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Continued Delays in Employment Authorization Document USCIS Processing Times

The United States Citizenship and Immigration Service (USCIS) processing times for Employment Authorization Document (EAD) applications continue to increase despite already being at record highs. EADs are relied upon by many categories of foreign nationals to allow them to work lawfully in the United States. The processing times vary by USCIS Service Center, in addition to the category in which the applicant is eligible for employment authorization. The largest percentage of EAD applicants are in a humanitarian-based status, which may designate specific conditions associated with an initial EAD application and its renewal.

Other EAD applicants include the spouses of certain non-immigrant employee visa holders, such as those in dependent L-2, E-1, E-2, and E-3 status, and some H-4 dependents, in addition to those with pending adjustment of status applications. While the average processing time was at approximately 3 months in early 2019 and increased to 4-5 months later in the year, it is now up to 7-8 months at some USCIS Service Centers. The delays are escalating most rapidly for EAD applications for dependent status holders, such as L-2, mentioned above.

The prolonged processing times for EADs are burdensome on both applicants and on U.S. businesses. It is most disruptive for applicants seeking to renew their employment authorization when there is a gap between when their current authorization expires and when they receive their new EADs, since they are not permitted to work in the interim, unless covered by an automatic extension. Certain categories of EAD applicants with a renewal pending may benefit from an automatic 180-day extension of work authorization from the time that their current EAD expires. These categories can be found on USCIS’ website. L-2 and other status-dependent applicants are not eligible for this automatic extension.

Given the increasing processing times, it hard to know how far in advance to file for the renewal of an EAD. Generally, you cannot file to renew the EAD more than six months before expiration. There are usually other controlling factors as well, such as status renewal, that may be prohibitive of filing early enough to guarantee a new EAD before the expiration of the current one.

While it is possible to request that USCIS expedite the processing of an EAD, it may be difficult to achieve. USCIS maintains sole discretion over such requests and considers each on a case-by-case basis. The relevant criteria according to the USCIS Policy Manual, Volume 1, Part A, Public Services, Chapter 5, Requests to Expedite Applications or Petitions, effective May 10, 2019, are the following:

  • Severe financial loss to a company* or person**, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure: (1) to file the benefit request or the request to expedite in a reasonable time frame; or (2) to respond to any requests for additional evidence in a reasonably timely manner;

  • Urgent humanitarian reasons;

  • Compelling U.S. government interests (such as urgent cases for the Department of Defense or DHS, or other public safety or national security interests); or

  • Clear USCIS error.

* Severe financial loss to a company means the company would be at risk of failing.

** The need to obtain employment authorization, standing alone, without evidence of other compelling factors, does not warrant expedited treatment.

In response to inquiries and complaints about the extended processing times, USCIS cites a lack of resources and increased caseload. EAD applications are among many other types of applications and petitions that are experiencing delayed processing by USCIS.

We recommend that clients file EAD applications as early as possible and anticipate delays when planning.

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About this Author

Associate

Sarah E. Amendola is an associate in the Immigration & Compliance Practice in Greenberg Traurig’s Northern Virginia office. She gathers evidence and drafts support letters and petitions for immigrant/non-immigrant visa cases including L-1, H-1B, H-3, E-1, E-2, B-1, O-1, P-1, EB-1, and EB-5 visas. She also drafts motions and briefs for the Department of Labor and the Department of Homeland Security involving immigration matters, including responses to requests for evidence (RFEs).

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