In order to work in the United States, all workers – citizens or not – must prove their eligibility. For U.S. citizens this proof comes in the form of their U.S. driver’s license, birth certificate and/or passport. You don’t have to be a citizen, however, to be authorized to work in the United States; some immigrants and nonimmigrants are eligible to obtain a work document, formally called an Employment Authorization Document (EAD).
An EAD is a laminated card that contains basic information about the worker, including a photo, and information about the workers’ immigration status. The EAD can be submitted to an employer as proof of eligibility. This article provides a summary of who is eligible to apply for an EAD and the application and renewal process.
As with many immigration matters, there’s a lot to know and how the process looks for a given individual will depend on that person’s unique situation and circumstances. Thus, it can be useful to seek the help of an immigration attorney – who can explain the process in the context of your situation – to help you successfully complete and submit your application.
Emilie Pla is an immigration attorney in Robinson & Henry, P.C.’s Denver office. Emilie is bilingual (English and Spanish) and represents clients in immigration matters from obtaining visas to avoiding deportation. Contact us to request a free consultation with Emilie.
Who’s eligible for a U.S. work permit?
Before you apply for an EAD, you should confirm that you meet the eligibility requirements and that you have the appropriate proof of your eligibility. U.S. citizens and green card holders (or Lawful Permanent Residents) do not need an EAD to work in the United States. And it’s important to note that an EAD or work permit is not the same as a work visa; those who come to the United States on a work visa, like an H-1B or an E-3 visa, do not need to also apply for an EAD.
U.S. Citizenship and Immigration Services (USCIS) breaks down eligibility into two groups:
1. Those who are authorized to work in the United States because of their immigration status and need proof of that authorization (you will need that proof in order to start work). This includes, for example, asylees, refugees and U visa holders.
2. Those who are not yet authorized to work and need to apply for permission. According to USCIS, examples of those who fall under this category include:
- Those who have a pending Form I-485, Application to Register Permanent Residence or Adjust Status.
- Those who have a pending Form I-589, Application for Asylum and for Withholding of Removal.
- Those who have a nonimmigrant status that allows you to be in the United States but does not allow you to work in the United States without first seeking permission from USCIS (such as an F-1 or M-1 student).
K-1 fiance visa holders, people with a pending application for adjustment of status (a green card) and spouses of some types of visa holders are additional examples of those who may apply for a permit to work in the United States.
It’s important to note that neither B visa holders (tourists) nor undocumented immigrants are eligible to apply for a work permit; it is illegal for an employer to hire people who fall into either of these categories.
As of Oct. 5, 2017, USCIS is no longer accepting DACA initial requests or renewals. DACA recipients whose still-valid EAD was lost, stolen or destroyed can request a replacement by filing a new Form I-765 at any time, but no applications for new EADs or EAD renewals will be accepted. DACA stands for Deferred Action for Childhood Arrivals; it allowed undocumented immigrants who came to the United States as children (brought to the United States before the age of 16 and under the age of 31 when the program was launched) to apply for a renewable two-year period of deferred action from deportation and to be eligible to work in the country.
If you are an asylee, it is critical to make sure that prior to filing the Form I-765 that you have complied with the required waiting period to seek employment authorization. This “clock” begins to tick when a complete asylum application is received by USCIS. Certain circumstances may cause the clock to stop, which can delay your ability to seek employment authorization. For more information regarding this it is best to speak to an immigration attorney.
Applying for a U.S. work permit
To apply for an EAD, you’ll need to complete the USCIS Form-1-765. You’ll also need your proof of eligibility, two passport-style photos and the required fee ($410 in 2017) to submit along with your application. Those required to attend a biometrics appointment must submit an additional $85 biometrics services fee; review the USCIS’ instructions to determine whether you’ll need to include that additional fee.
The instructions on the EAD form, as well as the USCIS website are valuable resources. You should review and keep both items on-hand to use as references for questions, or if you need an explanation for a specific section as you go. An immigration attorney can also be a valuable resource, especially if English is not your native language and you need assistance filling out the form.
The form is two pages long and fairly straightforward. It requires personal information, like name, contact information and date and place of birth. It’s important that your personal information matches what’s on your passport, i.e., that your name is spelled the same as it is on your passport
The form asks for the date and place of your last arrival into the United States (question Nos. 16 and 17); here, they want to know about the literal last time you entered the country. So, if, for example, you were in the United States previously, then left for a short trip abroad, you would record the date you arrived back in the country from that trip.
The questions about eligibility will likely be the most difficult as you’ll need to reference the form’s instructions to determine which category applies to you. The instructions document will also tell you what to attach to the application as proof of eligibility.
If you’re mailing the form, include a check or money order for the required fee (do not send cash). If you’re e-filing, you can pay with a debit card, credit card or electronic funds transfer from a U.S. checking or savings account.
Processing time for an EAD
USCIS is required to make a decision about your work permit application within 90 days of receipt of applications filed under categories other than asylum-based, or within 30 days of receipt for an initial EAD based on a pending asylum case.
You should receive a receipt from USCIS within approximately 7 to 10 days after the application has been submitted. The purpose of this receipt is to let you know that the fees and forms are being processed.
If required, you’ll attend a biometrics appointment approximately 30 to 60 days after the application was submitted.
Delays can usually be avoided by submitting a complete application with sufficient evidence upfront. Your application could be delayed if USCIS requires initial or additional evidence, which is why it’s critical to get it right the first time and why working with an attorney can be beneficial. An experienced immigration attorney knows what evidence will best support your application and will help make sure your application is as complete as possible when it’s submitted.
USCIS also notes that, “the processing time is extended when a request for evidence is issued for any form filed concurrently with Form I-765.”
USCIS created this tip sheet with instructions on what to do if your EAD application has been pending for more than 75 days.
The length of time for which work permits are valid varies depending on an individual’s immigration status or visa type. The majority are valid for one year from their issue date.
EAD renewals and replacements
If you will still be eligible for employment authorization after your original EAD/work permit expires, then you may request a renewal. To do so, you’ll submit a new Form I-765 along with any required fees and attachments as soon as six months (180 days) before your original permit expires. Please note that you may only request a renewal if your original EAD has not yet expired.
In an effort to help prevent gaps in employment authorization and document, USCIS will now automatically extend expiring EADs for up to 180 days for applicants who had property filed for a renewal before their original permit expired and are otherwise eligible for a renewal. The automatic extension provision went into effect Jan. 17, 2017, and applies to Form I-765 renewal applications that were pending on that date or filed on or after that date. Learn more about EAD automatic extensions on the USCIS website here.
If your EAD is lost or stolen, or if it is issued with incorrect information (for example, your name is misspelled), you may request a replacement by submitting a new Form I-765 and any required fees. If you’re requesting a replacement EAD due to an error on the card, and the error was the fault of USCIS, then you do not have to fill out a new form or pay a fee. Instead, you will submit the original card containing the error, an explanation of the error and supporting documentation to correct the error.
Wherever you’re at in the process of securing a U.S. work permit, Robinson & Henry’s immigration attorneys can help. Contact us today to request a free consultation.