In our AskVisalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.
If you have a question on immigration matters, write [email protected]. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.
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QUESTION: I am in L-1A visa status and applied for extension. We also applied for an extension of my wife’s L-2 visa status and her work authorization (EAD). Her EAD has expired but we received the receipt notice for the EAD extension. She has an offer to start working with a new employer. Can she start the new job now and work for up to 180 days while her application is pending?
THE IMMIGRATION ANSWER MAN – ARI SAUER: Sometimes someone who has a pending Form I-765 application to extend/renew their Employment Authorization Document (EAD)(also known as a work authorization card) will receive an automatic extension 180-day extension of their work authorization beyond the expiration date on their EAD. For those that are eligible for the 180-day extension of work authorization, they can even begin employment with a new employer during the 180-day extension period of their work authorization while their I-765 application is pending. They would show the employer their expired EAD and the Receipt Notice for the I-765 application as proof of their work authorization during the 180-day extension period. If the employer does not know how to complete the Form I-9 in that situation, the employer can refer to the Form M-274 Handbook for Employers which is on the USCIS website, which provides specific instructions for this situation.
However, the work authorization is only automatically extended for 180-days for those who are filing for a renewal of their EAD in certain categories (see the instructions to the Form I-765 for a full list of EAD categories). Also, the 180-day extension is not available for those who are applying for a new EAD based on a different category from the EAD that they have. Finally, the Form I-765 application requesting the renewal of the EAD must be filed prior to the expiration date on the EAD that they have (this is not always true for someone applying to extend their EAD based on having TPS).
Unfortunately, someone who is applying for a renewal of their EAD based upon being an L-2 spouse of an L-1 intracompany transferee nonimmigrant [which is EAD category (a)(18)] is not eligible to receive the automatic 180-day extension of employment authorization. So, your wife will not be able to begin employment with the new employer until she receives her new EAD.
As of the writing of this article (April 24, 2019), this is the list of EAD categories that automatically receive a 180-day extension of work authorization while the I-765 for EAD renewal is pending.
| (a)(3) | Refugee |
| (a)(5) | Asylee |
| (a)(7) | N-8 or N-9 |
| (a)(8) | Citizen of Micronesia, Marshall Islands, or Palau |
| (a)(10) | Withholding of Deportation or Removal Granted |
| (a)(12) | Temporary Protected Status (TPS) Granted |
| (c)(8) | Asylum Application Pending |
| (c)(9) | Pending Adjustment of Status under Section 245 of the Act |
| (c)(10) | Suspension of Deportation Applicants (filed before April 1, 1997) Cancellation of Removal Applicants Special Rule Cancellation of Removal Applicants Under NACARA |
| (c)(16) | Creation of Record (Adjustment Based on Continuous Residence Since January 1, 1972) |
| (c)(19) | Pending initial application for TPS where USCIS determines applicant is prima facie eligible for TPS and can receive an EAD as a “temporary treatment benefit” |
| (c)(20) | Section 210 Legalization (pending I-700) |
| (c)(22) | Section 245A Legalization (pending I-687) |
| (c)(24) | LIFE Legalization |
| (c)(31) | VAWA Self-Petitioners |
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QUESTION: I applied for Work Authorization (EAD) and Advance Parole along with my I-485 application. Will travel before the Parole is approved forfeit just my Parole application or will that also cause the denial of my application for EAD?
THE IMMIGRATION ANSWER MAN – ARI SAUER: The answer depends on what immigration status you hold.
If you are not in valid H-1B, H-4 (for spouse or child of H-1B), L-1A, L-1B or L-2 nonimmigrant status when you leave the US, and you do not have a valid H-1B, H-4, L-1A, L-1B or L-2 visa in your passport to use to return to the US, then leaving the US before the Application for Advance Parole (Form I-131) is approved and the Advance Parole document is issued will result in the abandonment and denial of the Form I-485 Application for Adjustment of Status, as well as the applications for Advance Parole (Form I-131) and Work Authorization (EAD) (Form I-765).
If you are in valid H-1B, H-4 (for spouse or child of H-1B), L-1A, L-1B or L-2 nonimmigrant status when you leave the US and you have a valid H-1B, H-4, L-1A, L-1B or L-2 visa to return to the US on and this is an application for an initial Advance Parole, then travel outside the US before Form I-131 is approved and the Advance Parole is issued will result in the Form I-131 application being abandoned and denied, but should not affect your Form I-765 application for EAD.
If you already have a valid Advance Parole document and the pending Form I-131 is an application to extend your current Advance Parole and you will be returning to the US on your current Advance Parole prior to the current expiration date, then traveling abroad while your Form I-131 application is pending should not result in a denial of any of these applications.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.