Working While Waiting for Renewal EAD

[Empress of Groovy 373]

I had a lengthy chat with a good friend's sister, who works for immigration in some kind of enforcement capacity (she travels a lot and carries a gun--one of those jobs), although she used to work in "information," as she called it. I called her in a panic because my husband's EAD was about to expire, and a trip to the local suboffice to see about an interim EAD proved fruitless. (As most people on this forum seem to know, local offices stopped issuing iEADs in fall 2006, and no one at the suboffices will even attempt to help you if it's been less than 90 days since the renewal app was received. This is 90 days from the Received date in the upper left corner of the I-797.) His EAD expired February 9, and we didn't send in the renewal application until mid-December. In retrospect, we were certainly blindly optimistic; we thought that his permanent resident card would arrive well before the EAD (and indeed the AP document) was due to expire, as we had a successful AOS interview in May 2006. Unfortunately, we're stuck in the FBI name check delay, so it could be years, apparently.

In any event, I asked her if she had a suggestion regarding what to do about his about-to-expire EAD, and she said, "Well, does he think his employer will notice?" She went on to say that working between EADs, particularly when the application has been sent in and the check cashed, is not a deportable offense, and it will not affect a pending I-485. She admitted that she wasn't even sure how the "offense" would be classified, or if it would even be considered an offense at all. I thought that this was quite interesting, because "You can't work on an expired EAD!" alarmist stuff is all over the immigration boards. But take it from someone who makes a living looking at immigration cases: Immigration is not interested in busting a *legal* resident who continues to work in the time between when one EAD expires and another is being issued. And working between EADs is not the same as working illegally (i.e., out of status or illegal entry).

USCIS is a gigantic, inefficient, overworked agency; they have bigger fish to fry than seeing if a legal resident is working for a few weeks while awaiting a new EAD. I also asked about the employer: Could the company be fined or held accountable for employing someone who technically may not have work authorization? Her answer: There is practically no way that it would even be discovered, and even if it were--say, an angry coworker calls the CIS to report him--the CIS wouldn't bother with it. She said, "If I looked up his case, I'd see that everything is in order: legal status, pending I-485, EAD issued, renewal EAD app submitted." She said that immigration is interested in companies that employ large numbers of *illegal* immigrants who have fraudulent documents (if any at all), stolen social security numbers, and the like. Immigration certainly does not have the capacity--or indeed the desire--to check random companies to see if legal residents may be working between valid EADs.

It seems that the best approach is to just keep working and don't say anything to your employer. If someone from HR asks for an updated EAD, say that it's on the way. Most HR departments are not experts on work status; as long as you have a valid EAD to show upon hire, it's often down to the employee to make sure the company has the latest information on file. My husband works for a large, well-known company, and the HR department has said nothing so far. (Incidentally, I just received notification that his renewal has been approved and is on the way, yay!)

That said, it's still a good idea to apply within 100 or so days; save yourself the anxiety. Also, we live in a state that will not issue a driver's license past the expiration date of an EAD, green card, or stamped I-551, so my husband's license expired the same day as the EAD. He continues to drive (because we are married, he is still insured on my car), but it could be problematic if he's pulled over. We'll both feel a lot better when the EAD arrives and he can renew his license.

This whole situation is maddening; I'm trying not to think about the fact that we should have had the green card 10 months ago, but because of bureaucratic ineptitude and useless procedures, we have to wait an indefinite period, plus shell out $350 to renew documents. I know of people who have entered into sham marriages and encountered less nonsense than we have. For the record, my husband is from he UK and has a pretty common white-bread name. It would be interesting to know what percentage of applications held up for name check actually involve someone with terrorist or criminal connections. A very low percentage, I suspect.

Anyway, I hope I've provided some good news for people awaiting renewal EADs and losing sleep because of a looming expiration date (and sorry for the long-winded post!). I think there's a lot more to lose by stopping working, company-sponsored health insurance not the least of it. Good luck, everyone!

Edited March 13, 2007 by big_ag

[KarenCee 3]

You are suggesting that those without their green cards should continue to work even after the EAD is expired? Personally, to continue to do so could create problems, not necessarily work related. My husband's license depended on him having a current EAD. IF by some chance his GC doesn't arrive before he has to renew his driver's license, then we would be SOL by not renewing his EAD.

What IF the employer asked, knowing that he or she has employed someone with an EAD and knows the requirements. Then what? The employer would have the right to insist that the employee be up to date with his or her documentation.

I'm not so sure I'd take the word of someone like this. So, you and your husband are going to take the chance that nothing will be said for who knows how long while you wait out this name check issue. To deliberately lie...I dunno...I'd have a problem with that as an employer.

All in all IMHO this is NOT good advice.

[rebeccajo 14]

The advice is 'pragmatic'.

Some HR departments keep track. Some don't.

The responsibility is really on the employer.

The only real inaccuracy in the original post is that a 'renewal application' for an employment authorization is not enough to legally satisfy the I9.

I've read in this community of many companies asking their immigrant employees to take a hiatus if they are between EADs.

100 days to refile is a good recommendation. I personally recommend 120.

[Empress of Groovy 373]

Hi, all

I should probably clarify/restate a couple of things.

(1) My husband did apply for an EAD renewal in mid-December, although we realized pretty quickly that it was not going to arrive before the expiration of the first one, February 9. I am not suggesting that people awaiting green cards should continue to work w/o applying for a renewal EAD; that would not be wise. I am suggesting that if you find yourself applying for a renewal EAD inside the 90 days prior to expiration and realize that you may have a lapse of a few weeks between when the old one expires and the new one arrives, there's a very good chance that you can continue to work without repercussions. The reason we waited so long was that we had just initiated an inquiry into the AOS delay, which you can do only if 180 days have passed since the AOS interview. After the inquiry indicated that the application was delayed indefinitely, we applied for the EAD renewal. Of course, by then, we only had about seven weeks until expiration.

(2) I am not suggesting that people lie to their employers. They are completely within their rights to insist on current documentation, and if you can't provide it, you may be forced to take a leave of absence or leave the job completely, depending on the circumstances. To say it's on the way is not a lie--again, my posting was directed toward people who have sent in renewal applications for their EADs. But, as rebeccajo noted, this is not information that the employer is required to accept, and paper proof that the application is being processed (i.e., I-797) cannot replace a valid EAD. But for many employers (including my husband's), a verbal acknowledgment that you have applied for a renewal may be enough. If it isn't, you may indeed have to leave the job.

Yes, this advice is pragmatic, and I'm not encouraging people to take ridiculous risks. But I did think that some people might be less anxious knowing that working between EADs for a short period isn't the sort of "offense" that will jeopardize one's AOS application. Believe me, I'm not being cavalier about this! When I received the three duplicate e-mails on Sunday that my husband's I-765 renewal app had been approved, I was ecstatic. I think I even poured some whiskey into my coffee--who can remember?

[SALAM-DEEN 0]

Okay guys, I’ve been in that situation. I was waiting for my GC to be approved, and whenever I went to the local office, I ‘ve been told not to apply for the EAD renewal, as my case was before an officer and just awaiting decision.

I decided to e-file for EAD renewal a month before mine expires, just to be in the safe side. And guess what? 1 week after my EAD expired; I had my company HR person harassing me to provide the work permit. She said they had an audit and it showed that my EAD is already expired, so now I have to file out a new I9 form.

Lucky for me I did two things; first I applied for the EAD renewal, and I got a receipt. Second, I went through the I-9 form to see if there is a way out.

The form clearly says on section 2 paragraph 2

Employers must complete Section 2 by examining evidence of identity and employment eligibility within three (3) business days of the date employment begins. If employees are authorized to work, but are unable to present the required document(s) within three business days, they must present a receipt for the application of the document(s) within three business days and the actual document(s)within ninety (90) days.

It worked for me; I showed my HR my receipt and explained to her that I have 90 days to present my actual EAD, and she went with it . In fact, I needed the 90 days period, as I could not afford to be out of work. Now I just get an approval email for my I485 this week.

My point is if you already applied for renewal, YOU HAVE THE RIGHT TO STAY IN YOUR JOB

GOOD LUCK

[KarenCee 3]

I would think if you have the NOA1 showing the EAD has been applied for should be sufficient to prove that the EAD is on its way...don't you think?

[John & Annie 0]

I would think if you have the NOA1 showing the EAD has been applied for should be sufficient to prove that the EAD is on its way...don't you think?

But only on the renewal, i would think

[LaL 418]

thats good news about the I-9... i must have missed that, but the stance USCIS takes is the NOA is only good as documentation if its for a REPLACEMENT card due to being lost or stolen.

and 'round and 'round we go!

[KarenCee 3]

I would think if you have the NOA1 showing the EAD has been applied for should be sufficient to prove that the EAD is on its way...don't you think?

But only on the renewal, i would think

Yeah, that's what I was thinking.

thats good news about the I-9... i must have missed that, but the stance USCIS takes is the NOA is only good as documentation if its for a REPLACEMENT card due to being lost or stolen.

and 'round and 'round we go!

*sigh* Yep...the USCIS merry-go-round. Only it's not so merry, eh?

[Ashleigh-Au 0]

My employer contacted me the day mine expired to provide them with an updated one...which fortunately I had.

I didn't tell them before that tho cos I wanted to see if they noticed. They did.

[KarenCee 3]

My employer contacted me the day mine expired to provide them with an updated one...which fortunately I had.

I didn't tell them before that tho cos I wanted to see if they noticed. They did.

Good thing you had yours, eh? I do wonder if an employer would ask a person to leave IF they didn't have an updated EAD. That's why I thought this advice was rather bad from the OP.

[SALAM-DEEN 0]

My employer contacted me the day mine expired to provide them with an updated one...which fortunately I had.

I didn't tell them before that tho cos I wanted to see if they noticed. They did.

Good thing you had yours, eh? I do wonder if an employer would ask a person to leave IF they didn't have an updated EAD. That's why I thought this advice was rather bad from the OP.

I still think the I-9 allows people 3 days to provide I 797 for the EAD, and 90 days for the actual card, regardless if you just applied or if you are renewing...

I understand it's easy to get bullied or harrased by the HR person, just try point out to them very nicely the form explanation....

A lot of companies notice now the I-9 expiration, because they use softwares that audit employees. Big companies do not even wanna get involved with the USCIS in any way

[Dr_LHA 3]

I still think the I-9 allows people 3 days to provide I 797 for the EAD, and 90 days for the actual card, regardless if you just applied or if you are renewing...

I understand it's easy to get bullied or harrased by the HR person, just try point out to them very nicely the form explanation....

A lot of companies notice now the I-9 expiration, because they use softwares that audit employees. Big companies do not even wanna get involved with the USCIS in any way

Explaining the I-9 to a HR person eh? I'm sure they're familiar with it!

Anyway - your I-797 is not enough to prove eligibility for employment. You need to have an *approved* EAD, not just a receipt notice. If you read that instruction you quoted:

If employees are authorized to work, but are unable to present the required document(s) within three

business days, they must present a receipt for the application of the document(s) within three business days and the actual document(s) within ninety (90) days.

The important thing being the first sentance. If you don't have an approved EAD, then you are not authorised to work. The receipt does not authorise you to work.

[BJZags 17]

The important thing being the first sentance. If you don't have an approved EAD, then you are not authorised to work. The receipt does not authorise you to work.

This is exactly what is so confusing. K-1's initially, and then AOS to LPR are under the law "work authorized" if they apply for a EAD. Hence, the 90-day "grace" period to show the document if it can be shown that the employee has indeed applied for the required paperwork. The I-9 is asking if the employee is eligible for employment, and to show official "proof". It's the whole chicken or the egg debate: status makes work authorized, but does lack of EAD due to waiting on USCIS back-log negate this? Moral of the story I guess is to apply for renewal to cover your butt and save yourself this debate.

[Dr_LHA 3]

Yeah, the K-1 thing is a grey area, but we were talking about renewal of EAD here specifically, and the fact is once EAD runs out, you are not authorised to work regardless of whether you have an application for a new EAD in process.

AOS to LPR are under the law "work authorized" if they apply for a EAD.

What makes you think this? You are only work authorised when the EAD is approved, not before. Simply applying does not give you authorisation.

Edited March 15, 2007 by dr_lha