Avoid Unauthorized Employment by Renewing EAD Early

Recent case processing time tables of the U.S. Citizenship and Immigration Services indicate that it is taking three months for the agency to process the I-765 Application for Employment Authorization (EAD) This is true with all four USCIS service centers and the National Benefits Center (NBC).  The 90-day schedule applies to all categories of applications including employment-based applicants, family-based applicants, refugees, and other categories. Hence, applicants should file their I-765 applications as early as possible to make sure that they have a new EAD in hand before their current EAD expires.

Importance of an EAD

When a person is applying for Lawful Permanent Residence status, the EAD is an important document for the applicant.  Not only does it allow the person to work legally in the United States, it also serves as a photo identification document.  With a EAD, the applicant may apply for a driver’s license and a social security card.  The EAD is most commonly used by green card applicants in family petitions and employment petitions. Based on the current immigration policy, a person with a pending I-485 Adjustment of Status application is eligible to apply for an EAD.

Delay in Processing

Although the USCIS has always indicated that it would take up to 90 days to process an EAD application.  In the past, if there was nothing unusual about the application, it was usually approved well under 90 days.  However, in an attempt to centralize filing of applications within the USCIS Lockboxes, the agency has changed the filing locations of the I-765 applications.  One side effect of this change was delay in processing as a result of the extra time needed to re-route these applications.  As a result of this delay many applicants are facing the possibility of working without authorization.  Under the law, a foreigner in the U.S. is not allowed to work without explicit authorization by the government.  An expired EAD does not give such authorization. 

How to handle delay in processing

If a person’s EAD is expiring and the new EAD has not been approved yet, there are several ways to handle this situation.  First of all, the USCIS is making accommodations to allow applicants to make service requests once an EAD application has been pending for more than 75 days.  It means that an applicant or his lawyer may contact the National Customer Service Center (NCSC) to make a status inquiry about the status of the I-765 application before 90 days have passed.   Secondly, if an applicant is going to lose his job because of failure to obtain a new EAD, he or she may contact the USCIS to request expedited processing of the pending I-765 application.  Documentary proof of imminent termination of employment is required to support such a request.  

An applicant may also make an INFOPASS appointment to visit the local USCIS office to request assistance.  The local offices may no longer issue interim or temporary EADs to applicants.  The local office, however, may contact the USCIS service center involved to request for an update of the status of the pending I-765 application.  If there is no outstanding issue, the local office should request that the I-765 be approved in a timely manner.

Conclusion

An EAD is required for a foreign to work legally in the U.S.  Unauthorized employment is an immigration violation which may result in negative consequences.  Some applicants would like to wait until the last minute to file for EAD renewal so as to maximize the period of approval.  This is not a wise move considering the risks involved.  For example, if a Request for Evidence is issued, the processing time could be a lot longer than 90 days.  Therefore, one should file for renewal 120 days before expiration of the current EAD as permitted by the USCIS.