What You Want to Know About the Pending I-485-Based EAD07 Jan 2011
Many MurthyDotCom and MurthyBulletin readers are interested in obtaining the employment authorization document (EAD). The EAD is issued by the U.S. Citizenship and Immigration Services (USCIS). Holders of this document are endowed with permission to work in the United States. Although many classes of foreign nationals are eligible to apply for the EAD, this article is dedicated to clarifying many of the issues pertaining to EADs that are granted to individuals with pending applications for adjustment of status (I-485s).
Who is Eligible to Apply for the EAD?
As mentioned, there are a number of categories of foreign nationals who are eligible to request an EAD. The most common basis for MurthyDotCom and MurthyBulletin readers is the I-485-based EAD. Other fairly common ways our readers obtain EADs include those based on having L-2 status, as well as optional practical training (OPT) for F-1 students.
[A list of the EAD-eligible categories is available in the instructions for Form I-765 (PDF, 76KB). The focus of this article is limited to EADs for those with pending I-485s, for the benefit of MurthyDotCom and MurthyBulletin.]
When Can I Apply to Obtain the EAD?
The initial EAD application (Form I-765) can be filed concurrently with the I-485, when one’s priority date becomes current. The EAD can also be requested later, as long as the I-485 is still pending (even if the priority date is not current at the time of the EAD request.)
The I-485 application cannot be filed unless there is a proper basis. For employment-based cases, this is usually when an immigrant worker petition (I-140) is being filed or has been approved and if the priority date is current. For family-based cases, this is usually when an I-130 relative petition is being filed or has been approved and the priority date is current. Thus, in many green card categories, the EAD is not an available option for a very long time, as there are years of backlogs before the priority date will become current.
How Do I Renew the EAD?
The EAD may be renewed by filing the I-765 with the USCIS. This must be accompanied by the applicable filing fee (if any), and supporting documents. Individuals with I-485s filed after August 17, 2007 do not need to pay an EAD filing fee for EAD renewals. Those with I-485s filed on or before August 17, 2007, in most cases, need to pay the EAD filing fee. The EAD renewal can be requested as much as 120 days before the expiration date of the most recent EAD. It is important to be conscious of the EAD expiration date. Renewals should be filed in advance, but not prior to the allowed 120-day period.
EADs take approximately 90 days to process. There were some problems with EAD renewal delays in 2010. The issues and options available to address EAD processing delays are set out in our news article, EAD Extension Delays: FAQs, Answers and Suggestions (13.Aug.2010), available on MurthyDotCom.
If My EAD Expires, Can I Still Get a New One?
If the EAD expires, an individual can apply for an EAD renewal, as long as the basis for the EAD still exists. For EADs based on the I-485, the renewal may be requested as long as the I-485 remains pending with the USCIS.
EADs may be extended even if one’s most recent EAD has expired or will expire shortly. There is not a legal requirement to file or obtain approval of the EAD extension request during the validity of one’s EAD. However, in order to work in the United States, based on the EAD, there must be a current, valid, and approved EAD. It is not sufficient to have an EAD request pending or filed with the USCIS. For most individuals, therefore, it is advisable to file for renewal before expiration and as close to the 120-day mark as possible, in order to avoid a lapse in work authorization. If this timely filing does not happen for any reason, the EAD may still be renewed as long as the I-485 is pending. One may need another valid nonimmigrant status, like the H1B or L-1 to be able to continue working legally while in the United States.
What is the Validity Period of the EAD?
The validity period is stated on the EAD. This period can be either one or two years. The two-year EAD is given, in most instances, when the priority date is not current.
What Types of Jobs Can I Take on an EAD?
An individual possessing a valid EAD can work for any U.S. employer. The I-485-based EAD provides unrestricted employment authorization. In the employment-based green card context, however, the primary beneficiary needs to have a qualifying job offer in order to obtain approval of the green card. For many, this means working for the sponsor or in a job that fits within the provisions of the American Competitiveness in the Twenty First Century Act (AC21), requiring a position that is the “same or similar” job occupational classification as the position described in the labor certification and I-140 petition.
Dependents or derivative beneficiaries do not have such restrictions. The restriction for the primary applicant does not stem from any EAD rules. The EAD allows for any type of employment. Any restrictions simply relate to the need to have a qualifying job offer as the basis for the final approval of the employment-based green card. It should be noted that the EAD allows for full-time or part-time employment, or any combination of full- and part-time work. Thus, one could continue a full-time job with the green card sponsor, for example, while engaging in unrelated work on the EAD.
Do I Need a Job to Apply for the EAD?
It is not necessary to have a job to apply for the I-485-based EAD. The EAD is granted to those with pending I-485s. This applies both to the initial EAD application as well as EAD renewals.
Does Having an EAD Mean I am Not an H1B Anymore?
Simply obtaining the EAD does not change one’s nonimmigrant status. The EAD is an optional benefit that can be requested with, or based upon, the I-485 filing. If an individual is in H1B, H-4, or another nonimmigrant status, his/her status remains intact, as long as the terms of that status are adhered to, even if there is an EAD.
Does Getting EAD Mean My GC Case Will Be Approved?
Many individuals get very excited by the approval of their EADs and read too much into this approval. While having this work authorization can be positive, the issuance of the EAD does not mean that the USCIS has reviewed the I-485 case in detail. The EAD issuance is largely a routine administrative matter, based on a proper filing and the existence of a pending I-485 application. Even if the USCIS has granted several EAD approvals, they may very well issue a request for evidence (RFE) or even a denial of the I-485, if there are underlying problems with the case.
What if My EAD is Denied?
If an EAD is denied, the applicant is notified in writing of the decision and the reasons for the denial. There is no appeal of the denial; however, the applicant may submit a motion to reopen or a motion to reconsider, if there is a basis for such a request. Otherwise, it may be possible to refile the EAD.
An EAD denial for an I-485-based EAD is not common. Typically, a denial is issued if the individual’s I-485 is approved while the EAD is pending. In such an instance, the applicant is granted permanent residence and is no longer in need of or eligible for the EAD. A denial can occur, as well, if an RFE is issued and there is not a timely or complete response. An EAD also is denied if the underlying I-485 is denied before the EAD is issued.
The EAD is a valuable benefit, providing flexibility in employment options. It is often assumed that there are restrictions or requirements that do not exist with the EAD. This information should clear up many of the most common questions and misconceptions about the EAD for our readers. Those with further questions are welcome to consult with an attorney at the Murthy Law Firm to obtain advice on this important document that allows an individual to work in the United States.