EAD Processing Timelines

Dealing With Lengthy EAD Processing Timelines: Practice Tips And Pointers

Based on AILA practice advice.

In the last couple of years, an unexpected drawback has been experienced by the USCIS in the arbitration of Employment Authorization Document(EAD) cards. This has led to practitioners and applicants running around searching out methods to improve the processing or to inquire [in a forward-looking manner] into cases still in waiting, to seek a quicker arbitration. USCIS, in the summer of 2021 improved on the criteria for expedited processes. The following limited situations were included:

1. Severe financial loss to a company or person provided that the need for urgent action is not the result of the petitioners or applicants failure to:
   1. Timely file the benefit request, or
   2. Timely respond to any requests for additional evidence;
2. Emergencies and urgent humanitarian reasons;
3. A nonprofit organization (as designated by the Internal Revenue Service (IRS)) whose request is in furtherance of the cultural and social interests of the United States;
4. U.S. government interests (such as urgent cases for federal agencies such as the U.S. Department of Defense, U.S. Department of Labor, DHS, or other public safety or national security interests); or
5. Clear USCIS error.

NB: USCIS made provision to guide interested parties on how to make requests for expedited EADs for workers in the healthcare sector. This provision was made on December 28, 2021. Workers in the healthcare sector whose application for EAD renewal are still pending, Form I-765, and EAD expiration date is within a period of 0-30days (that is it could have expired or it expires in 30days or less), can make a new request for the expedited processing of their EAD application. In addition to the request, the applicant must attach evidence of their employment as provided for in the DHS Advisory Memorandum from August 10, 2021. Legal practitioners who are representing healthcare workers will no doubt find this update useful and will also require evidence of employment.

While requesting to expedite may be an avenue for recourse, it is useful to note that it is considered based on case-by-case and the absolute discretionary power to grant or deny is held by the USCIS. Practically, to grant these requests, the facts presented should be overall sympathetic. Although, there is no guarantee to this end. It is of utmost necessity that clients be advised to be fully prepared to immediately and with clarity explain the reason for the expedited processing request during the review(which is given discretionarily). They must also provide any evidence necessary to show that the request falls under one of the criteria stated above.

According to the USCIS recommendation, the request should be made through the USCIS Contact Center (800-375-5283). Therefore, there is a need to be prepared with the reason(s) for placing the request. Setting an expectation that further inquiries may be needed to reach a final decision is also vital. Applicants who want to file requests can find the "Ask Emma"function on the USCIS.gov website useful since the USCIS toll-free number could be subjected to an excessively long period of holds. Applicants can chat with live agents about their cases and make necessary inquiries using the "Ask Emma"function. Even when receipt notices have not been issued, receipt numbers can be retrieved by making inquiries with these agents using the "Ask Emma"function. If an EAD request meets the criteria stated above, an applicant can place a request for expedited processing using the "Ask Emma."function. Details such as full name, alien number, mailing address, and date of birth will be requested.

The bar to expedite requests for cases that are eligible for Premium Processing has been removed by the USCIS. This is good because some individuals, nonprofits, and small-scale businesses won't be able to afford the filing fee of $2,500 for important and urgent expedited processing requests.

Posted Processing Timelines and USCIS E-Request

Assuming that the result of an expedited processing request f9r an EAD is unsuccessful, the normal thing to do is to use the USCIS E-Request function to inquire into the case. While submitting a case inquiry, it is vital to indicate that the case is outside the normal time for processing. A response to the inquiries made will only be given if the case is in fact outside of the processing timeline published at https://egov.uscis.gov/processing-times/. As of November 1, 2021, USCIS updated the pattern for calculating its processing timeline. Although the processing timeline is more accurate, it has become longer for the public. Therefore, practitioners should take note of this. Although the calculation pattern has changed as explained below, USCIS still holds to the rule that an E-Request Case Inquiry may go without a response, except the receipt date of the case in question is before the posted date under the "Receipt date for a case inquiry."

The agency has clearly stated that in the case of the "Estimated time range,"the lower end of the range shows the amount of time it took the USCIS to arbitrate 50% of the cases while the upper end shows the amount of time it took to arbitrate 93% of its cases. This new pattern has been used since November 1, 2021, based on six months' worth of data, for some applications, the Form I-765 inclusive. The following is a summary of the recent improvement as it concerns the Form I-765:

1. If the Form I-765 category is (c)(8) for a pending asylum application, the processing timeline listed applies to initial and renewal filings;
2. Adjudications of Form I-765 in connection with category (c)(33) filed in conjunction with a Form I-821D, Consideration of Deferred Action for Childhood Arrivals, does not begin until a decision is made on the Form I-821D;
3. Requests for EAD aligned with Forms I-914, I-918, or I-918A will be adjudicated after those forms are waitlisted or approved; and
4. Adjudications on Forms I-765 filed with Form I-360, Petition for an Abused Spouse or Child or a US Citizen or Lawful Permanent Resident begins after the petition is adjudicated.

Although there is no particular provision on how fast response will be given, an E-Request with USCIS would be prudent and should lead to an answer from the agency. This holds if the case is outside the processing timelines posted on the USCIS.gov website. Clear and properly documented notes on the effort that they put into receiving a response from USCIS as it will be needed if they decide to take the matter further through congressional case assistance or the Office of the CIS Ombudsman.

Specific Categories Of Expedite Requests

The most common kind of request filed is the expedited processing for financial hardship. There is no consistency on the part of the USCIS on the kind of evidence and the premise for an expedite for financial hardship. A monthly budget indicating the importance of the income to the individuals or their family could count as a hardship for such individuals awaiting employment authorization. Starting a job soon could count as a "serious financial loss,"with the USCIS for expedited requests sometimes or not.

The employer's hardship can be recorded by indicating the functions of the employee's role, the challenge in getting someone else with the needed skills to cover the position and related deadlines. The letter from the employee or employer must not be lengthy, rather it should be concise and straight to the point detailing the related financial hardship. A one-paged letter is usually sufficient.

In the case of an expedited request for the cultural and social goals of a nonprofit, the employee's application should be accompanied by a letter from the employer. For instance, in the case of a researcher with special skills and a federal grant having a stated deadline. Another example could be a university that needs to prove the importance of a Residence Director to keep working due to the special relationships made with students who have mental health issues( or other issues) in the dormitory.

Blanket Expedites Disfavored But Could Help Streamline Process

The USCIS could properly focus its resources on if there are limited categories of blanket expedites. For instance, take into consideration the idea of blanket expedites for healthcare providers in the pandemic period. Evidence based on anecdotes agrees with the estimate that over 95% of expedited processing requests for healthcare providers have been granted in the last 18months. To reduce the amount of time spent on expedite requests by officers (to allow them to channel their efforts on case arbitration), it would be best to make provisions for blanket expedite for healthcare providers during the pandemic. Presently, some types of international adoption cases such as I-600 and I-800, receive priority processing, while others such as I-130s do not. Although it is reasonably arguable.

Generally, the USCIS does not favor or give much consideration to blanket expedite policies, although the agency has made a recent update. Healthcare providers can now apply for expedited processing based on the validity duration of their present EAD card. This act has been effective since December 28, 2021. To remove some of the uncertainty that comes with the present expedite process, the USCIS may consider additional limited categories of expedite requests.

Asylum EAD Requests

Potential asylees may be found fit to apply for a 150-day EAD, provided they have properly filed their Form I-589, following interlocutory relief in Casa De Maryland, et al. v. Chad Wolf, et al.The USCIS policy and Form I-589 instructions continuously refer to a 365 days waiting period, while the Form I-765 refers to the injunction. For more information on how members of CASA de Maryland(CASA) and members of the Asylum Seeker Advocacy Project(ASAP) can continue to pursue application for an EAD after their asylum application might have been left pending for 150 days, and a list of which regulatory provisions relating to members of CASA and ASAP, please see and. Also enjoined for CASA and ASAP members is the regulatory provision removing the 30-day adjudicator period for Form I-765 based on an underlying asylum application. It is also important that legal practitioners urge their clients to be members of CASA or ASAP to benefit from the interlocutory relief and the Rosario Class Action Settlement, as portrayed below. A client may qualify as a class member if the following apply:

1. The client is a member of CASA or ASAP or
2. The clients Form I-765 was filed before August 21, 2020, and remains pending.
3. The following must also apply:
   1. The clients Form I-589 has been pending for 150 days, not including any delays caused by him or her, and
   2. USCIS does not adjudicate Form I-756 within the 30-day accrual period.

Failure of a client to appear for an already scheduled hearing for their Form I-589 will result in a refusal of the USCIS to grant Form I-765, except the representing attorney can establish that the client's absence was due to circumstances beyond control. The USCIS also published directions concerning the Rosari Class Action Settlement. It requires that original EAD requests for asylum seekers be resolved within 30 days.

In the case where the Form I-765 of a client who is a Rosario Class Member has not been resolved within 25 days, the practitioner may submit an e-inquiry through the USCIS website or by calling the USCIS Customer Service. Please remember to save the service request number. If there's no forthcoming result from USCIS within a period of 8-days after submitting the inquiry, the attorney can send an email to the USCIS Texas Service Center Class Action via tsc.classaction@uscis.dhs.govand also include the class counsel asylumEAD@nwirp.orgin the CC line. The subject of the email must be "Rosario Class Action." The information to be included in the email are:

• Attorney name;
• The service request number;
• The date the USCIS Contact Center created a service request;
• The Form I-765 receipt number;
• The received date on the client's Form I-765 receipt notice; and
• If applicable, indicate that the client is a CASA or ASAP member.

USCIS strongly advises that the practitioner include only all the information stated above, otherwise there will be no response.

Congressional Case Assistance

A practitioner can consider reaching out to a local member of Congress as an option if a case has been delayed beyond normal processing time. With excessively long processing times, representatives in Congress could be helpful, since they have some staff members whose jobs are to liaise with federal agencies including USCIS. Reaching out to Congress members requires effort, time and a whole lot of patience, since they may not always be able to help.

Before requesting assistance from a member of Congress, the practitioner should first make certain that a USCIS E-Request has already been filed and must be able to demonstrate these efforts. Concerned attorneys can visit to find the exact office that can assist. After logging on to the website, the next thing is to find the representative based on the applicant's zip code, and then visit the website of that particular member of Congress. Usually, there should be an option for "Help with Federal Agency,"on the website of the member of Congress. Note that there are various patterns for vetting requests for assistance depending on the member of Congress. For instance, some may demand that the applicant submits the USCIS Privacy Act Release Form through regular mail, while some may give the option of e-mail. Some others may have a related release form that must be filled out with required information about the case instead of the USCIS Privacy Act Release Form. Notwithstanding the process adopted by the member of Congress, there will always be detailed instructions to be followed by the applicant to achieve maximum success. After submitting the privacy release form, it is ad iced you allow the office of the congressperson three to five business days to respond. A contact number for expedited services is usually offered by some offices of congresspersons, especially if there's a tight time constraint for the request. Concerned parties should be ready with the necessary information that can be used to find the application when making the request. Some of this information is the alien number(s), receipt number(s), dates of notices, or even copies of all receipt notices as well as documentation concerning the request to expedite. The more information provided, the better. It is expected that the practitioner requesting assistance has exhausted all efforts in collecting information directly from USCIS. To this end, it is vital to document requests submitted to USCIS and calls made. It is also vital to inform the congressional office if you have formerly attempted to get assistance from another office.

So long as the stated instructions are adhered to, a member of staff from the concerned congressional office will normally reach out via the contact information submitted in the request. Although there's no specific time duration to expect a reply from the member of congress, practitioners have discovered that responses are generally faster than the inquiry channels of the USCIS.

Care Assistance From The CIS Ombudsman

Just like the office of a member of Congress, the office of the CIS Ombudsman may be able to seek a resolution of an EAD that has been pending for a long. A major task of the CIS Ombudsman is to "assist individuals and employers in resolving problems experienced when seeking immigration benefits from USCIS."Like the congressional office, the office of the CIS Ombudsman expects that applicants must have contacted the USCIS before submitting a request to their office. The applicant can now go ahead to file a Form DHS-7001 online or via mail with the Ombudsman's office if assistance is still needed after inquiring with the USCIS. The Ombudsman advises that requests should only be filed with it if the assistance sought is outside of USCIS' published processing times or if the case falls within the expedite criteria and is still not been denied by USCIS.

Litigation

In the case where a client's EAD is faced with unnecessary delays in its arbitration or the client might be faced with irremediable damage due to the government's delay, then litigation might come in handy. While this may not be the first option, it is a final resort sort of. According to the Mandamus and Administrative Procedure Act(APA), when a litigation is filed or even when an intent to file is conveyed, it could lead to an instant decision on the state of an EAD. A petitioning client also stands good chances of finding favor before the judge. There are various timelines for litigation and not all issues pursuing timely arbitration will be successful. Nevertheless, when the attorneys and clients have tried most or all the above-mentioned channels and the findings support litigation, then it may be appropriate to resort to the courts. For more information, visit

Conclusion

There is a need for some careful sanguinity that very slow processing times in 2021 will be decreased in 2022. There is litigation on delays for EADs specifically. An employment authorization incident to status for L-2 and E spouses was recently allowed, biometrics was also waived in some cases. Although the USCIS has not yet fully enforced the legislation to expand premium processing, in the fall of 2020, Congress permitted the expansion of the premium processing to expedite service to include change of status and work card applications. Since the USCIS depends on filing fees to properly function, adding to the categories of premium processing will generate much-needed revenue for reducing backlogging. This doesn't mean that the related USCIS delays will disappear, and there will be times when expedited requests will be used to assist clients. To stand a chance at success with the USCIS, one must make particular reference to the USCIS criteria and provide clear evidence in support.