Paycheck reversed due to EAD mis-dated

[liandannie 0]

As our first EAD expired in 3/2/2007, and still no update on our AOS for over a year, we had to renew the EAD in January 2007. When we received the EAD, it is dated 3/22/2007 as effective date. Today, my HR contacted me for EAD renewal card for archiving purpose, and found there is 20 days between first EAD expiration and second EAD effective, therefore, my paychrck will be reversed for the "20-day-illegality of working status".

This is rediculous and annoying. Is there any way we can try to claim the paycheck back? HR wouldn't care how slowly FBI name check has become and impact the working satus, and they insisted it's our fault not submitting renewal earlier.

Please share your opinion and advice. Thanks.

[LaL 418]

fbi namecheck is nothing to do with the processing of EADs. i dont know any proof you could submit to correct this situation especially since the website states file 6 months in advance.

what do they now state you were doing for 20 days? volunteering?

[Otto 83]

It is ridiculous - you worked, the got the benefit of that work, you have to be paid.

Have you spoken with your supervisor? and (if needed) his/her supervisor? What is their position? Forget HR - contrary to what they usually believe - they don't run the company.

As our first EAD expired in 3/2/2007, and still no update on our AOS for over a year, we had to renew the EAD in January 2007. When we received the EAD, it is dated 3/22/2007 as effective date. Today, my HR contacted me for EAD renewal card for archiving purpose, and found there is 20 days between first EAD expiration and second EAD effective, therefore, my paychrck will be reversed for the "20-day-illegality of working status".

This is rediculous and annoying. Is there any way we can try to claim the paycheck back? HR wouldn't care how slowly FBI name check has become and impact the working satus, and they insisted it's our fault not submitting renewal earlier.

Please share your opinion and advice. Thanks.

Edited May 1, 2007 by Karin und Otto

[Kez/JWolf 6]

I have to agree with your HR..... you should have filed for the EAD renewal way before you did.... why did you wait until it was expiring....

Kez

[Otto 83]

I have to agree with your HR..... you should have filed for the EAD renewal way before you did.... why did you wait until it was expiring....

Kez

The OP didn't wait until it expired - filed about 90 days before it did.

It's an EEOC claim waiting to happen - HR is thinking they're covering their rear with the government - but they can't give back the OPs time now can they?

[LaL 418]

I have to agree with your HR..... you should have filed for the EAD renewal way before you did.... why did you wait until it was expiring....

Kez

The OP didn't wait until it expired - filed about 90 days before it did.

It's an EEOC claim waiting to happen - HR is thinking they're covering their rear with the government - but they can't give back the OPs time now can they?

they filed it 69 days prior to it expiring, so yes, less than what is generally recommended here (and they also got it early!) just a point of clarification.

[raymaga 25]

I have to agree with your HR..... you should have filed for the EAD renewal way before you did.... why did you wait until it was expiring....

Kez

The OP didn't wait until it expired - filed about 90 days before it did.

It's an EEOC claim waiting to happen - HR is thinking they're covering their rear with the government - but they can't give back the OPs time now can they?

they filed it 69 days prior to it expiring, so yes, less than what is generally recommended here (and they also got it early!) just a point of clarification.

No, that's not correct.... they applied for the EAD renewal Jan. 12th, and the old one expired on Mar. 2nd..... that's not even 2 months. That was the OP's mistake. They should have applied back in December, 2006 to make sure they had the renewal in time.

I would be very surprised if you will be able to get your money from your employer.... you were, in fact, not legally able to work for those 20 days in between your EAD's.

Hopefully, others will see this post and get their EAD renewals in early.

[LaL 418]

I have to agree with your HR..... you should have filed for the EAD renewal way before you did.... why did you wait until it was expiring....

Kez

The OP didn't wait until it expired - filed about 90 days before it did.

It's an EEOC claim waiting to happen - HR is thinking they're covering their rear with the government - but they can't give back the OPs time now can they?

they filed it 69 days prior to it expiring, so yes, less than what is generally recommended here (and they also got it early!) just a point of clarification.

No, that's not correct.... they applied for the EAD renewal Jan. 12th, and the old one expired on Mar. 2nd..... that's not even 2 months. That was the OP's mistake. They should have applied back in December, 2006 to make sure they had the renewal in time.

I would be very surprised if you will be able to get your money from your employer.... you were, in fact, not legally able to work for those 20 days in between your EAD's.

Hopefully, others will see this post and get their EAD renewals in early.

ooops! your right. 49 days prior to expiring. but they did process the renewed ead early.

[Kez/JWolf 6]

The OP is very lucky that it was processed as fast as it was.... or they could still be waiting for it now....

Kez

[Mononoke28 135]

You will not receive your check unfortunately. My mom had a co-worker from El Salvador who received TPS benefits, and she had to renew it every so often. There were times when she forgot to renew it and never got paid for the days she was not legally able to work. They later changed the system at their work place and her badge would automatically go inactive every time her TPS expired and she wouldn't even be able to go inside the building.

It's very important to be on top of these things because the only person who ends up losing is you, not your employer.

[Girona40 0]

You will not receive your check unfortunately. My mom had a co-worker from El Salvador who received TPS benefits, and she had to renew it every so often. There were times when she forgot to renew it and never got paid for the days she was not legally able to work. They later changed the system at their work place and her badge would automatically go inactive every time her TPS expired and she wouldn't even be able to go inside the building.

It's very important to be on top of these things because the only person who ends up losing is you, not your employer.

I feel that this thread is missing the point somewhat. The time it took for the EAD application to be filed it irrelevent now. Surely, it isn't right to "employ" someone, whether they have an EAD or not, and then refuse to pay them for services rendered! If that were the case then loads of illegals in this country would be taken advantage of by employers who would simply not pay them, after the work was completed.

Contact your local Department of Labour and Industry. They have people who look into this kind of thing and ensure that employment laws are enforced. They cannot deduct ANY monies from your pay, apart from taxes, SS and any other deductions YOU authorize!

If all else fails, have you considered mentioning to your employer that THEY are the ones breaking the law in that they "employed" someone who didn't have a valid EAD and could be subject to a fine themselves! Non payment of earned-wages is also an offence, to which they can be fined, in some states $1000.

I would be soooooo p*ssed if this happened to me. 20 days salary is a lot of money to just walk away from. I would argue that they are totally in the wrong.

You have a work permit now - what's the big deal to them? The offense has already been committed by THEM, employing someone that was not authorised to work - that breach in the regulations cannot be changed now, but they still have to pay you.

Get hold of DOLI and file a "Claim for Unpaid Wages".

[Girona40 0]

NY Labor Law Link

Here are some numbers you may like to call.

[eau_xplain 2]

Girona,

You are right in that I would be pissed if my wages were withheld from me because of lack of work authorization.

However, you also have to understand the side of the employer. In the event of an audit, the employer could be fined anywhere from $5,000 to $10,000 for every employer they hire who is not legally authorized to work. In the case of the OP's employer, they are being strict as they do not want to expose themselves to such a possible audit (no matter how remote the possibility could be).

Unauthorized work might be overlooked by USCIS when they process an applicant's AOS but ICE will not be so lenient on employers who employ people without work authorization.

[Girona40 0]

Girona,

You are right in that I would be pissed if my wages were withheld from me because of lack of work authorization.

However, you also have to understand the side of the employer. In the event of an audit, the employer could be fined anywhere from $5,000 to $10,000 for every employer they hire who is not legally authorized to work. In the case of the OP's employer, they are being strict as they do not want to expose themselves to such a possible audit (no matter how remote the possibility could be).

Unauthorized work might be overlooked by USCIS when they process an applicant's AOS but ICE will not be so lenient on employers who employ people without work authorization.

I totally understand what you are saying, BUT.............................

The employer had ALREADY broken the employment law, by employing someone without reverification of their authorization after it expired. They can still be fined, even now, for that.

Withholding earnings is against NY (and many other states) labor laws. They are not entitled to stop payment, simply because (after the event) they realise THEY were in the wrong by continuing to employ this person.

Even the USCIS state on their website that "most employers find it useful to institute a system that reminds them automatically, in advance, that an employee's Authorization Document will expire. Advanced warning assists both employees and employers since early notice will usually allow employees time to renew the Authorization prior to the expiration date and avoid penalties for employers. Enough advance warning is important so that the employee can apply for and receive replacement documents in time to maintain uninterrupted employment. Note: USCIS processing of applications for Work Authorization or Evidence of Work Evidence can take up to 90 days."

USCIS Webpage extract

The question was what could be done to get the employer to pay the money owed for services rendered. The legalities of whether they should have worked or not, is not what they are asking. As far as I can tell, it is illegal for the employer to deduct monies from the paycheck of someone who has worked for that money and hasn't given permission for the employer to do so.

[kari lina 0]

I totally understand what you are saying, BUT.............................

The employer had ALREADY broken the employment law, by employing someone without reverification of their authorization after it expired. They can still be fined, even now, for that.

Withholding earnings is against NY (and many other states) labor laws. They are not entitled to stop payment, simply because (after the event) they realise THEY were in the wrong by continuing to employ this person.

Even the USCIS state on their website that "most employers find it useful to institute a system that reminds them automatically, in advance, that an employee's Authorization Document will expire. Advanced warning assists both employees and employers since early notice will usually allow employees time to renew the Authorization prior to the expiration date and avoid penalties for employers. Enough advance warning is important so that the employee can apply for and receive replacement documents in time to maintain uninterrupted employment. Note: USCIS processing of applications for Work Authorization or Evidence of Work Evidence can take up to 90 days."

USCIS Webpage extract

The question was what could be done to get the employer to pay the money owed for services rendered. The legalities of whether they should have worked or not, is not what they are asking. As far as I can tell, it is illegal for the employer to deduct monies from the paycheck of someone who has worked for that money and hasn't given permission for the employer to do so.

Agreed, the employer risks penalties for employing a person who does not have legal authorization to work. Reversing the paycheck does not magically mean that the person wasn't employed for that time. The offense has already taken place, and the OP should contact the numbers provided in previous posts to see what rights they have to keep the pay for which they've already worked.