Work authorization renewal problems
November 4, 2021
While most foreign workers in the U.S. are admitted to the United States pursuant to an employment visa (which is issued following a successful employment petition submitted by an employer to USCIS - the domestic immigration benefits arm of the Dept. of Homeland Security), there are a whole subset of workers that are granted the right to work in the United States by way of an application for an Employment Authorization Document (“EAD”) through USCIS. There are currently 56 categories of foreign nationals that are eligible to employ for an EAD – with categories ranging from the reasonably common (graduates of U.S. universities who are granted a 12-month period to gain work experience in the USA following graduation) to the more obscure “Spouse/dependent of Coordination Council for North American Affairs (E‑1)/ Taipei Economic and Cultural Representative Office (TECRO)”.
The process for obtaining an EAD process is inefficient – firstly an eligible foreign national is not allowed to work until their application is approved, and most categories require the applicant to file their application using a paper form which is mailed, together with supporting documents and the fee of $410 to one of two large processing facilities (each adjacent to the Phoenix and Dallas-Fort Worth airports). Traditionally (pre-pandemic), the application would be opened there within a week or two, the fee processed and the application scanned into USCIS’s system. The applicant could then track the progress of the application online using USCIS’s “my case” function. If all was in order, the EAD would eventually be mailed out from USCIS’s card production center within 3-5 months. EADs are generally issued for a set period of time that depends on the employee’s category. This date is generally a) 12 months, b) 24 months, or c) the date that the applicant’s existing immigration status expires.
In the context of business immigration, the most common type of EAD that we encounter are those issued to the spouses of E- and L- nonimmigrant visa holders. For these spouses, the validity of their EAD is tied to the validity of their spouse’s approved petition, so if their spouse is initially granted permission to work for their sponsoring employer for 2 years, and their spouse’s EAD takes 5 months to be issued, the card will only be valid for 19 months from the date of issue. An application to renew the card can only be filed 6 months before the card’s expiration date. Traditionally, this was sufficient time. Lately however this has not been the case, which has resulted in many spouses being left without work authorization, in many cases having to temporarily cease working. This happens for the following reasons:
1) Processing times can be longer than 6 months – EADs are processed by six USCIS service centers. Three of them have processing times in excess of 6 months for the spouses of E- and L- visa holders. This means that based on USCIS’s own published processing times, an applicant whose case is assigned to one of these service centers will experience a period where they are no longer work authorized, meaning they must either be furloughed, or terminated by their employer.
2) USCIS no longer issue receipts within a few weeks of the application being submitted. This means that an applicant has no idea whether USCIS a) received the application and that b) there was no issue with it that would cause it to be rejected. A common reason for rejection is payment – where an applicant fills in their credit card details or using a personal check – and then in the intervening 4+ months between the time the application is submitted and USCIS actually processes the payment – the card or bank account is compromised and the corresponding card/account number is cancelled. When this happens, USCIS will reject the application and send it back which means that the applicant has to start again from square one, having wasted 4+ months. Applicants who are aware of the problem can submit a cashier’s check, however many are not.
This uncertainty and the seeming silence of USCIS to address it severely impacts applicants who may experience income interruption for a period and may, in some cases, permanently lose their job. It’s frustrating when an applicant does everything “right” by applying to renew their document on the earliest possible date, only for the processing to extend pass the date of their employment authorization. This frustration is only exacerbated when USCIS then issues erroneous RFEs (Requests for Information) that further delay the application – for example by requesting documents that aren’t actually required (e.g. requesting the approved USCIS petition of the applicant’s spouse, when a vast majority of E-2 workers aren’t required to have an approved petition to work in the United States).
Streamlining/prioritizing work authorization applications when the country is in the midst of an historic labor shortage should be chief amongst USCIS’s priorities.
