At the end of last year, the U.S. Department of Homeland Security published a broad proposed rule covering a number of measures designed to retain high-skilled immigrant and non-immigrant workers.
Amongst the detail was a proposal to eliminate the 90-day adjudication/interim employment authorization document (EAD) rule. Many employment-based immigrant and non-immigrant applicants, family-based applicants, foreign students, asylum applicants, and individuals in removal proceedings rely on the EAD for work authorization in the U.S.
Currently, USCIS must either adjudicate an EAD application within 90 days of receipt of the application or issue an interim EAD valid for up to 240 days for certain applicants. While the proposal provides for automatic extensions for applicants applying to renew their previously granted EADs, and Homeland Security has indicated their intention to continue to grant EADs within a 90-day period, the proposed rule would create uncertainty over adjudication timing, particularly given increasing USCIS backlogs.
This proposal could therefore adversely affect thousands of foreign national workers, potentially causing hardship for EAD applicants and their families from not being able to work, loss of job opportunities, and interruption or termination of their employment. There could also be fallout for employers with affected EAD-dependent workers needing to fill positions left by temporarily unauthorized employees. In the context of adjustment of status (green card) applications, “combo” Advance Parole-EAD cards may also be impacted.
Comments were due to Homeland Security in late February and almost 28,000 comments were received, including our firm advocating against this proposal. It is not clear when the final rule will be promulgated, but we will continue to monitor developments.