By Amy L. Peck with Jackson Lewis P.C.
USCIS is increasing the maximum validity period to five years for initial and renewal Employment Authorization Documents (EADs) for certain categories of applicants, including noncitizens with pending adjustment of status applications. This is good news for employers and employees with long pending adjustments. The new policy applies to applicants with Form I-765 Applications for Employment Authorization that are pending or filed on or after September 27, 2023.
USCIS is also increasing EAD validity periods for:
- Refugees (whether admitted as refugees or parolees)
- Individuals granted asylum
- Recipients of withholding of removal
- Individuals seeking suspension of deportation or cancellation of removal
USCIS has noted that it decided to increase the validity periods based on a consideration of the validity period of the underlying immigration status or circumstance, the need to reevaluate noncitizens’ eligibility for employment authorization, and the anticipated adjudication timeframes for pending immigration benefits. While this will mean there will be some reduction in fees collected by USCIS, the new policy will also help USCIS to decrease its application backlogs. Despite the increase in maximum validity periods, individuals must maintain their underlying eligibility. If the underlying status changes, the EAD would no longer be valid.
The new policy also clarifies that the categories of individuals who have employment authorization incident to status may present their Form I-94 Arrival/Departure record as a List C document when completing I-9 Employment Authorization Verification forms. This includes:
- Spouses of U.S. citizens or children of such spouses (K-3 or K-4 nonimmigrants);
- Victims of severe forms of trafficking in persons (T-1 nonimmigrants);
- Spouses of principal E nonimmigrants;
- Spouses of principal L-1 nonimmigrants; and
- Victims of qualifying criminal activity (U-1 nonimmigrants) and certain qualifying family members (U-2, U-3, U-4, and U-5 nonimmigrants).
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