28 Sep 2023

United States

USCIS Increases the Validity Period of Certain Employment Authorization Documents (EADs) to Five Years

U.S. Citizenship and Immigration Services (USCIS) has announced that it is revising its Policy Manual to increase the maximum available validity period of initial and renewal Employment Authorization Documents (EADs) from one or two years to five years. This increase will take effect immediately and will apply to all I-765 EAD applications in eligible categories that were filed with the USCIS on or after September 27, 2023, or were pending on that date.

Applicants for adjustment of status who have filed a Form I-485 application based on an I-140 or I-130 immigrant petition and have applied for an EAD in connection with that application should now receive an EAD that is valid for five years. Such EADs were previously valid for two years. It should be noted that the validity of Advance Parole (AP) documents, which are often also filed by adjustment of status applicants and can be issued in a combination EAD/AP document, has not been increased to five years.

Applicants for asylum or withholding of removal and suspension of deportation or cancellation of removal are also eligible for five-year EADs. Refugees, persons paroled as refugees, persons granted asylum, and recipients of withholding of removal may also receive five-year EADs.

It should be noted that EADs issued to F-1 students in connection with a grant of Optional Practical Training (OPT) and to spouses of H-1B nonimmigrants holding H-4 status are not eligible for the new five-year validity period.

The USCIS indicates that, if a foreign national’s employment authorization is dependent on his or her underlying status, a failure to maintain that status will result in the employment authorization being terminated before the expiration date noted on the EAD.

The USCIS’ revision of the Policy Manual also describes the various categories of foreign nationals who are considered employment authorized incident to status (i.e., those who do not need to obtain an EAD to accept employment) and explains that such foreign nationals may present a Form I-94, Arrival/Departure Record, to an employer as an acceptable document showing employment authorization under List C for Form I-9, Employment Eligibility Verification purposes. In particular, the USCIS notes that certain Afghan and Ukrainian parolees are employment authorized incident to parole and do not need an EAD. The USCIS’ Policy Manual also states that dependent spouses of E-1, E-2, E-3 and L-1 principals are authorized to work incident to status for the duration of the principal’s status.

The USCIS’ purpose in increasing the maximum EAD validity period to five years is to lighten the agency’s workload by reducing the number of renewal EAD applications it receives.  Hopefully, this will in turn enable USCIS to reduce its processing times and backlogs for these and other applications.

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