Most Same-Day EADs and Advance Paroles End
Posted Nov 29, 2002

The INS has issued a memorandum directing all INS offices to stop same- day issuance of benefits when there is a temporary "A" file. The "A" file is the official INS file, which should include all the information available on an applicant. The INS sometimes creates temporary "A" files, when the permanent file is with another office or in other similar situations. The procedures for temporary files are discussed below. Even when the regular "A" file is available, the Memo requires elaborate procedures that will result in delays in the process. The Memo has not been released, but the American Immigration Lawyers Association has compiled a summary, based upon reports from INS spokespeople. As a result of the Memo, all INS offices that previously issued Employment Authorization Documents (EADs) and/or Advance Paroles (APs) on a one-day or walk-in basis will no longer do so.

Adjudicators are Responsible

The terms of the Memo hold the adjudicators responsible for obtaining and reviewing the entire "A" file to determine whether there is any information that would make the applicant ineligible for the benefit sought. One must also review all the information in the file obtained via background checks. When reviewing IBIS name checks, they must look for potential aliases, i.e. other names used. IBIS checks are also required on the additional names. If the IBIS name check results in an indication from the FBI that a record exists or may exist, the application for EAD or AP must be put "on hold" until a definitive determination can be made as to whether the "hit" pertains to the individual in question. The INS adjudicator must document all the efforts and the results.

Additional Background Checks on Temporary Files

INS adjudicators must exercise even greater care when working from a temporary "A" file. In addition to having to undergo all the standard background checks, the adjudicator must review the INS Central Index System (CIS) for other records pertaining to the same applicant within INS. Any such files must be reviewed, the issue resolved, and the entire matter made part of the file. If no records are found, INS places a note to that effect in the file. All such cases must be reviewed and approved by a supervisor prior to final approval. The only appropriate supervisors are the Assistant District Director for Adjudications, the Assistant Service Center Director, or the Officer in Charge. This supervisory role cannot be delegated to any lower-level supervisors.

File the EAD Extension even if GC Approval is Due

In light of the above, it is necessary to apply for the EAD in a timely manner. The same holds true for renewals, which are often inadvertently overlooked. Occasionally, people will not renew their EADs in time because they hope to obtain the green card approval before the old EAD expires. Such a delay is unwise, as the EAD is necessary for one to work, is a fairly simple form, and has an INS filing fee of $120.00. Even prior to the new Memo, EAD renewals were generally taking 3 to 4 months in most locations.

File the AP even if one has H1B Visa

It also now is wise to apply for the AP at the same time as the I-485. Even if travel is not anticipated, the AP may be needed in case of family illness or emergency in one's home country. Also, if a person has H1B status and a valid H1B visa stamp in the passport, should s/he lose his/her job, s/he will not be able to travel abroad and reenter the U.S. without the AP. Prior to the Memo, many INS offices adjudicated the AP on a two-tier track -- standard and emergency. While it may have taken several months in some locations for a "standard" case, there was generally a much quicker process for emergencies such as grave illnesses and funerals. With this option apparently foreclosed and the great potential for lengthy processing times, advance planning is necessary to avoid inability to travel or work. It should also be noted that many individuals on H-1 status opt not to extend their H status once they file for adjustment of status and obtain an EAD. These new procedures may provide a new reason for continuing the H-1, to allow for travel and continued work authorization and avoid the problems created by the new INS Memo.