10/23/2008

The EAD applications surged tremendously in August 2008 reflecting the anniversary of FY 2007 Visa Bulletin, related EAD and AP filing surge in July and August 2007. The record also reflects that almost 50% of current total backlog of EAD in August 2008 were those which were received in one month in August 2008. This surge of new filing has obviously caused the processing delays of the USCIS for the EADs.

The delays include not only the renewal EAD cards but also issuance of interim EAD cards for those who have filed longer than 90 days. Under the circumstances, people should pay attention to the following advisories:

1) The current USCIS policy still does not allow filing of EAD renewal before 120 days of the current EAD expiration. The USCIS has been considering abandoning this policy because of the EAD backlogs, but it has not been formally adopted. Accordingly, people should not file it earlier than 120 days of the current EAD expiration.

2) It is current law and policy of the DHS that I-485 applicants are not allowed to work without a valid EAD. Status of "pending EAD" does not give employment authorization. Employment during the gap of EAD will constitute an unauthorized employment, resulting in various consequences.

3) The I-485 applicants with the expired EAD should immediately stop working after the date of expiration of current EAD card until the new EAD card is approved and issued.

4) The employer should immediately cease employment of such alien employees during the period of EAD gap. The Ombudsman's recommendation to the USCIS that it is critical and important not only for the alien employees but also for the employers.

5) The best policy is to apply for EAD early enough and if one fails to receive the EAD renewal timely before the current card expires, the alien applicant stops work until the card is issued. The unemployment during the period of gap will not affect the pending I-485 applications. Conservative employers and alien employees should not take chance.