New Guidance Issued for Certain Work Permit Applications

On February 7, 2022, DHS updated the validity periods for employment authorization documents (EADs) for certain immigration categories. Under the new guidelines, DHS extended the maximum validity period for first-time employment authorization documents to two years for asylees/refugees, noncitizens with withholding of deportation or removal, and VAWA self-petitioners, or up to the end of the authorized deferred action or parole period to applicants in these filing categories. EADs for adjustment of status applicants already had been extended to two years.

In order to work lawfully in the United States, foreign nationals must obtain employment authorization that depends on their immigration status. Some immigration statuses automatically provide employment authorization “incident to status” for the principal H, L, E, O, etc. visa holder. Other immigration statuses require the foreign national to affirmatively apply for and obtain permission to work before employment can begin. If USCIS grants the authorization, the foreign national receives an employment authorization document (EAD) as evidence of their ability to work lawfully in the United States. USCIS also has discretion to assign validity periods for certain categories of employment authorization.

Before the February policy change, initial and renewal EADs were usually valid for one year for asylees/refugees, noncitizens with withholding of removal, and VAWA self-petitioners. Initial and renewal EADs were issued for foreign nationals with deferred action or parolees for periods shorter than the duration of their underlying deferred action or parole period. As a result, deferred action recipients and parolees were required to file multiple EAD applications. USCIS extended the validity period for these initial EADs to ease the burden on the agency and the public, given the current processing times. USCIS anticipates this policy change will reduce the number of times foreign nationals in these categories must reapply for EADs and prevent future gaps in their employment authorization.

The policy change applies to all EADs issued after February 7 for foreign nationals in the named categories. Employment authorization documents issued before that date were not affected.

On a somewhat related note, USCIS had announced that it will consider E and L spouses to be employment authorized incident to their valid E or L nonimmigrant status. In a recent notice, USCIS has advised that it is starting to modify Form I-94 validity period documents to distinguish E and L spouses from E and L children, making the form evidence of employment authorization.