United States: Mind The Gap: Automatic Work Authorization Extensions Help Foreign National Employees Stay Productive Following EAD Expiration

In the last months of President Barack Obama's administration many regulatory changes were made that were meant to improve the functioning of the business immigration system, including changes to the process for Employment Authorization Document (EAD) extensions. One of the new regulations that went into effect on January 17, 2017, allows certain applicants for EAD extensions to continue to work in the United States with authorization for 180 days after the expiration of the previous EAD while the extension request is pending, as long as the extension was timely filed before the EAD expired. This change provides welcome relief for employers and employees caught in situations where an EAD extension request has been filed, but the old EAD expires before USCIS completes processing and approves the extension.

Background

The U.S. immigration system allows certain foreign nationals to work in the United States if they have a visa status that intrinsically allows employment, such as H-1B visa status for professional workers, or if they are issued work permits (i.e., EADs) that are available while in a particular status in the United States, such as an asylee, a student, or an applicant for a green card. Such work permits are taking 90 to 120 days for approval from the date of filing and an additional 30 days to receive the physical EAD card. The applicant must have the EAD card in hand to be legally authorized to work, and normally the foreign national can only work after the EAD is approved and received. Work permits are usually valid for a year or two, on the condition that the required underlying status is maintained. This can create timing and planning difficulties for employers.

Though employers are often frustrated by how long it takes for initial EAD applications to get approved, some are even more frustrated when it comes to extending EADs, especially for active employees. Processing times for EAD extensions keep getting longer and longer, and in most cases an employee cannot work once an old EAD expires, even if an extension was filed many months before the expiration date. Because it currently takes three to four months or more for an EAD extension to be approved (until recently, an applicant could only apply for an extension 120 days before an EAD expiration date), timing has been a bit of a challenge for employees and employers. Resulting gaps between old and new EADs sometimes required a foreign national employee to be taken off a company payroll when an old EAD had expired before a new, extended EAD card had arrived. This situation often resulted in the loss of a valuable employee, administrative issues with updating company payroll data, and the loss of revenue that the employee might have generated, among other headaches. The automatic employment authorization extension put into effect at the end of the Obama administration provided employers and employees with a way to bridge the gaps.

Applicants for extensions are now allowed to apply for extensions up to 180 days before their EAD expiration dates, affording them more lead time to further offset the chance that a gap could result between the expiration of an existing EAD and the approval of an extension. However, U.S. Citizenship and Immigration Services (USCIS) is no longer required to adjudicate EAD extensions within 90 days of receipt of timely filed extension applications (a standard that was previously required, though frequently not adhered to). Moreover, the new automatic extension instituted at the end of the Obama administration applies only to certain work permit eligibility categories. Employers will be pleased to know that pending extensions filed before January 17, 2017, when the regulation went into effect, may also be eligible for the new automatic extension. USCIS is currently reissuing I-765 EAD receipt notices, which have been revised to reflect the EAD category, in order to help employers take advantage of this benefit.

Who Is Eligible for an Automatic Extension?

Certain conditions must be met to qualify for the automatic extension. In order to be eligible, applicants must be applying to extend their EADs on the same legal bases as their previous EADs. In addition, the automatic extension is limited to the following work permit eligibility categories:

  1. Refugees admitted to the United States fleeing persecution—Form I-765 category code (a)(3)
  2. Asylees granted asylum from persecution—(a)(5)
  3. Parents or the dependent children of people who received permanent residency as a special immigrant under section 101(a)(27)(I) – (a)(7) of the Immigration and Nationality Act (INA)
  4. Citizens of Micronesia, the Marshall Islands, or Palau—(a)(8)
  5. Applicants granted withholding of deportation or removal—(a)(10)
  6. Beneficiaries of temporary protected status (TPS), as nationals of countries to which they cannot safely return—(a)(12) and (c)(19)
  7. Applicants for asylum or withholding of deportation or removal—(c)(8)
  8. Applicants for adjustment of status to lawful permanent residency ("green card" applicants)—(c)(9)
  9. Applicants for suspension of deportation and cancellation of removal—(c)(10)
  10. Applicants for creation of a record of lawful admission for permanent residence—(c)(16)
  11. Applicants for legalization under section 210 of the INA—(c)(20) and (c)(22)
  12. Applicants for adjustment of status to lawful permanent residency under the LIFE (Legal Immigration Family Equity) Act, which allows certain undocumented individuals to adjust status if they had an immigrant petition or labor certification filed before April 30, 2001—(c)(24)
  13. Beneficiaries of the Violence Against Women Act (VAWA)—(c)(31)

How Is Eligibility Determined for Automatic EAD Extensions?

A foreign national can determine if he or she is eligible for an automatic extension by examining the employment authorization category on the actual EAD to ensure that it is one of the above-mentioned categories. Eligibility will also require that the receipt notice of the extension application indicate that the application was received on or before the current EAD expired and that the EAD employment authorization category is the same as the previous EAD. To be valid, the receipt must indicate the category of the EAD extension. This benefit does not apply to first-time applicants for EADs and does not permit automatic extensions of travel documents (i.e., Advance Parole documents). Unfortunately, many common types of EADs for foreign workers, such as work permits for spouses of L-1 visa holders (L-2 visas) or the spouses of H-1B visa holders (H-4 visas), are not eligible for this automatic extension of work authorization. However, applicants for adjustment of status (green card applicants) will often have work permits based on their pending adjustment of status (I-485) applications. This type of work permit—officially, category (c)(9)—is very common and these applicants for adjustment of status are eligible for the new automatic 180-day work permit extension.

How Does the Rule Change How I-9 Forms Are Completed?

An employee's expired EAD card in combination with a Form I-797C receipt showing that an EAD extension application was timely filed and showing the same qualifying eligibility category as on the expired EAD, is an acceptable document for Form I-9, Employment Eligibility Verification. Such a document combination is considered an unexpired EAD under List A of the Form I-9 process which sets forth documents acceptable for establishing both identity and employment authorization.

The new automatic employment authorization extension regulation is a welcome benefit for certain categories of work permits, though employers would be wise to continue to apply to extend work permits as early as possible—now 180 days before expiration. However, the Trump administration has made it clear that it will be focusing on immigration enforcement and limiting immigration benefits, as shown by recent immigration raids. The new administration is rolling back regulations implemented in the last months of the Obama administration, and has promised to restrict immigration and employment benefits for foreign workers. In light of the changing immigration environment, the new, more flexible EAD extension rules could face an uncertain future. Ogletree Deakins will continue to monitor the situation and provide updates as developments warrant.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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