USCIS Responds to CIS Ombudsman on EAD Delays
Posted Feb 13, 2009
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The USCIS recently released Response to Recommendation 35, Recommendations on USCIS Processing Delays for Employment Authorization Documents (PDF 53KB). This response addresses the CIS Ombudsman's recommendations related to delays in Employment Authorization Document (EAD) processing. These recommendations include adhering to regulations requiring that USCIS issue EADs within 90 days of filing, to prevent unnecessary loss of employment.
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History of the CIS Ombudsman's Office
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As regular MurthyDotCom and MurthyBulletin readers may recall from our October 3, 2008 article, Delayed EADs - Ombudsman's Suggestions to Expedite, Mr. Michael T. Dougherty replaced Mr. Prakash Khatri as CIS Ombudsman at the U.S. Department of Homeland Security (DHS). As that article indicates, Mr. Dougherty released updated suggestions on September 19, 2008 to EAD applicants for speeding their delayed EADs.
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Ombudsman's Recommendations to USCIS
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Ombudsman Dougherty had recommended that USCIS adhere to regulations requiring that EADs be issued within 90 days of filing. Alternatively, he recommended that USCIS should issue interim EADs to prevent unnecessary loss of employment. He also suggested that the USCIS provide information regarding causes of and solutions to EAD delays. Mr. Dougherty also requested reconsideration of a multi-year EAD and recommended appropriate steps be taken to ensure consistent USCIS guidance to the public regarding delayed EADs.
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USCIS Response
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The USCIS acknowledged that a small percentage of EAD applications are not adjudicated in a timely fashion. While noting that this delay is a burden on the particular EAD applicants involved, however, the USCIS disagreed that EAD delays as a whole were a significant issue. The USCIS stated that 98.7 percent of EAD applications were timely adjudicated in Fiscal Year (FY) 2008.
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In order to address any issues that may exist, and to comply with the 90-day requirement, the USCIS will review pending EAD applications for cases that have remained pending for 60 days or more without being assigned to an immigration officer (IO.) These cases will be forwarded to an IO for adjudication. The reviews of pending cases to locate instances of delay will occur at least weekly.
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Service Requests after 75 Days
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The USCIS will also change National Customer Service Center (NCSC) information to permit service requests once an EAD application has been pending for at least 75 days. The NCSC is supposed to accept these requests and forward them to the appropriate service center or the National Benefits Center (NBC) for adjudication. These cases are to be adjudicated before the 90th day.
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EADs Issued by Service Centers and NBC
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Since USCIS field offices no longer issue interim EADs, applicants whose EADs have not been adjudicated in 90 days should call the NCSC for service requests. This may result in the EAD being issued by the appropriate service center or by the NBC. This request may also be made in an Infopass appointment, but since the local offices cannot issue interim EADs, they simply send requests to expedite to the centers where the cases are pending.   
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Counting the Days
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One important matter in EAD processing and the 90-day timeline is the impact of requests for evidence (RFE). When an RFE is issued for initial information, the 90-day period is rescinded and starts over when the evidence is received. If the RFE asks for additional evidence, the 90-day clock stops, but resumes upon the receipt of the additional information.
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Response to Other Suggestions
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The USCIS responded to the Ombudsman's suggestion of EADs that would be valid for multiple years by pointing to the change put into place to allow for two-year EADs in certain instances. This is familiar to many MurthyDotCom and MurthyBulletin readers, as it applies to a number of them and was the topic of our June 20, 2008 article, Two-Year EADs for Certain I-485 Applicants Effective June 30, 2008. It also pointed to 18-month EADs for persons with temporary protected status (TPS). The USCIS indicated a willingness to consider other categories for multi-year EADs.
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The USCIS was not receptive to the Ombudsman's suggestions regarding the use of the EAD receipt notice for continued employment authorization or any extension of the EAD by affixing stickers, rather than issuing new cards.
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Conclusion
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We at the Murthy Law Firm appreciate the efforts made by the CIS Ombudsman to address the problems created by EAD delays. The improvements to the EAD process, both in timely issuance and requests for action at the 75-day point, should help avoid breaks in employment authorization. We will continue to monitor issues related to EADs, as these are used by many of our MurthyDotCom and MurthyBulletin readers.