John Valdez’s Legal Blog

This week, Homeland Security Secretary Michael Chertoff announced that the government will extend the validity of the employment authorization document (”EAD”) from the current maximum of 12 months to 24 months for adjustment of status applicants if their applications are expected to be pending for more than a year.  Since there are many applicants waiting for adjustment of status for more than a year, the Chertoff announcement is good news. 

While reading the remarks by Secretary Chertoff, I remembered many of the inquires I’ve had about obtaining an EAD.  Indeed, many people come to visit me with the same request: “I would like for you to file for my work authorization card.”  Because fulfilling this request is seldom simple, I thought I would write this blog to help explain the process.   

The EAD is a plastic card that can be used to verify someone’s right to work in the United States.  There are other documents that show foreign nationals are eligible to work, including the green card, but the EAD is one of the most common work eligibility documents.  Many people believe that one can simply fill out a form and apply for issuance of this card.  Unfortunately it is not that simple to gain work authorization. 

In order to be eligible for an EAD, an applicant must show that he or she is in a current status that permits issuance of an EAD.  Thus, most people who entered the U.S. without inspection or remained in the U.S. beyond their period of authorized stay are ineligible for an EAD.  There are exceptions to this general rule.  For example, asylum applicants, even if they entered the U.S. without inspection, are eligible for an EAD.  Also, foreign nationals who file for adjustment of status, regardless of prior illegal status, are eligible for an EAD.  For a list of categories of immigrants eligible to work in the U.S., please see 8 C.F.R. section 274a.12. 

There are many ways to qualify for an EAD.  The EAD form instructions list more than 40 immigration categories that can serve as a basis for obtaining an EAD.   This list does not include a very large number of immigration categories, including visitors for pleasure or work (the B-1 and B-2 visa cateogeries), dependents of H-1B workers (the H-4 visa category), or beneficiaries of immigrant visa petitions (such as I-130, I-140, I-360, and I-526 petitions).

Therefore, when people tell me they want me to apply for their EAD, what they usually need is a strategy to apply for an immigration status that either permits work without an EAD or will serve as a basis to request an EAD.   Sometimes the strategy must be long-range.  For example, if a person is out of status, I look to see if there is a way to present a case where his or her status violation will be forgiven.  If there is a forgiveness provision in the law, I might not be able to immediately apply for my client’s EAD, but may be able to take steps that will eventually lead to an EAD, like  submitting a labor certification or I-130 petition that will eventually permit my client to apply for adjustment of status.  As I mentioned earlier, adjustment of status applicants may apply for an EAD. 

Gaining work authorization usually involves much more than completing a form; it requires careful planning and execution.  The immigration attorneys at Smith & Garg are highly trained in this specialized area of law.