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July 19, 2018

Expect Delays in Issuance of Employment Authorization Documents

Foreign workers must present documents indicating proper work authorization to their US employers. Acceptable documents include the Employment Authorization Document (EAD), which is issued by US Citizenship and Immigration Services (USCIS) to qualifying non-immigrants.

Traditionally, USCIS is required to issue EADs within 90 days of filing an I-765 application. However, that is no longer the case. According to the USCIS Vermont and Texas Service Centers, the average timeframe to issue an EAD on a pending employment-based adjustment of status application (category (c)(9)) is between three and a half to five and a half months, with the California Service Center having the quickest turnaround processing time of one and a half to five months. However, there have been multiple recent reports noting that it has been taking over eight months for USCIS to issue these EADs.

This becomes especially problematic when an EAD is expiring and must be renewed, presenting many issues for the applicants, their employers, and dependent spouses because they may be experiencing a gap in employment authorization. Without a valid EAD, the individuals and their spouses cannot legally continue to work. Employers and employees should be aware of these delays and prepare well ahead of the EAD expiration date.

In certain limited circumstances, foreign workers may receive an automatic extension of their expiring EAD for up to 180 days, provided that a renewal application is:

  1. Filed with USCIS prior to the expiration date of the EAD.
  2. Based on the same employment category.
  3. Based on a certain class of workers who maintain employment eligibility and that the employment authorization category does not require adjudication of an underlying petition.

In all circumstances, we recommend that EAD renewal applications be filed 120 days prior to the expiration, which is the earliest that they may be filed with USCIS. During the entire pendency of the adjustment of status application, the foreign worker should maintain the underlying non-immigrant status such as H-1B and L-1. All extension applications should also be filed at least six months prior to the EAD's expiration to ensure a minimal or nonexistent gap in work authorization.


If you have questions regarding the information presented in this alert, please contact Melle Fabian, associate, at mfabian@barclaydamon.com.

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