Employment Authorization Documents delayed at USCIS
The below information is important to any:
• Human resources representative;
• Manager of an employee working pursuant an EAD;
• Foreign national currently working pursuant to an EAD; and
• Foreign national seeking employment and planning to use a pending EAD in the near future for work authorization purposes.
A person can be eligible for an EAD card based on a variety of statuses, such as being an applicant for Adjustment of Status, an F-1 student on Optional Practical Training, and the spouse of those who hold E-1/ E-2/ E-3, J-1, or L-1 status.
In some visa categories, by regulation the timely filing of an extension of status with USCIS automatically extends a person’s work authorization for up to 240 days past the expiration of the current status. For example, this is true for E, H-1B, L-1, O-1, and TN statuses. However, this benefit does not apply to an EAD. A person must have the new original valid EAD card in hand by the date their current EAD card expires in order to continue working.
Timely filing of an EAD
USCIS will not accept an application for extension of an EAD card more than 120 days prior to the expiration date of the current document. However, by Federal Regulation, USCIS is required to adjudicate EAD applications in 90 days. If they are unable to do so, they are to issue an interim EAD document. Therefore, those who file EAD extensions between 90 and 120 days prior to the expiration date of their current document should not have a gap in their work authorization.
U.S. Citizenship and Immigration Services (USCIS) processing times fluctuate based on their workload. Although USCIS posts processing times on its website at http://www.uscis.gov/, the actual average processing time for all case types is often at least 2 months longer than reflected on the website.
Since early January, we have seen significant delays in USCIS adjudication of Employment Authorization Documents (EADs), with processing times exceeding 120 days and USCIS failing to issue interim EAD documents. This is a nationwide problem which is affecting many EAD applicants.
What is causing the EAD delays?
We don’t know with certainty. USCIS has not made any comment formally or though liaison about the delays. We suspect that USCIS workload has increased significantly due to certain case types being due for extension, and USCIS may have shifted resources to address adjudications of these cases. However, this is only an educated guess, and we have no information as to when the processing times will improve.
What can we do about it?
• Last month LAC asked the liaison to USCIS Headquarters to look into this systemic problem, as it is causing loss of work authorization and employment opportunities for many people. Other than an automated confirmation of receipt, we have not received a response to this inquiry to date.
• We have calendared all EAD applications for phone inquiry (placement of a formal Service Request) with USCIS 75 days after filing, to alert USCIS that the 90 days is approaching and the USCIS will need to adjudicate the application or issue an interim document. Note that USCIS will not accept the inquiry prior to the 75-day mark.
• We then follow up via e-mail with the USCIS Service Center where the EAD application is pending.
The results are more than frustrating. When we do receive a response from USCIS, it is a boilerplate response advising us to wait 60 days and check back with them if the document is not issued by then. This is unacceptable given that applicants are being taken off payroll and losing employment opportunities due to administrative delays at the Agency. When we attempt further follow-ups, we are not allowed to place a formal request because we have not waited the requisite amount of time. In some cases, we are reprimanded and advised it is not necessary to submit multiple inquiries. In fact, we find it quite necessary, although the inquiries do not seem to resolve anything.
• Technically, an applicant does have the option of filing a Mandamus Action in Federal District Court, which would result in a judge ordering USCIS to adjudicate the matter pursuant to its regulatory obligation. However, other than proving a point, this option will not result in a timely resolution of what the applicant needs, which is for the overdue EAD card to be issued immediately.
• Another option is for the applicant to contact his or her Congressperson. Congressional Representatives do have a means to communicate directly with USCIS. However, USCIS warns that any congressional inquiry will result in the case being removed from their internal resolution queue, and may delay the final determination of the matter further.
Bureaucratic obstacles are not uncommon at the Agency and unfortunately dealing with them has been part of the practice of immigration law for as long as we can remember. However, the current situation with EADs is extreme and is very frustrating for us and for our clients. Please rest assured that we are doing all we can to resolve each overdue case. In the meantime, the most proactive thing we can do is ensure an application for an EAD extension is filed at the 120-day mark. We will continue with all measures to expedite cases pre- and post-filing with USCIS, but ultimately we remain at the mercy of the adjudicating agency.