EAD Cards Should No Longer Have a Gap in Dates
Posted Jan 19, 2000

NSC also confirmed in its meeting with AILA representatives on December 20, 1999 that it will henceforth date Employment Authorization Documents (EADs) so that there is no gap in work authorization, including back-dating the cards as necessary, provided that the I-765 application was filed timely. Timely filing refers to the application having been filed prior to the expiration of the previous EAD card.

This policy of dating EAD cards so that there is no gap in the dates makes sense since it is not practical for most employers to require an employee who applies for extension of the EAD card to discontinue working in the middle of an assignment. Merely back-dating the EAD cards does not mean that the person is legally authorized to work when EAD expires, though back-dating will retroactively cure the problem. INS continues to require the person to have a valid EAD to work, even though the delay in issuing the EAD or extending it may be a delay on the part of INS. In practice, in an enforcement action by the INS, the INS will likely find that both the employer and the employee have acted in good faith if the EAD card extension was filed timely. Also the discrepancies in EAD card processing times among the various INS Service Centers are considerable.

Even though back-dating the EAD card so that there is no gap in the dates will not afford full protection to the employer or the employee, the Law Office of Sheela Murthy is pleased with this practical and consistent interpretation of NSC in back-dating EAD cards, since many local INS offices have had a similar policy in place for quite some time.