Immigration Law Insights

In an effort to address the ongoing Employment Authorization Document (more commonly known as an “EAD”) processing backlog, USCIS recently announced it would lengthen the maximum validity period for certain EAD categories to five years. The change is welcome news to many employers and foreign nationals who may have experienced gaps in work authorization due to processing delays over the last several years.

One of the EAD categories affected by the change is pending Adjustment of Status Application beneficiaries. Adjustment of Status is the final step in the Green Card process for many employment-based applicants, but it can take several years to process. USCIS’ website indicates that current Adjustment of Status Application processing times at its major processing centers range from 29 to 36 months.

While an Adjustment of Status Application is pending, the beneficiary can file for an EAD, which will permit the individual to work in the United States without an underlying nonimmigrant work visa status (for example, H-1B, L-1, or E-2). Previously, EADs for Adjustment of Status applicants were only valid for two years, meaning extensions were required regularly. The new rule should decrease the need for extension applications, which USCIS hopes will decrease overall processing times.

The new policy will apply to any eligible EAD applications that were pending on or filed on or after September 27, 2023. Other EAD categories that will be eligible for five-year EADs include asylees, refugees, noncitizens granted withholding of removal, noncitizens with pending applications for asylum or withholding of removal, and noncitizens seeking suspension of deportation or cancellation of removal. Importantly, H-4 spouses eligible for work authorization are not eligible for the extended EAD validity period.

While the extended validity of EADs for Adjustment of Status applicants may tempt employers to allow an underlying visa status to expire, there are risks. Individuals who allow their underlying nonimmigrant status to expire and subsequently have an Adjustment of Status Application denied run the risk of accruing unlawful presence, which can have significant long-term immigration consequences. Maintaining a valid underlying nonimmigrant status can also avoid work authorization lapses in case of a Green Card denial.

The Burr and Forman immigration team regularly helps clients navigate complex work authorization issues. If your business needs advice on issues related to employment-based immigration, contact Melissa Azallion Kenny, Anna Scully, or Jon Eggert on the Burr and Forman immigration team.