Certain EAD Holders with Pending Extension Requests Can Continue to Work
Published July 9, 2017
Foreign nationals in the U.S. can qualify to obtain an Employment Authorization Document (EAD) under a variety of circumstances. There are more than a couple dozen categories of eligibility, although the vast majority of our nation’s undocumented population do not qualify under any of them. The most common bases of eligibility for an EAD include foreign nationals with pending applications to adjust their status to permanent residence (pending “I-485” green card application), pending asylum applications, and pending applications for cancellation of removal (for certain undocumented foreign nationals fighting removal proceedings). Most of the time the Employment Authorization Document (EAD) is valid for one year, and it gives the holder the opportunity to seek lawful employment in the U.S. The EAD is also renewable as long as the applicant continues to be covered under the specified category of eligibility.
Under a rule announced earlier this year, certain categories of EAD holders are eligible to demonstrate their continued authorization to work simply by presenting the receipt issued by Department of Homeland Security/Citizenship and Immigration Services (DHS/CIS). For the receipt to be valid, the EAD holder must document that their extension application had a valid basis and was received by DHS/CIS prior to the expiration of their current EAD. By presenting their extension receipt along with their expired EAD, the EAD holder is eligible for continued employment authorization for an additional 180 days beyond their current EAD expiration date. The 180 day rule was arrived at presumably because DHS/CIS believed that it would take no longer than that to process an EAD holder’s pending renewal application.
According to instructions attached to the EAD application form (Form I-765), EAD holders are advised to initiate the extension process at least 90-120 days prior to expiration. The new rule appears to have been implemented due to DHS//CIS slowdown in the adjudication of EAD extension applications and so as to not penalize current EAD holders and their employers due to processing delays. The new rule also allows an EAD holder to avoid having gaps in their authorization to be employed, since their current EAD – as stated – is considered automatically extended for 180 days with the submission of a timely extension application.
Below is a list of EAD categories, with regulatory section reference, that are covered by the above automatic extension rule (notably, EAD eligibility arising out of the Deferred Action for Childhood Arrivals (DACA) program is excluded from the list):
· (a)(3) Refugee
· (a)(5) Asylee
· (a)(7) N-8 or N-9
· (a)(8) Citizen of Micronesia, Marshall Islands, or Palau
· (a)(10) Withholding of deportation or removal granted
· (c)(8) Asylum application pending
· (c)(9) Pending adjustment of status under section 245 of the Immigration and Nationality Act
· (c)(10) Suspension of deportation applicants (filed before April 1, 1997), cancellation of removal applicants, and special rule cancellation of removal applicants under NACARA
· (c)(16) Creation of record (Adjustment based on continuous residence since January 1, 1972)
· (c)(20) Section 210 Legalization (pending Form I-700)
· (c)(22) Section 245A Legalization (pending Form I-687)
· (c)(24) LIFE Legalization
· (c)(31) VAWA self-petitioners
PUBLISHED July 9, 2017– “IMMIGRATION LAW FORUM” Copyright © 2017, By Law Offices of Richard Hanus, Chicago, Illinois