EAD Backlog and Advisory for I-485 Waiters and Employers

Published Oct 4, 2008

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EAD Backlog and Advisory for I-485 Waiters and Employers

As the new EAD receipt volume in August 2008 reflects, the EAD applications surged tremendously in August 2008 reflecting the anniversary of FY 2007 Visa Bulletin fiasco related I-485/EAD/AP filing surge in July/August 2007. The record also reflects that almost 50% of current total backlog of EAD in August 2008 were those which were received in one month in August 2008. This surge of new filing has obviously caused the processing delays of the USCIS for the EADs. The delays include not only the renewal EAD cards but also issuance of Interim EAD cards for those who have filed longer than 90 days. Under the circumstances, people should pay attention to the following advisories:

File at least either 100 days or 119 days before the current EAD expires. The current USCIS policy still does not allow filing of EAD renewal before 120 days of the current EAD expiration. The agency has been considering abandoning this policy because of the EAD backlogs but it has not been formally adopted. Accordingly people should not file it earlier than 120 days of the current EAD expiration. What it means is that people may want to file it at least from 119 days to 100 days before their current EAD expires in order not to experience a crisis of EAD gap.

It is current law and policy of the DHS that I-485 waiters are now allowed to work "without a valid EAD." Status of "pending EAD" does not give employment authorization. Employment during the gap of EAD will constitute an unauthorized employment, resulting in various consequences. The consequences for the I-485 waiters includes: (1) Even though USICE is unable to detect all the violators and even though they appear to excertise some level of discretion in this situation, legally the ICE can enforce the law and arrest and commence the deportation proceeding. (3) With reference to the impact of the unauthorized employment during the gap on the pending I-485 application, 485 waiters should keep in mind two points. Firstly, 245(k) provision makes I-485 applicants still eligible for I-485 approval inasmuch as the following conditions are met: (a) Since last admission to the U.S. before filing of I-485 application (b) they should have accumulated an "aggregate" of less than 180 days © of unlawful stay and/or unauthorized employment, during the period either before or after filing of I-485 application. In calculating 180 days, they should aggregate both the days of unlawful stays and the days of unauthorized employment. Conseuqnently, even if the unauthorized employment has lasted less than 180 days, the alien can be ineligible for I-485 application approval if the total period of unlawful stay AND unauthorized employment add up to 180 days or longer. (3) For the three reasons, 485 waiters with the expired EAD should immediately stop working after the date of expiration of current EAD card until the new EAD card is approved and issued: Firstly, even though their I-485 application may not be affected under 245(k), ICE may still be able to enforce the law, should they opt to do it. Secondly, they may not be able to determine the exact period of unalwful stays and unauthorized employment in the U.S. since the last admission to the U.S. as they lack the knowledge of complicated rules and laws in the areas. Thirdly, assuming that they are qualified for 245(k), the employer will still be subject to the sanctions and punishments for hiring employment unauthorized alien, not to mention violation of I-9 compliance. Such employer is harmed in two ways. One is sanction and punishment including monetary fines and debarment. More importantly, the employer can be subject to the "audit" which will lead such employer to literally a hell. For the reasons, the employer should immediately cease employment of such alien employees during the period of EAD gap. The Ombudsman's recommondation to the USCIS which was posted on our site yesterday is in this regard considered critical and important not only for the alien employees but also for the employers.

All in all, best policy is to apply for EAD early enough and if one fails to receive the EAD renewal timely before the current card expires, he/she stops work until the card is issued. The unemployment during the period of gap will not affect the pending I-485 applications. Conservative employers and alien employees should not take chance. Liberal employers, alien employees, and their representatives can take whatever course of action they want "at their own risk."

*Source: http://www.immigration-law.com/