EAD Extension Delays: FAQs, Answers and Suggestions
Posted 13.Aug.2010
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The lockbox filing system, as related to renewals of employment authorization documents (EADs) has been reported previously to MurthyDotCom and MurthyBulletin readers. [See EAD Filings Now Must Be Filed at Designated Lockbox or at VSC (05.Mar.2010).] EADs are taking longer to process currently, when compared with the recent past. As a result, our firm is receiving many inquires from individuals facing expiration of their EADs, while still waiting for EAD extension approval. Therefore, readers should be aware of filing timelines and procedures in light of these EAD delays.

File EAD Renewal 120 Days in Advance

One is permitted to request the renewal of an expiring EAD up to 120 days in advance of the expiration. It is advisable to take advantage of the full filing window, if the ability to work legally in the United States is based solely on the EAD. The U.S. Citizenship and Immigration Services (USCIS) is permitted to take up to 90 days to process EAD applications. Filing 120 days in advance allows enough time to accommodate additional minor delays or problems with the EAD request.

At the time of this writing, the USCIS is taking the full 90 days, or close to 90 days, to adjudicate EADs. There have been times in the past when the USCIS processed EADs more quickly. As a result, some EAD holders file their extension requests expecting processing times in keeping with those they may have previously experienced. Around 60 days, and sometimes less, was typical. Our current experiences, however, are echoed by our colleagues, as the American Immigration Lawyers Association (AILA) has posted similar reports.

EAD Must be Approved and Issued to Work

The urgent problem faced by many who have delayed their EAD extension filings is the prospect of not being permitted to work between the expiration of the current EAD and the approval and issuance of the new EAD extension. Unlike an H1B-type of petition, there is no employment authorization granted based upon a "pending" EAD, even if it is an extension request.

USCIS No Longer Issues Interim EADs

Those waiting for EAD renewals often ask about interim EADs. The USCIS local offices, unfortunately, no longer issue interim EADs, as they did before. Even when interim EADs were issued, it was required by the USCIS that the EAD filing had been pending for at least 90 days.

Options: 75-Day Follow Up

In light of the change in the interim EAD option, the USCIS now permits service requests to be initiated at the 75-day point. As explained in our article, USCIS Responds to CIS Ombudsman on EAD Delays (13.Feb.2009), customer service requests on EADs can be initiated from the 75th day. This is an effort to assure that the EAD will be processed in 90 days.

These requests will be forwarded to the location of the EAD processing, so that the case can receive priority treatment and, hopefully, approval within the 90 day timeframe. If the EAD still has not been approved by the 90-day point, further follow up with the National Customer Service Center (NCSC) or the local office, via an InfoPass appointment, may be appropriate.

Expedite: Not Usually Granted Unless Specific Criteria Satisfied

In many cases, an individual who has filed the EAD extension fewer than 90 days prior to the expiration date of the current EAD will ask about expedited processing. There is no "premium" processing option for EADs. Any such expedite request must fit within the USCIS expedite criteria.

There are very limited situations in which the USCIS may deem it appropriate to expedite an EAD. Any such request must fit within the criteria, and needs to be supported by appropriate documentation. Approval of an EAD expedite request is not common, particularly if there is a self-created emergency due to delay in filing the EAD extension.

Nebraska Service Center: Temporary Accommodations

In light of the expanding numbers of individuals facing the likelihood of EAD expiration before their extensions reach them, the Nebraska Service Center (NSC) is making some accommodations. In addition to making efforts to reduce the EAD processing times, the NSC will consider expedite requests in certain situations when an individual can establish that s/he will lose his/her job if the EAD is not renewed promptly. Eligibility for this special consideration requires that the EAD application has been pending for more than 60 days, and the current EAD will expire within the ensuing two weeks. This must be supported by evidence of imminent employment termination.

NO Work Allowed After EAD Expiration

As explained above, for those who rely on the EAD for their permission to work, authorization to work ends with the EAD expiration. One must cease all work functions until the new EAD is approved and issued to the individual. We at the Murthy Law Firm are often asked by individuals if they can "volunteer" (do the same job and not get paid) or work from home. If one is not authorized to work, s/he is not permitted to engage in the same activities without pay or from home.

Conclusion

It is very important to request EAD extensions in a timely fashion. A gap in employment authorization generates a number of practical and legal complications. The USCIS is working to improve the processing times for EADs. Hopefully, many who are waiting anxiously for their EAD renewals will have the approvals in time or without much of a gap in authorization. However, there is rarely a valid reason for not filing as early as possible. This should serve as a warning to individuals whose EADs will need to be renewed in the future. At the Murthy Law Firm, clients for whom we have obtained EADs receive courtesy reminders to renew their expiring EADs and file most cases around 120 days prior to the expiration. Following this practice avoids gaps in employment authorization.