Since 09/27/2023, USCIS has increased the maximum validity period of certain Employment Authorization Documents (EADs) from two years to five years. The change will apply to EAD applications filed by applicants for adjustment of status based on family and employment categories, applicants filing as refugees and asylees, and also recipients of withholding of removal. The increase applies to both initial applications and renewal applications.
The initial reaction to this sudden change in USCIS policy has been mostly positive. Increasing the validity period of EADs has some obvious advantages. For one thing, it provides more stability for applicants who need to apply for employment, sign a lease or secure a mortgage for a new home. Further, it saves time and resources by reducing the number of I-765 applications for EADs. In fact, this is the main reason behind the sudden policy change.
AC-21 Extensions vs. EAD
Another side effect of 5-year EADs is that H-1B workers may no longer have to file multiple H-1B extensions to obtain employment authorization. Under the current policy, a foreign worker is only entitled to a maximum of six years of H-1B status. At the end of the six years, they will lose their H-1B status unless they are able to file for further extensions based on the provisions of the AC-21. AC-21 §106(a) allows one-year extensions of H-1B status if the applicant has a pending green card application for 365 days or longer. Under AC-21 § 104(c), an H-1B worker may request for three-year extensions of their status if they have an approved I-140 petition but visa numbers are unavailable.
With a five-year EAD, H-1B workers may decide not to apply for AC-21 extensions. In fact, such decisions are often based on economic reasons. An H-1B employer may be less inclined to agree to pay for the fees for extension of status, if they know that an employee has secured a five-year EAD. Under the current immigration policy, fees associated with H-1B filings are the employer's responsibility.
Pitfalls of 5-year EADs
But, is it really a good idea to just rely on one's EAD? USCIS reminds applicants that an EAD is an ancillary application. It means that the validity of an EAD is tied to the applicant's adjustment of status application. If the underlying I-485 application is denied or terminated for whatever reason, the accompanying EAD may also be terminated before its expiration date. If that happens, one would lose their employment authorization.
Further, adjustment applicants are not in any immigration status under the current policy; rather, they are only authorized to stay in the United States pending adjudication of their I-485 applications. Denial of the I-485 means that they are no longer in any valid immigration status. As a result, they would not be able to change or adjust their status in the United States, unless they fall under one of the limited legal exceptions. If so, they would be forced to depart the United States to avoid unlawful presence.
What about Advance Parole?
For applicants for adjustment of status, they almost always apply for both EADs and advance parole travel documents simultaneously. Advance parole allows them to return to the United States after foreign travel without abandoning their adjustment applications. USCIS has issued "combo cards" for both EAD and advance parole in the past. Thus far, USCIS has not announced an increase in advance parole duration. If so, one would expect that five-year combo cards would not be available. It means that applicants must continue to renew their advance parole every year.
Conclusion
Five-year EADs certainly save resources and administrative processing time. It also brings some conveniences to many applicants. However, one should note that not application categories are eligible for five-year EADs. For example, the announcement does not cover H-4 EADs unless these applicants have also filed for adjustment of status. Further, H-1B workers should understand that relying solely on long-term EADs without maintaining H-1B status is risky. It is strongly recommended that one should maintain a valid immigration status at all times, if it is at all possible.
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