parole, and are they allowed to work without a valid unexpired EAD?
Under INA ยง 274A(a)(2), it is unlawful for an employer to knowingly continue to employ an individual who is not employment authorized. Employers face mandatory civil fines for violations and even potential criminal liability if the government can prove a pattern or practice of violations.
Meanwhile, a humanitarian parolee who engages in unauthorized employment could be considered to have failed to maintain their lawful parole status. This not only endangers their present ability to remain in the United States by exposing them to the risk of immigration enforcement, it poses a threat to their eligibility to extend or pursue new immigration statuses in the future. It could even prevent them from being allowed to return to the U.S. after they leave.
But, that doesn’t mean an employer must immediately terminate an employee who fails to provide a valid unexpired EAD. In fact, employers are not legally mandated to terminate the individual’s employment permanently. Instead, they can place the employee on an unpaid leave of absence until the employee can submit required documentation showing employment eligibility.
Unfortunately, employment authorization based on humanitarian parole is tied to a period of valid parole. Put simply, U4U parolees who are not in a period of valid parole are not authorized to work.
However, there are a few exceptions. These include:
- Ukrainians who entered on U4U who also have Temporary Protected Status (TPS) and a valid TPS-based EAD may continue working for as long as their TPS remains effective. They must have been granted TPS through the end of the current term or have a pending TPS re-registration with USCIS. Additionally, they must hold a valid TPS-based EAD or have a pending I-765 to renew their TPS-based EAD filed during the re-registration window.
- Ukrainians who have filed for asylum may file Form I-765 after their asylum application has been pending for 150 days, and they become eligible to receive the actual EAD once their asylum clock hits 180 days. Note that the Department of Homeland Security (DHS) has officially published a proposed rule seeking to increase the mandatory waiting period from 180 days to 365 days before an asylum seeker can apply for an initial EAD. The outcome of this proposed rule may affect an asylum seeker’s eligibility for employment authorization.
- Ukrainians who seek permanent residence based on a family or employment visa may file Form I-765 to request an EAD at the same time they file their Form I-485 for Adjustment of Status. However, unless they are pursuing adjustment based on “Immediate Relative” visas, they cannot file Form I-485 or the concurrent Form I-765 unless their visa’s Priority Date is current.
- Finally, USCIS provides an exception to Ukrainians with pending EADs based on re-parole. If they filed their Form I-765 with their Form I-131 (or requested a new EAD directly on their Form I-131 re-parole application) AND their re-parole is ultimately approved, they may be able to start working for up to 90 days before their new EAD card arrives.
How does this last exception work? USCIS allows U4U parolees with approved re-parole to use their updated I-94 alongside their pending EAD renewal receipt to verify their employment authorization for a temporary period. Once USCIS approves their re-parole, they can download their electronic Form I-94 from the CBP website that shows their new parole term with a “UHP” class of admission. USCIS permits employers to accept this unexpired I-94 as a valid List A receipt to re-verify their employment authorization for I-9 purposes.
Thus, U4U parolees whose EAD renewal remains pending after their new period of parole is granted do not necessarily need to wait until their new EAD is issued. Employees may work for up to 90 days from the date their previous employment authorization expires. But in order to continue working after the 90-day temporary window, they will need to present to their employer either a new valid EAD card or an unrestricted Social Security card (List C) paired with an acceptable identity document, such as a driver’s license (List B), to satisfy I-9 employment re-verification.
**It is important to note that parolees cannot work with an expired EAD until after their re-parole is formally approved AND a new electronic Form I-94 with the “UHP” class of admission is generated. Moreover, there is no retroactive employment authorization based on re-parole for the period between the expiration of their current parole or EAD and the formal grant of their re-parole. Any work performed during this gap would constitute unauthorized employment.**
Ukrainians with pending re-parole who wish to return to their current place of employment should inform their employer in advance of a pending EAD renewal and ask them to be placed on an official, documented unpaid leave of absence as of the date after their current EAD expires. This will help prevent the accrual of unauthorized employment for the employee while maintaining the employer’s compliance with the law.
What about U4U parolees who are changing employers or have been offered a new job?
They cannot legally start their new employment until their re-parole is approved, unless they meet an exception for employment eligibility through another lawful status. Once they do receive a final grant of re-parole and are issued a new I-94 with a “UHP” class of admission, they can begin working immediately for the first 90 days of hire.
Under the USCIS Uniting for Ukraine I-9 special provisions, a newly hired employee whose re-parole has been approved does not need a physical EAD card to clear the onboarding process. Instead, the employee can present their electronic Form I-94 displaying the “UHP” class of admission code when completing Section 2 of Form I-9. This document is treated as an acceptable List A receipt that establishes both identity and employment authorization. The employer must fill out Section 2 by writing “Receipt” and listing the title of the document, i.e. Form I-94, in the List A column, along with the employee’s I-94 expiration date. If the employer utilizes E-Verify, they must enter the case into the system as a “Receipt” selection using the UHP Form I-94 data. Before the 90th day of employment concludes, the employee must present standard unexpired documentation of their employment authorization.
More information about Form I-9 Employment Eligibility Verification under U4U re-parole can be found here:
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This information is intended for educational purposes only and should not be taken as legal advice. By reading this, you agree that this information is not a substitute for legal counsel and does not establish an attorney-client relationship. Please note that we are not able to offer direct filing assistance or personalized legal advice through this forum. Please consult a qualified attorney to discuss your own situation and to obtain assistance with specific matters. If you do not have an immigration attorney, you may try contacting an attorney listed on this page: