Good News! Rights To U.S. Employment Authorization Documents To Be Expanded

Recently the U.S. Citizenship and Immigration Services (USCIS) published an updated policy to change the maximum validity periods for new employment authorization documents (EADs) for certain applicants and to provide general guidance on adjudicating such applications.

New and Renewed EADs Valid for Two Years – Who Qualifies?  

USCIS will now generally grant new and renewed EADs validity for two years for applicants who have been admitted as a refugees, been granted asylum, been granted withholding of deportation or removal, and so-called VAWA self-petitioners.

Moreover, USCIS will generally grant new and renewed EADs up to the end of the parole or deferred action period to applicants who have been paroled into the United States for urgent humanitarian reasons or because they bring a significant public benefit to the country and to those who have been granted deferred action in non-DACA cases.

The USCIS policy guidance states the new policy is effective immediately. Therefore, new and renewed EADs issued for the impacted categories henceforth will reflect the updated validity periods. However, EADs issued before February 7th, 2022, are not affected. In those cases, the USCIS will continue to issue replacement EADs with the same validity date as in the original EAD.

Obstacles Facing EAD Applicants

This policy update to increase the maximum validity period that may be provided on EADs for these categories will help to prevent gaps in employment authorization and documentation. This should ease processing backlogs by reducing the frequency and number of times applicants are required to renew their EADs.

The USCIS believes that this decision to increase the maximum validity period for only certain impacted categories prevents opening the floodgates for other applicants who are not in the same deserving positions. Although this policy update is good news for applicants affected, the policy changes are limited in scope and do not address the large number of backlogged applicants currently awaiting approval of their underlying status extensions. For this reason, some applicants and lawyers have criticized the policy as being arbitrary and unsatisfactory. They argue that such arbitrary distinctions between categories of applicants should be removed, thereby easing processing backlogs for all applicants who are impacted by the gaps. They further argue that there is no reason to prevent all applicants from having their EADs renewed in this way so that nobody is subjected to such arbitrary time constraints.

Nonetheless and until further expansions take place, this policy update to increase the maximum validity period for two years to applicants in the impacted categories is a step in the right direction.

Major Changes to EAD Policies for L-2, H-4, and E Dependent Classifications

Meanwhile, a recent settlement between the Department of Homeland Security (DHS) and the American Immigration Lawyers Associations (AILA) has resulted in two major changes in how USCIS treats dependent spouse employment authorization documents for certain categories.

First, L-2 and E-1 and E-2 dependent spouse holders will henceforward be granted automatic employment authorization incident to their status. United States Customs and Border Protection (CBP) has been instructed to annotate the I-94 forms for such applicants to indicate the individual is an L-2 or E-1 or E-2 spouse, and allow such I-94 forms to be used for I-9 verification. This is a great change because it means these dependent spouse visa holders no longer need to apply for an EAD after entering the United States easing the workload both for the dependants and the USCIS.

Secondly, H-4 holders will be granted automatic renewals of EADs for applicants that already have valid H-4 status but expired EAD cards. This means that applicants who have so far timely filed their EAD renewal applications and now continue to hold H-4 status beyond the expiration date of their EAD will qualify for this automatic extension.

Ultimately, all these policy updates for EADs are welcomed in U.S. immigration circles at this time. Hopefully they will help to reduce the burden of those working in the USCIS as well as the applicants concerned. Bravo to those who made these changes possible.