Employment Authorization Document Misconceptions

Many foreign nationals, it would seem, tend to hold some mistaken beliefs related to the employment authorization document (EAD). Laws and regulations that govern employment through the EAD may differ substantially from the rules that govern work authorization provided by nonimmigrant status, such as H1B. Foreign nationals must make efforts to avoid inadvertently engaging in unauthorized employment by failing to understand such differences.

Background: Timing and Basis for EAD

Various classes of foreign nationals in the United States are eligible to apply for the EAD. Eligibility can stem from a pending adjustment of status application (form I-485), or from L-2 dependent status, or any of the number of other options listed on the application for employment authorization (form I-765) instructions. The foreign national generally must be in the United States in order to apply for an EAD. Further, as explained in the MurthyDotCom NewsBrief, EAD and AP Renewal – Clarifications (05.March.2013), a foreign national who already possesses a valid EAD generally can file an application to renew the document no earlier than 120 days before the existing EAD expires. The U.S. Citizenship and Immigration Services (USCIS) is required to process EAD applications within 90 days.

EAD Must Be Approved Prior to Work Authorization

The EAD allows a beneficiary to work only upon approval of the application. When applying to renew an EAD, one temporarily loses employment authorization if the EAD expires before approval of the renewal request. Given that a renewal application can be filed up to 120 days before expiration of the EAD, combined with a 90-day processing window, it generally is possible to avoid gaps in EAD validity. Unfortunately, there are many individuals who do not take advantage of the advance filing option. Sometimes this is an oversight. In other situations, the foreign nationals may not realize the importance of advance filing, mistakenly believing the pending EAD application is sufficient to provide authorization to continue working.

Likely Source of Confusion: Rules for Pending Nonimmigrant Petitions

Confusion with respect to employment authorization while an application is pending likely arises from a different set of regulations that apply to H1B cases and other work-authorized nonimmigrant categories. In most circumstances, the timely filing of a petition to extend status for a foreign national in a work-authorized nonimmigrant status, automatically serves to provide the individual with continued work authorization while the petition remains pending. This authorization is generally limited to a 240 day period.  It is important to note, however, that no comparable rule exists for EAD renewal applications.

Conclusion: Plan Ahead and Get Advice

Those relying on the EAD for work authorization generally should file their EAD renewal applications as early as permitted under the regulations, which, again, will usually be 120 days before the current EAD expires. There are serious potential immigration consequences that can result from engaging in unauthorized employment. Therefore, foreign nationals who find themselves facing a lapse in work authorization should seek legal advice. Murthy Law Firm attorneys are available to discuss possible options and risks regarding EAD applications and work authorization in the United States.

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.