This section provides clarity to prospective employers about EAD status which is part of a pending work-based green card application. The term EAD stands for Employment Authorization Document. EADs provide U.S. work authorization and can be obtained in a variety of immigration situations. For business-based green cards, an EAD is issued while awaiting the processing of a bona fide green card application (i.e. individuals who fit under the employment-based categories like EAD during EB-1 or EB-2 NIW, etc.) The green card that an employee ultimately obtains will also provide work authorization, but through its pendency, the EAD is the interim document which specifically gives the right to work. The physical evidence of an EAD is a small plastic photo ID-type card called an I-766 EAD card; or commonly called a Combo Card (as it often concurrently grants interim travel called Advance Parole). For purposes of Employer Work Authorization (on Form I-9), the EAD card is offered by foreign national to prove his right to work. This means that when an Employer completes the Form I-9 for an Employee and asks for evidence of the right to work on US soil, the employee may offer Item #4 in Column A described as “Employment Authorization Document that contains a photograph (Form I-766).” The EAD is obtained by filing a Form I-765 concurrently and with (or after) the I-485 Adjustment of Status Application for US Lawful Permanent Residence, otherwise known as the green card application. Processing times to receive an EAD card vary from week to week and month to month because of the constantly fluctuating workload of US immigration officers. Processing times are quoted to be about 90 days. The US CIS website has this FAQ: “When I file Form I-765, how long will it take to receive a decision?” and responds with “You should receive a decision within 90 days (30 days for asylum applicants) from the receipt date on your Form I-765.” https://my.uscis.gov/helpcenter/article/when-i-file-form-i-765-how-long-will-it-take-to-receive-a-decision Furthermore, US CIS is given the following incentive to determine cases within this time period – because if the case has been pending 75 days or more, the applicant may take action to flag the case for expedited processing. https://my.uscis.gov/helpcenter/article/when-am-i-eligible-for-an-interim-ead.
When will a person receive the EAD? No one can determine the date of EAD issuance with accuracy. Our office advises clients asked about work authorization to state their work authorization status as “EAD” to prospective employers because the time until EAD issuance generally coincides with the time it takes to complete final human resources processing.
What can be done in the meantime? In the meantime, employers are advised by our office under our HR/Corporate practice to follow these procedures for EAD people who have not yet received the physical document: - Make a job offer if you like. But keep it contingent upon ultimate approval of US work authorization.
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- Do not make the employee an active employee, i.e., do not activate payroll before an EAD (work authorization proof) is furnished.
- If it is normal (or can be considered normal) for the company or job situation, allow the employee to engage in modest orientation, meetings or non-compensatory team introduction activities, but with no expectation that the employee would ever be remunerated for participating in such meetings if and when actually put on payroll.
This advice is case-specific depending on the style of company you run, your company’s immigration history if any, and the job position to be filled by the prospective employee -- and should be discussed with immigration counsel. |