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Update: Automatic EAD Extensions

20:16 02 February in News Updates
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AUTOMATIC EAD EXTENSIONS PROVIDED BY THE “HIGH SKILLS BILL”

2/1/17 Updates: 

I-9 guidance now available

USCIS reverses position; EADs timely-filed before 1/17/17 now grandfathered

 

Background

On Jan. 17,2017, a final rule, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” went into effect.

This regulation implemented one of the Obama Administration’s directives to address some of the issues related to the lengthy delays in the employment-based permanent residency process.   For example, Indian nationals in the EB-3 category face an approximately 12-year wait for an immigrant visa to become available to complete the green card process.

One of the provisions of the rule provides for the automatic 180-day extension of certain Form I-766 Employment Authorization Documents (EADs).

Note:   President Trump has indicated an intention to review all regulations which allow foreign nationals to work lawfully in the United States, including those related to EADs.  However, changes to federal regulations cannot be made immediately or unilaterally by executive order.  Rather, a change in regulations requires a formal process through the Administrative Procedures Act.  Therefore, while the below may change in the future, it should not change without notice.

Automatic 180-day EAD extension

Effective 1/17/17, automatic extension of EADs for up to 180 days apply to those who:    

*   Timely filed to renew an Employment Authorization Document (EAD); 

*   Are applying to renew an EAD in the same category as the previous EAD (A12 and C19 are considered the same category for this extension); and

*   Are in a category that is eligible for the extension.   Categories are listed below.  Please note that L-2 and H-4 EADs are not eligible for the automatic extension. 

        (a)(3)    Refugee

(a)(5)    Asylee (Granted asylum)

(a)(7)    N-8 or N-9 nonimmigrant

(a)(8)    Admitted as citizen of Micronesia, the Marshall Islands, or Palau

(a)(10)  Granted withholding of deportation or removal

(a)(12)  Temporary Protected Status (TPS) granted

(c)(19) Temporary treatment benefits while an application for temporary protected status (TPS) is pending or an application to extend TPS status is pending

(c)(8)    Asylum applicant

(c)(9)    Pending family-based or employment-based Form I-485, Application to Register Permanent Resident or Adjust Status

(c)(10) Applicant for Section 244 suspension of deportation or 240A cancellation of removal (applicants who are NOT eligible for NACARA 203 relief)

(c)(16) Registry applicant based on continuous residence since January 1, 1972

(c)(20) Pending Form I-700, Application for Temporary Resident Status as a Special Agricultural Worker Under Section  210 of the Immigration and Nationality Act

(c)(22) Pending Form I-687, Application for Temporary Resident Status under INA Section 245A

(c)(24) LIFE Legalization applicant

(c)(31) VAWA self-petitioners

Elimination of Interim 90-day EAD regulation

Effective 1/17/17, the requirement that USCIS adjudicate EADs within 90 days of application was eliminated.

What about those who had timely-filed EAD applications pending with USCIS on 1/17/17?

The new regulations posed a problem for those who timely-filed EAD extensions before 1/17/17, who no longer had the protection of the 90-day interim EAD, but could not benefit from the 180-day extension either.   USCIS policy had been that these individuals were out of luck, and if their work authorization expired, they simply had to wait until USCIS got around to adjudicating the application for extension.

On 1/31/17 USCIS Service Center Operations provided an amended response; they now affirm that such cases are eligible for the 180-day automatic extension.  USCIS also issued a fact sheet which confirms this:  https://www.uscis.gov/sites/default/files/USCIS/Verification/I-9%20Central/FactSheets/Fact-Sheet-AutoExtendEAD.pdf

Filing date extended from 120 to 180 days

There are still many EAD categories which do not qualify for the automatic 180-day extension.  Also, even for those that qualify for the automatic extension, the new EAD card itself may be necessary for other purposes, such as driver’s license renewals in some states.   Therefore, USCIS has extended the date on which they will accept EAD extensions from 120 days prior to the current document’s expiration, to 180 days.

Does the rule also extend an advance parole/ travel validity, for those who have a combination EAD/AP?     

No.

Form I-9, Employment Eligibility Verification Form

The Fact Sheet USCIS published on 1/30/17 provides details on how to complete an I-9 based on an automatic 180-day EAD extension:

https://www.uscis.gov/sites/default/files/USCIS/Verification/I-9%20Central/FactSheets/Fact-Sheet-AutoExtendEAD.pdf

As always, should you have any questions regarding the above, please contact your LAC attorney.

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