Work Permit Renewal Rules for Foreign Workers are Changing

Do you have a work permit (EAD) that you’re planning to renew? You might benefit from a new rule that gives you temporary work authorization while your work permit renewal application (Form I-765) is pending. This is what you need to know about the new rule, which goes into effect on January 17, 2017:

Certain EAD renewal applicants will be able to work for 180 days after their EAD expires

Under the new rule, applicants in certain eligibility categories applying to renew an EAD can continue to work for up to 180 days while their renewal application is pending, as long as:

• They apply to renew before their current EAD expires AND
• They are applying in the same category that they previously applied under

The qualifying eligibility categories are:

1. Refugees and Asylees, including applicants with pending asylum applications;
2. Citizens of the Micronesia or Marshall Islands;
3. Applicants who have applied for or been granted withholding of deportation or removal;
4. TPS applicants;
5. Applicants with a pending green card application (Form I-485);
6. Applicants who have applied for suspension of deportation; and
7. Applicants who are VAWA principal beneficiaries or children of VAWA beneficiaries.

Note that applicants who want to benefit from this automatic extension might find that they have difficulty proving their work authorized status to an employer.  Take a look at some tips for proving work authorization under the new EAD rules for ideas on how to successfully overcome this challenge.

You will be eligible to apply to renew up to 6 months before the EAD expires

If you are not applying in one of the eligibility categories listed above, then you still benefit from a new provision that allows you to apply to renew your EAD 6 months before your status expires (instead of 120 days in advance under the current rule).

Applying as early as possible to renew your EAD is important because if you don’t qualify for the 180-day automatic extension, then you risk losing your ability to work if your EAD renewal application is not approved before your current EAD expires.

People on the following eligibility categories do NOT qualify for the 180-day automatic extension rule and therefore should plan to file their renewal EADs 6 months prior to their expiration to ensure that there is no gap in work authorization:

1. N-8 and N-9 visa holders
2. K-3 and K-4 visa holders
3. V visa holders
4. E-1, E-2, or E-3 “spouse” visa holders
5. L-2 “spouse” visa holders
6. U visa holders
7. F-1 Student
8. J-2 visa holders
9. T visa holders
10. H-4 “spouse” visa holders

Delays in filing, especially without filing I-539, Application to Extend/Change Nonimmigrant Status, can risk lapses in both work authorization and legal stay.

USCIS will no longer be obligated to process your EAD application within 90 days

Another reason to file to renew your EAD as early as possible is that under the new rule USCIS is no longer legally required to process your application within 90 days.

Although USCIS is currently obligated to meet this processing requirement, it frequently fails to do so. Removing the requirement is therefore something of a formality, but it is important to realize that processing times are constantly changing and the responsibility falls on you if USCIS fails to process your renewal before your current card expires. Your only line of defense is to file a complete and correct application as early as possible.

The full rule includes additional provisions, such as adding eligibility categories for E-3, H-1B, H-1B1, L-1 or O-1 visa holders who meet the following requirements:

1. They are the principal beneficiaries of an approved Form I-140 petition,
2. They don’t have an immigrant visa not authorized for issuance for their priority date, and
3. They can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion.

You can find full details on the new rule at www.federalregister.gov. USCIS has also published a press release that summarizes the changes.