EAD Processing Times - Averaging 110 Days

In our office's recent experience, EAD processing times are currently averaging approx. 110 days.  While the changes relating to automatic extension of EAD's from earlier this year is helpful to those with ongoing/pending applications, it is causing extensive delays for first-time applicants. 


Proceeding with Caution on the Current Version of the I-485

On June 26, 2017, USCIS released a new version of the I-485, Application to Register Permanent Residence or Adjust Status.   This version of the form asks new questions that weren't on the previous version under Part 8 - General Eligibility and Inadmissibility Grounds.  

When answering these questions, it is essential for an applicant to make sure that they are accurately answering these questions to the best of their knowledge.  While a "Yes" answer may not give rise to a ground of inadmissibility (ie. a reason an applicant cannot have be approved for permanent resident status), a purposeful and incorrect "No" answer can give rise to another issue - an allegation and charge of fraud/misrepresentation.

A fraud/misrepresentation finding is a lifetime bar - which can only be waived if the applicant can establish extreme hardship to their Lawful Permanent Resident or US Citizen Parent or Spouse (Lawful Permanent Resident or US Citizen children do not count as qualifying relatives for the hardship waiver). 

For example, Question #16 reads "Have you EVER worked in the United States without authorization?"  For most applicants for adjustment of status, having worked in the U.S. without authorization could lead to a denial of an adjustment application.  However, for immediate relatives (spouses, parents and unmarried children under age 21 of US Citizens), it does not.  It would also lead to denial for employment based adjustment applicants, unless they qualify for exception under INA §245(k). 

However, if either applicant fails to disclose the unauthorized employment, USCIS could charge them with inadmissibility under INA §212(a)(6)(c) - Fraud/Misrepresentation.  In some situations, this may be ultimately a salvageable issue - on legal grounds - but it could give rise to USCIS choosing to deny the adjustment application as a matter of discretion.

Ultimately, its become essential, now more than ever, that applicants with any type of adverse history (Criminal or immigration), speak to an experienced immigration attorney before applying for adjustment.


Automatic EAD Extensions for Pending AOS Applicants & I-9 Compliance

Earlier this year, USCIS announced the automatic extension of expiring EADs for up to 180 days certain applicants to try and prevent gaps in employment authorization for certain individuals.

USCIS has a list of which categories are eligible for the automatic extension if they meet certain criteria, which can be found at: Automatic Employment Authorization Document (EAD) Extension.

One of the most prominent categories eligible for the automatic extension is (c)(9) - Applications with pending adjustment of status application.  

So the criteria?

  • Properly file an application for a renewal EAD before the current EAD expires; and
  • Your currently issued EAD Category Code matches the Category Code you are seeking on the renewal EAD.

So how does this work with an employer asking for employment re-verification based on an expiring EAD? 

USCIS updated M-274, Handbook for Employers, to provide guidance to employers on this matter.  

Specifically, M-274 Section 4.2 - Automatic Extensions of EADs in Certain Circumstances, which confirms which categories are eligible for the automatic extension and the requirements for the automatic extension. This section goes on to confirm that the combination of:

  • the employee's expired EAD card; and 
  • the Form I-797 Receipt Notice from USCIS showing that the EAD renewal application was timely filed and showing the same category as the one on the employee's EAD card,

are an acceptable combination of documentation to demonstrate employment authorization and identity. This document combination is considered the equivalent of an unexpired Employment Authorization Document (Form I-766), a List A Document. 

The section also provides guidance to HR professionals in completing the I-9 sections in these situations and required reverification procedures.