Immigration Update: AOS Applicants to Experience Delays in Issuance of EAD & Advance Parole Cards

If an individual is currently residing in the U.S. and qualifies for permanent resident status, a green card may be obtained without leaving the country. This process is called Adjustment of Status (AOS). Part of the AOS application process involves applying for an Employment Authorization Document (EAD or work permit) and a travel permit (Advance Parole or AP). These documents enable the applicant to work in the U.S. and travel abroad while their AOS application is pending. If an individual departs the U.S. prior to issuance of an EAD/Advance Parole document, their AOS application is considered abandoned and will be denied.

Delay of EAD/AP Cards

Historically, USCIS was required to adjudicate EAD applications within 90 days of receipt. Very recently, however, this government requirement was rescinded. As a result, AOS applicants are now experiencing significant delays in the issuance of these EAD/AP cards. Within the last two weeks, current trends and industry reports are indicating that these cards will now take between five to seven months for receipt.

What This Means for AOS Applicants

This is hugely problematic, as delays with EAD applications may impact an applicant’s continued ability to work in the U.S. and travel abroad. Individuals with underlying nonimmigrant status and their dependent spouses may experience a gap in authorized employment as a result of their status expiring. Applicants may also find themselves grounded in the U.S. for an extended period of time as a result of increased processing times for AP applications. To make matters worse, USCIS is now denying AP benefits if the applicant travels internationally, even if they have a currently valid AP card. International travelers with pending AOS applications need to beware of these procedural changes and carefully plan travel outside the U.S. to avoid processing delays or denials.

How to Overcome These Obstacles

In light of these issues and growing concerns surrounding future AOS applications, we provide a few tips for addressing these new challenges:

• Maintain and renew underlying nonimmigrant status. When possible, individuals should maintain underlying employment-based nonimmigrant status for the duration that an Adjustment application is pending. This enables the applicant to continue working in the U.S. and is particularly important for “duel intent” nonimmigrants categories (L-1, H-1B, O-1). With that in mind, renewal and extension applications should be filed six (6) months before underlying nonimmigrant status expires;
• Present Form I-797 and visa at port-of-entry. If you are in a status that allows for international travel while your adjustment of status application is pending (L-1 or H-1B), AOS applicants should present Form I-797 Approval Notice + visa (if the latter is applicable) for entry to the United States. You should not present an issued EAD/AP card for entry unless specifically requested by CBP at the time of entry or directed by your attorney;
• Plan international travel carefully. Individuals with pending Adjustment applications who have confirmed or prospective international travel plans should contact their attorney at Berardi Immigration Law to understand how the government’s delayed processing times may impact upcoming international travel and pending AOS application; and
• Update EAD cards for spouses. Individuals with spouses who rely on an EAD for authorized work in the U.S. should be aware of the EAD card’s existing expiration date and plan to file a renewal and/or extension application six (6) months before the EAD expires. This will help to avoid a gap in employment.

If you have questions on this new immigration trend or have questions on applying for adjustment of status, please call our office to schedule a consultation with one of our attorneys today!