The USCIS issued a press release last month, indicating that it would begin issuing two-year Employment Authorization Documents (EADs) to people with pending I-485 Applications for Adjustment of Status (AOS). Almost immediately, calls began flooding in to the law office, with current and prospective clients insisting that they be included in this new “program.” Despite the obvious desirability of obtaining an EAD valid for two years to avoid paying for annual extensions and the anxiety that comes with waiting for the new EAD with one’s employment status weighing in the balance, review of the USCIS’ “program” exposes many limitations.
The Federal Regulations written to implement US immigration law generally allow people with pending applications for US Immigration benefits, such as AOS, asylum and even Late Amnesty, to obtain EADs while they await the results of their applications in the US. Logically, people who are permitted to remain in the US while awaiting a decision on pending applications must be permitted to work to support themselves and their families for what may amount to a several-year process. With the USCIS’ current filing fee for an EAD or extension at $340.00, the announcement that EADs would be issued with two year validity periods was met with considerable interest.
Many readers may wonder why it takes more than one year for the USCIS to render decisions on pending AOS applications in the first place. In order to understand the answer to this question, one must become familiar with the vagaries of US Immigration law and its many processes. In order for a person to be eligible for a green card through AOS, there must be a “visa number” available. Visa numbers are doled out according to the US Department of State’s Preference Allocation system, with limited numbers of visas available for most types of petitions, for example “employment-based skilled” category or “family-based first-preference.” Only “immediate relatives,” i.e. spouses, children and parents of US Citizens, have unlimited visas available to them, such that there is no waiting period before an application for adjustment of status may be filed.
For most people, there may be a significant waiting period from the time a familial relative or employer files a petition until they may file an application for adjustment of status and the precious EAD. One the application is filed, however, USCIS delays in processing the application itself or, worse, sudden visa availability “retrogression” due to corrections in the preference allocation system can account for lengthy delays in the adjustment of status process, requiring applicants to extend their EADs multiple times before a final decision will be made.
So who may benefit from the new two-year EAD program? The answer is simply not many people. USCIS will only allow those AOS applicants whose cases cannot be completed because visas are not available to obtain a two-year EAD. Since a person can only file AOS when a visa number is available, this means that only people whose priority dates have retrogressed, i.e. the cut-off date for visa availability has moved backward since the date of filing for AOS, may obtain a two-year EAD. USCIS will not issue a two-year initial EAD on the filing of AOS, even though recent months have seen massive retrogression in both the family and employment-based preference categories.
USCIS has not yet developed or announced any bright-line rule for who would be eligible for a two-year EAD, even if their priority dates have retrogressed, indicating instead that USCIS will decide whether to issue a two year EAD “based on the most recent State Department Visa Bulletin.” Of course, without a crystal ball, reference to the Visa Bulletin is simply an inadequate method to forecast how long an applicant will have to wait before a visa becomes available, much less how long USCIS will take to adjudicate the AOS once the visa number is available. In the meantime, applicants can only do their best to make sure that they file for EAD extensions at least 90 days prior to the expiration of the previous card, to avoid problems with their employment status.