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July 25, 2008 - USCIS announced that beginning June
30, 2008, it would issue Employment Authorization Documents
(EADs) valid for two years for individuals who have filed
an I-485 Application for Adjustment of Status and who are
unable to obtain their "green card" because they do not have
a current priority date. This announcement came four years
after the USCIS first implemented regulations permitting them
to issue two-year EADs.
Initially, USCIS stated that it would determine who would be issued two-year EADs based on the most recent Department of State Visa Bulletin. If an applicant does not have a current priority date (i.e. it has retrogressed), USCIS will issue the two-year EAD card. If the Visa Bulletin shows a current priority date for the applicant, only a one-year EAD card would be issued.
In a July 18, 2008 clarifying announcement, USCIS explained that if the priority date is current at the time of filing the EAD application, but later retrogresses while the I-765 application is pending, USCIS may exercise its discretion to review the case again and issue the two-year EAD card. Conversely, however, if an individual files for a two-year EAD card because at the time of filing, his/her priority date is not current, but the priority date becomes current while the I-765 is pending, USCIS may exercise its authority to issue only a one-year EAD card. Essentially, it appears that the USCIS will look to see if there is a current priority date at the time of card issuance, not at the time of filing.
The USCIS also announced a significant limitation to the two-year issuance rule by indicating that a two-year EAD is only available to those that have an approved I-140. Thus, if the I-140 petition is still pending, only a one-year EAD may be issued.
BAL Comment: Our office is pleased to have recently begun to receive two-year EAD approval notices. However, there can be no assurance at the time of filing the EAD application if a two-year card will be issued because of USCIS discretion to examine priority dates at time of card issuance to take into account retrogression or significant forward movement, such as occurred in the EB-2 preference category in the August 2008 Visa Bulletin. The added requirement that the I-140 petition be approved is a disappointing limitation of the two-year EAD benefit, particularly since the USCIS is taking more than one year to approve most I-140 petitions.
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