Employment Authorization Document Misconceptions

Many foreign nationals 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 an 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, a foreign national who already possesses a valid EAD typically can file an application to renew the document no earlier than 180 days before the existing EAD expires to avoid a possible gap in employment authorization.

Automatic Extension of Work Authorization

The EAD allows a beneficiary to work only upon approval of the application. When applying to renew an EAD, certain applicants may qualify for automatic extension of their employment authorization while their renewal application is pending. To be eligible for continued employment authorization, the applicant must meet certain requirements, including submitting a renewal application prior to the expiration of the current EAD in the same category that is specifically designated for automatic extension.

Ordinarily, employment authorization based on a pending extension application continues for up to 180 days or the denial of such request, whichever is earlier. However, based on the temporary final rule that went into effect on May 4, 2022, qualifying automatic extensions may continue for up to 540 days, subject to limited circumstances. Those include pending applications filed prior to May 4, 2022 regardless of whether the 180-day extension already expired, and those filed between May 4, 2022 and October 26, 2023. Qualifying renewal EAD requests filed after October 26, 2023 are subject to the standard 180-day automatic extension.

Notably, some categories, such as J-2 nonimmigrants, are not eligible for automatic extension and will need to wait for the approval of the extension EAD to resume employment. Also, for certain categories, most notably H-4, the automatic extension only applies through the applicant’s I-94 expiration date.

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. But, this rule does not apply to EAD 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 180 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.

While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, clients of the Murthy Law Firm are referred to articles, like this one, which remains relevant and has been updated for our readers.

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