Possible Multi-Year EAD/AP, I-94 Corrections, and Anticipated AC21 Regulations

The USCIS responded to questions posed by the American Immigration Lawyers Association’s liaison committee and released information in April 2008 regarding a number of matters relevant to MurthyDotCom and MurthyBulletin readers. These include consideration of a multi-year Employment Authorization Document (EAD) and Advance Parole (AP) for travel, as well as the use of Form I-102 to correct I-94 cards, future N-400 filings to the Chicago Lockbox, matters relating to EB5 petitions, and other employment-based matters. There was mention of a possible regulation for the American Competitiveness in the Twenty First Century (AC21) Act.

Multi-Year EAD/AP under Review

The USCIS is considering extending the duration of Employment Authorization Documents (EADs) beyond one year for applicants affected by employment-based visa retrogression. As regular MurthyDotCom and the MurthyBulletin were informed in our January 17, 2008 article, New Initiative by Immigration Voice, interest groups such as AILA, Immigration Voice, and others have been arguing for multi-year EAD cards. The proposal is being considered as part of an effort toward issuance of a combination EAD/AP document.

There was no timetable established for a decision on this matter. Readers who rely upon their EAD and AP documents for work and travel are urged to renew them in a timely fashion, about 120 days before the expiration date to be safe. It is not advisable to wait for any potential changes in the regulations or policy regarding EADs and APs and risk a lapse in the ability to work or travel.

Form I-102 for Corrections on I-94

USCIS has clarified that Form I-102 should be used to replace lost I-94 cards, regardless of whether they were issued by the USCIS (with an extension or change of status) or by an inspector of the Customs and Border Protection (CBP) at a U.S. Port of Entry. The wording on Form I-102 is a bit confusing in this regard, since it is not appropriate for use when requesting a correction of an I-94 determination made by CBP.

The I-102 can be used to correct mistakes made either by the applicant or the USCIS. The filing fee must accompany the Form if requesting correction of an applicant’s mistake. As long-time readers of MurthyDotCom and the MurthyBulletin may recall from our April 30, 2004 article, Correcting I-94 Card Errors with USCIS Now Easier!, any submission based on an alleged error by the USCIS should be accompanied by supporting evidence.

Lockbox Expansion for N-400s

In an effort to address the increase in naturalization applications, the USCIS plans to shift the intake of these applications to a lockbox. Their target date is September 2008. This is part of a long-term effort to streamline the intake of all applications to lockboxes over the next two years. Filing procedures for the Chicago lockbox were discussed in our December 14, 2007 article, Stand-Alone 1-130s Filed at Chicago Lockbox.

Clarification of EB5 Requirements

As explained in our March 14, 2008 MurthyBulletin article, EB2 Investor Must Satisfy All Legal Requirements, available on MurthyDotCom, one condition for approval is to create ten full-time U.S. jobs. The regulation states that these jobs must be produced within a “reasonable period of time.” The USCIS has said what constitutes reasonable is determined on a case-by-case basis, but an I-829 petition is more likely to be approved when the jobs have been created by the time of adjudication.

H1B or L-1 Status if Working on EAD

It is subject to interpretation whether one who holds H-1 or L-1 status and who otherwise is maintaining that status can do so while also using an EAD to work in a part-time or other position. AILA outlined a number of arguments in support of allowing the EAD work while an individual also should be considered to be holding H1B or L-1 status. The USCIS is reviewing and considering this matter.

AC21 Regulations under Revision

The liaison notes made brief reference to an AC21 regulation being under revision, with publication expected in the near future. AC21 became law in October 2000 and has been interpreted through a series of Legacy INS and USCIS memos, rather than regulations. There have been previous announcements of anticipated regulations on AC21, so it is unclear whether something is finally in the offing.