EAD Extension Rule Published on July 30, 2004
Posted Aug 06, 2004
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As we anticipated for MurthyDotCom visitors in our July 29, 2004 online NewsFlash, the USCIS has published an interim rule permitting most Employment Authorization Documents (EADs) to be issued for time periods of over one year. The rule, published on July 30, 2004, is effective immediately. There is an opportunity for written comments to be submitted, through September 28, 2004. In brief, the interim rule amends the regulations regarding the issuance of EADs to allow the USCIS to establish validity periods for EADs based upon a number of stated factors. Before this adjustment, EADs generally were valid for one year, except in certain cases like for spouses on E-2 or L-2 status who were able to obtain EADs for longer than one year. Now, under the interim rule, an EAD may be issued for a period longer or shorter than the one year timeframe.
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Reasons for Possibly Longer EADs
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This change is part of the ongoing effort to streamline the USCIS and reduce the case processing backlogs. The problem with EADs is rather circular. A prime example is the processing time for the I-485, Application for Adjustment of Status. Individuals with I-485s pending are eligible to request EADs. With I-485s often backlogged for several years, particularly in the employment-based context, people had to apply for EAD extensions at least once, if not twice or even thrice. These repeated EAD filings create significant additional work for the USCIS and add to the backlogs in other areas. The EAD filings represent a substantial portion of the USCIS workload. They receive over 950,000 EAD requests each year. Thus, permitting validity periods in excess of one year should help to considerably reduce the USCIS workload.
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Factors to Consider Regarding the Durations of EADs
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Under the interim rule, the USCIS will have discretion and flexibility to establish the length of EADs for various categories of eligible individuals. They will be able to consider relevant factors such as security considerations, application processing times, response times for background checks, the individuals' immigration statuses, or other factors that they deem relevant. The regulation allows the USCIS to both increase and decrease the validity of the EAD period, as appropriate to the situation.
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Initial and Renewal EADs are Subject to Rule
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The interim rule applies to applications for initial EADs as well as extensions and replacement cards. Prior to the interim regulation most EAD periods were set at one year, either by regulation or policy. Now they will vary in duration, depending upon how an individual is classified. Even within the classes of individuals, however, the USCIS will have authority to reduce the validity period for an individual, if it is warranted.
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To have uniformity, the USCIS will issue guidance to adjudicators establishing standard criteria for application in those instances where they should use their discretion to reduce the length of the EAD validity period for an individual.
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Conclusion
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It will be a welcome relief to be able to obtain EAD cards that have extended validity periods related to the processing times for the I-485 or based on the processing times of particular USCIS local offices. The need to extend the EAD each year, to obtain the new EAD in order to be able to work or continue to work, is a source of stress to everyone involved in the immigration process. This change, if widely and generously applied, should reduce the workload and stress levels for the employer, the employee, the USCIS, and the attorney, all of whom are involved in repeated filings for EAD extensions.
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