EAD Filing or Renewal Helpful during Recession
Posted Jan 16, 2009
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Many MurthyDotCom and MurthyBulletin readers have pending I-485 (Application for Adjustment of Status) cases. These same individuals may also hold various work-authorized nonimmigrant statuses, usually H1B or L-1. This creates a situation in which the Employment Authorization Document (EAD) may be requested, but it is not required. Obtaining or renewing the EAD can be beneficial during these turbulent economic times. The matter is actually quite simple. Having a valid EAD allows a foreign national to continue to work, without interruption, if s/he is laid-off by the employer or sponsor of the H1B or L-1 petition. The EAD not only translates to economic survival, but, in employment-based, permanent residence (green card) cases, may also result in the very survival of the immigration case.
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EAD Background and Basics
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As it is named, the Employment Authorization Document is a document that authorizes employment. It does not provide an individual with any valid legal status in the United States, as the EAD does not change one's status or provide a legal basis to live in the U.S. It is possible to have the EAD as a backup, without using it. Many people hold H1B status, but also have EADs based upon their I-485 filings. Such individuals are considered to be in H1B status, as long as they work for their respective H1B sponsors, and have complied with the terms of their H1B petitions. In order to request the EAD, there must be proper bases and eligibility. These are all set out in the EAD application, Form I-765. For purposes of this article, we are discussing EADs based upon the filing of the Adjustment of Status application (I-485). The EAD is an ancillary benefit that may be requested when filing an I-485, or at any time, as long as the I-485 is pending.
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EADs are Important in a Recession
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Many of our readers obtained their first EADs as a result of the I-485 filings permitted in the summer of 2007, when the priority dates became current in all of the employment-based categories for a brief period. There are individuals who filed I-485s at other times, who also are eligible for EADs. Many of these applicants are working in nonimmigrant statuses, as it is permissible under the dual intent doctrine for persons in H or L status to maintain their respective statuses while having pending I-485s at the same time. Thus, they do not need the EAD in order to work in their current H1B or L-1 jobs.
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These individuals are faced with the decision of whether to obtain the EAD or to renew an expiring EAD. They may be reluctant to spend the $340 filing fee for something that is optional and may never be used. Now that the U.S. is in a potentially long period of economic uncertainty, however, the cost of an EAD may be money well spent. Given that many EADs are issued with two-year validity periods, the likelihood that this is a wise decision is greater. See our June 20, 2008 MurthyBulletin article, Two-Year EADs for Certain I-485 Applicants Effective June 30, 2008.
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EADs Give Flexibility
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If an H1B worker, with an I-485 pending, is laid off, s/he will not be able to maintain H1B status without a new H1B job. In order to maintain, without interruption, H1B status within the U.S., it is necessary to find a new H1B sponsor quickly. When there is advance notice of the layoff, this may be entirely possible. When there is little notice, however, combined with job shortages in a recession, it may be much more difficult to find an H1B-sponsoring employer.
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If the H1B worker also has a valid EAD, this provides flexibility for locating and accepting new employment. There would be no need for the new employer to file an H1B petition, or to worry about gaps between the last paycheck and the H1B filing. While our general advice to clients of the Murthy Law Firm, as well as to our readers, is to maintain a nonimmigrant status in addition to having the I-485 pending, this is not always possible. The nonimmigrant status can be a safety net, should problems arise with the I-485. When the job market is in flux, this type of precaution ceases to be an option for some.
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For primary beneficiaries, with employment-based I-485s pending, the job is key to having a chance for approval. The case may be eligible for approval even after a layoff, but not without a new job that meets the requirements of the AC21 I-485 portability provisions. Thus, finding a new job becomes a vital matter. It can be much easier to find a new job with an EAD, as it requires less effort and expense from the employer. It also allows employment to start on a same-day basis. For more information on AC21, see our  AC21 Frequently Asked Questions, updated January 25, 2008 and available on MurthyDotCom.
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Do Not Wait : 90-Day Processing
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When deciding whether to request or extend an EAD, do not delay the filing until the EAD is needed. EAD filings may be made 120-days in advance of the expiration of a current EAD. As explained in prior earlier articles to be found on MurthyDotCom, EAD processing is supposed to take 90 days, but this does not always occur. That is why the decision to obtain or renew cannot wait until the EAD is required. When comparing the $340 filing fee to the lost wages and lost opportunities during several months of waiting for an EAD approval and issuance, the choice is obvious. And, of course, the entire I-485 "green card" case rests on having a proper job offer that may be lost if the employer is not willing or able to wait three months for the EAD issuance.
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Conclusion
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We at Murthy Law Firm understand the stresses that many foreign workers are suffering during the current economic recession. Obtaining and renewing the EAD is one effective way of improving one's options and minimizing the stress experienced during a layoff. We will continue to take proactive steps to help both individuals and employers during this difficult time. We will provide continuing updates to MurthyDotCom and MurthyBulletin readers.