Employment Authorization Renewal Issues

Being admitted to the United States does not mean that you are permitted to work legally in the country. In fact, many nonimmigrant visa holders are not permitted to work at all, such as a B-2 visitor’s visa or people entered under visa waiver programs (VWP). Other employment-based nonimmigrant visas, such as H-1B, L-1, O, P, E-1/E-2/E-3 visas, or F-1 under certain conditions, are permitted to work so long as they comply with the rules and regulations of the visa category and do not need to apply for EAD while in such visa status. 

On the other hand, some nonimmigrant visas, such as J-2, L-2, certain H-4, and F-1 in Optional Practical Training (OPT), though permitted to work under certain conditions, must file Form I-765 Application for Employment Authorization and receive Employment Authorization Documentation (EAD) in order to work legally and receive compensation in the United States. If you are adjusting your status to permanent residency but your Form I-485 is still pending with USCIS, you are eligible for EAD application by filing the I-765 concurrently with your I-485 Adjustment of Status application. 

However, no matter on what basis you submit your I-765 application and receive your EAD, it is not permanent and at some point of time you may need to extend or renew your EAD in order to continue your employment in the U.S. 

 

Eligibility for I-765 Employment Authorization

In summary, the following visa categories are eligible for Employment Authorization, including but not limited to:

  1. Applicants of I-485 Application for Adjustment of Status;
  2. F-1 International Students 
    • In Optional Practical Training (OPT) doing jobs/volunteer work directly related to one’s field of studies after completion of one’s academic program and enrollment as a full-time student at an accredited school for at least 9-12 months;
    • Who need to seek off-campus employment due to unforeseen economic hardship with submission of sufficient documents to prove the hardship;
  3. H-4 Dependent spouse of H-1B under the circumstances of AC21 when
    • The I-140 has been pending for over one year after the 5th year of H-1B status;
    • The H-1B holder has an approved I-140 but the H-1B principal and H-4 dependent are not eligible for I-485 according to the visa bulletin
  4. J-2 Dependent spouse or minor child of J-1 Exchange Visitor/Scholars but the J-2 dependent’s wage cannot be the main support of the family;
  5. L-2 Dependent Spouse/Minor Child of L-1
  6. E-3D Dependent Spouse/Minor Child of E-3 main principal visa holder
  7. K-1 Fiance or Fiancee of a U.S. Citizen or dependent on a K-2 visa may file I-765 EAD application within 90 days of the date of entry; or
  8. Asylums, Asylum Applicants and refugees, or paroled as a refugee, a Temporary Protective Status (TPS) and DACA (Deferred Action) holders.

 

I-765 EAD Renewal

The Employment Authorization is usually issued with validity for a one-year or two-year period. You may start as early as 180 days prior to the expiration date of your existing EAD. You may not start the renewal prior to 180 days before the current EAD expiration date. The renewal of EAD may be done by filing Form I-765 or by paper mailing. 

We advise you to file your I-765 Renewal with documentation as early as possible. In the past, there was a 90-day rule for the USCIS to process I-765 applications or renewals. However, the 90-day rule is no longer applicable to I-765 processing anymore. The current processing time of I-765, depending on the service center, may be up to 12 months or longer. If you do not wish to have a gap in your job, it is better to start early. 

 

I-765 Automatic Renewal

Instead of the 90-day rule for I-765 processing, the USCIS allows automatic renewal or automatic extension for up to 180 days of the applicant’s existing I-765 for certain categories of applicants so long as the renewal application is submitted before the current I-765 expires. The basic rule of thumb is that if the basis of employment authorization (i.e. the applicant’s status in the U.S.) needs to be renewed, your employment authorization needs to be renewed too. Under this basic rule, those who are in refugee or refugee/asylee pending status, Permanent Residence application pending Status, TPS or VAWA status, are eligible for I-765 automatic renewal because they are granted status in the United States that do not require further renewal applications to maintain their status. 

For more detailed information about I-765 automatic renewal, please go to the USCIS website at here.

 

Is there anyway to expedite the EAD application processing time? 

Besides the I-765 automatic renewal, there are very limited situations where you may file an expedite request for your I-765 EAD application:

  1. Urgent humanitarian need where there is a medical emergency or an acute medical condition (as opposed to chronic medical conditions) that would endanger a person’s life or serious bodily harm;
  2. Compelling U.S. government interests (such as urgent cases for Department of Defense or DHS, or other public safety or national security interests);
  3. Clear USCIS error; or
  4. Severe financial loss to a U.S. company or a U.S. citizen, provided that the need for urgent action is not the result of the applicant’s failure to file the benefit request in a reasonable time frame, or respond to any requests in a reasonably timely manner.

Please note that for employment authorization applications, the severe financial loss reason could not be the stand alone reason without other compelling factors in order to request expedited treatment of the application. Also the claim of severe financial loss must be documented to establish the loss and that the applicant cannot withstand the temporary financial loss as a result of the normal processing time of the application 

For more detailed information about filing an expedited request with the USCIS application, please click here.

 

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