The adjudication of Employment Authorization Documents (EADs) has been increasingly delayed, causing much concern and uncertainty on the part of applicants. United States Citizenship and Immigration Services (USCIS) has confirmed that almost one quarter of all EAD cases have been pending for over 180 days. In addition, spouses of H-1B holders who have qualified under the H-4 EAD program are concerned that they may lose their employment authorization over the coming months, as a result of the US Department of Homeland Security (DHS) announcement to terminate the H-4 EAD program.
In the past, applicants for Employment Authorization Documents (EADs) were often receiving their EADs within 90 days of filing. When their cases were pending for more than 75 days, they could make an inquiry with USCIS which would generally result in EAD approval within 90 days. In recent times, there have been delays in adjudications, including increased delays when a Request for Evidence (RFE) has been issued. USCIS has confirmed that, although it has a 90-day processing goal for EADs, the 90 day clock restarts once a response to the RFE is received. In the most recent report, processing times have been reported as follows:
Days pending Percentage of pending EAD cases
USCIS has confirmed that it is aware of the delays and has stated that it is adjusting resources and looking for ways to make more efficient use of existing resources. USCIS stated that applicants can still submit inquiries when their cases have been pending for more than 75 days, that there will be a new website available that will present processing times in a new design, and that there may be upcoming changes to the EAD intake process.
In February 2015, DHS authorized H-4 dependents, whose primary H-1B spouses obtained I-140 approvals, to apply for employment authorization benefits. The rule allowed for eligible H-4 dependent spouses to apply for an EAD that would allow them to work. Prior to this, H-4 dependent spouses from visa retrogressed countries who did not have visa numbers available to file their adjustment of status/immigrant visa applications were not legally authorized to seek employment while in H-4 status.
Since its inception, this rule has been subject to numerous legal challenges. In December 2017, DHS announced that it planned to terminate the H-4 EAD program, and would be issuing a rescission notice of proposed rulemaking (NPRM) in February 2018. On February 28, 2018 through a DHS filing in a pending US Court of Appeals case, DHS announced that it is anticipated that the publication of the proposed rule will occur in June 2018. Once the rule is published, however, it will still take a few months before the rule is finalized.
We recommend that applicants file for EAD extensions as soon as legally possible, and ensure that their applications are submitted in full, in order to avoid Requests for Evidence in their individual cases. For cases pending more than 75 days, we recommend that inquiries be made, since such inquiries have resulted in the issuance of EADs. We recommend those currently employed pursuant to an H-4 EAD seek alternatives for obtaining work authorization, including possibly entering into this year’s H-1B cap, if eligible. In addition, once the rule has been published for comment, which is anticipated to occur in June 2018, we recommend that individuals and employers provide comments during the public comment period attesting to the importance of maintaining the H-4 EAD program.
PwC Law continues to monitor these matters and will be sure to update you as changes occur.
For more information on EADs, the H-4 EAD program, or any other immigration matters, please contact a member of our team at PwC Law LLP.