Two-Year EADs and Reported Errors on EAD Cards
Posted Jul 25, 2008
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The United States Citizenship and Immigration Services (USCIS) recently clarified the policy for eligibility for two-year employment authorization documents (EAD). Also provided was information regarding errors on some of the EAD cards.
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Two-Year EADs
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As mentioned in our June 20, 2008 MurthyBulletin article, Two-Year EADs for Certain I-485 Applicants Effective June 30, 2008, an EAD with a two-year validity may be issued to an individual who applies for an EAD based on a pending Application for Adjustment of Status (Form I-485) if there is not an available visa number for the case, based upon the cutoff dates established in the U.S. Department of State (DOS) Visa Bulletin. [The latest DOS Visa Bulletin chart is always available on MurthyDotCom.] USCIS indicated that two-year EAD cards would be issued for EAD applications pending on and after June 30, 2008.
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Criteria for Two-Year EADs: I-140 Approval and No Visa Number
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Since the cutoff dates in the Visa Bulletin are subject to change each month, questions have arisen regarding exactly how the USCIS will make a decision on the issuance of a two-year EAD. The USCIS released a clarification in mid-July 2008. An important point made in the clarification is that, regardless of an unavailable priority date, the EAD will only be granted for one year if the I-140 petition has not yet been approved.
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If the I-140 has been approved, the USCIS will review whether or not the priority date is current when the Application for Employment Authorization (I-765) is filed. They can either decide the duration of the EAD on that basis, or review the priority date again at the time of adjudication. If the applicant's priority date is backlogged at the time of filing, the USCIS could grant a two-year EAD. However, the USCIS may also review a case again at the time of adjudication and, if the priority date is current, they could issue only a one year EAD, in their discretion. Thus, when the priority date is unavailable when the I-765 is filed, but becomes available while the I-765 is pending, the USCIS, at its discretion, may issue a one-year EAD instead of a two-year EAD. Alternatively, if the applicant's priority date is current when the I-765 is filed, but later retrogresses when the I-765 application is pending, the USCIS may issue a one-year EAD based upon the situation when the I-765 was filed. Alternatively, they could review the case and issue the two-year EAD based upon the unavailability of the visa number at the time a decision is made on the I-765. Based upon this clarification, therefore, it seems that there is no assurance of a two-year EAD in a situation with a priority date that is in flux and the visa number available during any of the time between filing and adjudication.
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Our Experience with Two-Year EADs

At the Murthy Law Firm, we started to receive the two-year EAD approvals in July 2008. As of late July, it is our experience is that these are being issued on a regular basis.
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EAD Errors : No Combined EAD/AP
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There have been some recent problems with errors on EAD cards. One significant mistake is the recent issuance of EAD cards with the notation: "Serves as I-512 Advance Parole." The USCIS indicated that these cards were issued in error and, although the EAD is still valid for authorization for employment, the advance parole notation is not valid. Those who require an Advance Parole document for international travel should not travel without valid I-512 Advance Parole approval. An EAD with the incorrect notation is not a valid travel document.
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Reports of Other EAD Card Errors

Other errors reported by EAD recipients include incorrect personal information (i.e., country of birth, date of birth, spelling of name, gender, etc). In some instances, the photos have been switched with either that of a spouse or a completely unrelated person during production of the EAD cards. There are also mistakes in the validity dates. AILA attorneys have been provided with instructions for addressing these errors by returning the EADs and requesting new, correct EADs for I-485 applicants.
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Conclusion
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Individuals with EADs should review these to confirm there are no errors are on the card. They should be aware of the two-year EAD criteria, so that expectations will be set appropriately. It is always best to file the EAD extension request promptly, rather than trying to delay the filing to be potentially eligible for additional time, if the EAD is relied upon for work authorization.