Recently, USCIS has been approving Employment Authorization documents (EADs) without approving advance parole travel documents (APs) at the same time even though both applications were filed together.
For the past ten or so years, USCIS has normally issued EAD/AP cards, or combo cards, when applicants applied for employment authorization and advance parole at the same time. Essentially, the card looks identical to a normal EAD card except that is also says “Serves as I-512 Advance Parole” at the bottom. Only in rare, unusual cases was a combo card not issued when the applicant applied both together. However, we are now seeing an increasing number of separate approvals resulting in only EAD cards being issued.
Why is this happening? Is this an error? What is USCIS up to? And how does this impact my adjustment?
The EAD/AP Combo Card
Adjustment of status applicants can apply for an EAD allowing them to work for any employer and an AP allowing them to travel internationally while the adjustment of status is pending without abandoning that application.
USCIS began issuing the convenient EAD/AP combo cards to adjustment of status applicants so they would not need to carry around two separate documents.
However, within the last few years, particularly after work authorization was permitted for some H-4 visa holders, employment authorization processing times have become increasingly longer. Such delays have only been exasperated due to the pandemic. These processing delays have caused prolonged lapses in some pending adjustment of status applicants’ work authorization and ability to travel internationally.
On February 24, 2022, USCIS said they are issuing separate EADs and APs intentionally. USCIS is now prioritizing approving EADs separately so that they can work their way through the EAD backlogs. Their hope is that this will significantly decrease the processing times for EAD cards.
USCIS has prioritized approving EAD cards on their own to prevent applicants from experiencing lapses in their employment authorization. While that is nice to hear, it is little consolation for those waiting for AP.
The purpose of Advance Parole for adjustment of status applicants is to allow them to exit the U.S. without abandoning their green card application while USCIS processes the case. For those on H-1B or L-1, or their dependents, they can still travel without approved AP. Those options, however, are not so attractive when considering the backlogs at the consulate and general delays when going for visa stamping. Also, if the applicant has an existing, valid AP, this can be used for travel during its validity without abandoning the AP renewal application.
Presumably, USCIS is prioritizing EADs to make sure adjustment applicants keep working in the U.S. and benefiting the U.S. economy. The lack of prioritization for AP might then indicate that USCIS cares much less whether the adjustment-applicant has the ability to travel internationally – and perhaps an unfair emphasize on many adjustment applicants’ potential ability to travel using H-1B or L-1.
It could also be due to the barrage of litigation faced by USCIS over the last several years due to its extreme processing delays.
Class-Action Lawsuit Concerning EADs
In a settlement made on November 12, 2021, USCIS agreed to policy changes concerning the employment authorization spouses of nonimmigrant visa holders. Essentially, dependent spouses of E and L visa holders have employment authorization automatically, incident to their status as a spouse of an E or L visa holder. H-4 spouses must apply for the EAD card, but are eligible for an automatic extension, as are E and L spouses.
To qualify for the automatic extension, you must have:
- Filed an application to renew your EAD,
- The renewal is based on the same category as your current EAD,
- You filed the application before your EAD expired, AND
- You have an unexpired I-94.
For E and L spouses, while work authorization is technically now incident to your status, that is likely not true just yet. USCIS and Customs and Border Protection (CBP) are updating I-94s to reflect the status of a spouse of an E or L visa holder. If you do not currently have an I-94 that reflects that status, then you can not use your I-94 for work authorization and will still need to apply for an EAD.
In summary, USCIS has often issued combo cards in the past, however, they are not required to. USCIS stated that they are approving EADs separately from APs to address the backlog EADs and long processing times. These separate approvals have sped up EAD approvals so far, based on anecdotal evidence.
So, when do I get my AP and how do I use it?
With AP not being issued as a notation on the EAD card, USCIS will now issue a Form I-797 approving the application. This means that an applicant must carry this piece of paper as proof of AP approval, instead of the convenient combo card.
On a positive note, however, processing times do seem to be approving – even when AP is issued later. The EADs now come within just a few months in many cases and the Aps are issued within just a few weeks after. We do, however, still have some applicants waiting more than 2 years for the initial applications to be processed – so there is still little optimism at this time.
Option to Expedite AP application
If the applicant has urgent travel plans, such as a death or severe illness in the family, s/he may be able to expedite that application. This can be done either by requesting expediting processing of a pending application or by requesting an emergency advance parole appointment at your local field office.
Adjustment of Status Implications
If you received an EAD but not your AP, don’t fret. Or if you received your EAD but no one else in your family received theirs, don’t worry. Unfortunately, this is all just part of USCIS’ plan to dig itself out of the processing delays that have worsened over the years. Processing of the EAD and AP applications has absolutely no impact on your pending adjustment of status. If you intend to travel without AP approval, though, please check with an attorney first.
Contact Shihab Burke, LLC, Attorneys At Law Today to Discuss Your Immigration Needs
If you have any questions or concerns about your employment authorization or would like to apply for a new EAD/AP card, our experienced immigration attorneys can help!
Our firm has offices located in Columbus and Dublin, Ohio, and Michigan, but we provide legal representation to clients nationwide. To speak with an Ohio immigration lawyer, contact Shihab Burke, LLC, Attorneys At Law today by calling (866) 665-0001, emailing [email protected] or by completing an online form.