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Employment Authorization Document (EAD) and H-1B Teleconference Recap

On August 31, 2016, the DHS Office of the Citizenship and Immigration Services Ombudsman held a public teleconference on processing delay issues in three specific product lines:  Applications for Employment Authorization, Applications for Change of Status and Petitions for Extension of H-1B status.  Guest speakers included attorney Vincent Lau and Steven Springer, Director of Regulatory Process at NAFSA: Association of International Educators.   Although USCIS declined to speak on the teleconference, a number of USCIS representatives listened in on the call.

As reported in the Ombudsman’s 2016 Annual Report to Congress, delays in processing in nearly all product lines are lengthening, and the Ombudsman’s Office considers this issue as perhaps the single greatest challenge facing the agency at this time.

In fiscal year 2015 (FY 15), 22% of Form I-765 Applications for Employment Authorization (EAD) were adjudicated after the expiration of the 90 day processing period set by existing regulations.  As a percentage of all requests for case assistance received by the Ombudsman in FY 15, 11 percent involved EAD processing issues.

Further analysis of data FY 15 and 16 (year to date) identifies that among the various categories of EAD applications received by USCIS, the top three are associated with Adjustment of Status filings, Optional Practical Training (for post-graduation students) and those applicants seeking Asylum.

EAD Key Points:

  • It was reported that this year Optional Practical Training (OPT) EAD filings appear to be moving fairly well, especially in contrast to last year when many students found themselves unable to begin work on time. Last fiscal year, despite having filed for an EAD well in advance of their projected start dates, many adjudications exceeded 90 days.
  • USCIS has recently proposed the elimination of the regulation requiring a 90-day processing time, and there is legitimate public anxiety that EAD processing times will lengthen without a fixed-time requirement for adjudication.
  • The proposed regulation would also, however, provide for an automatic 180-day work authorization for most EAD extension applications that are timely filed. There are exceptions (for example, DACA applicants, some H-4 applicants, and others).Customers are advised not to assume that they are qualified for the automatic extension.
  • EAD extension applicants are advised to file their applications as soon as possible. USCIS confirmed with the Ombudsman’s Office that it will accept EAD applications 120 days in advance of the expiration of their existing EADs.

Change of Status (COS) Key Points:

  • One of the more common COS scenarios involves changing status from tourist (B-2) to student (F-1), but current adjudications of COS applications are taking several months, which may not align with school start dates. Some prospective students who are filing COS subsequently find that they must exit the United States and consular process for F-1 visas in order to begin school on time.
  • Earlier this year, USCIS temporarily transferred COS cases from the Vermont Service Center (VSC) to the California Service Center (CSC) for processing due to significant processing delays.
  • Also in response to lengthening COS times, as of September 1, 2016, USCIS now requires all COS applications to be filed at the Nebraska Service Center (NSC). The Ombudsman is interested in hearing from the public on their experience with this centralization with the NSC.(Note: All USCIS customers should check USCIS’ website for the most recent instruction on where to file the particular form type as filing locations do change from time to time for various reasons.)
  • Discussion also identified how processing delays, particularly in COS from B-2 to F-1, can result in denials through no fault of the filer. This is due to USCIS’ interpretation of section 8 CFR 214.2(f)(5)(i), and the potential for gaps in status despite the timely filing of a COS application. B-2 visitors should carefully explore this issue with their foreign student advisors or with an immigration professional to understand the risks of seeking a COS given the current delays in this product line.

H-1B Extension Key Points:

  • Processing delays that are occurring in the H-1B extension filings is among the highest priority of current issues being raised with USCIS by employers and the immigration bar.
  • In the past processing times were routinely 4-5 months, and the existing regulation provides for an automatic extension of work authorization if a timely extension of status is filed by the same employer up to 240 days. The problem is that adjudications of H-1B extensions are now regularly approaching (or exceeding) 240 days.
  • H-1B extension processing delays create substantial challenges and hardships to employers and beneficiaries alike. Breaks in the continuity of employment are occurring, and the unpredictability of adjudications impair travel, assignments, etc. Planning based on the regulatory automatic 240-day work authorization is becoming increasingly risky.
  • Note: USCIS advised in May 2016 that employer’s with H-1B extension petitions pending at least 210 days may make an inquiry through the National Customer Service Center at 1-800-375-5283.
  • Many employers no longer consider premium processing as just an option, but the recommended course if reliable adjudication speed is needed. Yet some non-profit entities report that they are unable to use premium processing due to the inability to pay the additional $1225 upgrade fee.
  • In an effort to respond to delays in the adjudication of H-1B extensions, and for other reasons, with one exception, USCIS now directs all employers seeking H-1B extensions for the same beneficiary to file the petition with the NSC for processing. Cap-exempt employers should continue to file H-1B extension petitions with the CSC.(Note: All USCIS customers are advised to check the USCIS website for current forms, instructions and filing locations as they differ under different facts and/or geographic parameters).
Last Published Date: September 12, 2016

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