EAD Processing Delays

Permanent Residency applicants continue to see longer than normal delays for their initial and renewed employment authorization cards. In early 2019, the normal processing time for an EAD application was still three months. As of Aug. 13, 2020, the processing time for an employment authorization card at the California Service Center is 9.5 months to 12 months. Per the U.S. Citizenship and Immigration Services website, they are currently adjudicating cases filed on Aug. 18, 2019.

Most applicants can file to renew their employment authorization card up to six months in advance of the expiration date. Still, many applicants are not getting their renewals approved before the current EAD expires. USCIS does allow an automatic renewal of the EAD for up to 180 days for certain applicants to help prevent a period of unauthorized work; however, there are various terms and conditions that apply to qualify for this automatic renewal. It is more important than ever to note the expiration dates of employment authorization cards and to contact your attorney at least six months before the card expires to begin the renewal process.

EAD Card Production

The Office of the Citizenship and Immigration Services Ombudsman has reported that USCIS has reduced its capacity to print secure documents such as Lawful Permanent Resident, or LPR, cards and Employment Authorization Documents, or EADs. USCIS ended a contract with the company responsible for printing these cards because they were intending to hire federal employees. Instead, a subsequent hiring freeze occurred, resulting in a shortage of staff to print cards. If USCIS begins its anticipated furlough in August 2020, card production backlogs would likely increase.

CLINIC reached out to the Ombudsman’s office with concerns about the upcoming furlough. While the Ombudsman’s office does not have complete information on USCIS’s planned furlough procedures, they were able to relay that USCIS intends to have a skeletal staff in each field office to handle emergencies and, as a result, appointments would be reduced.

Public Charge Updates

In a short period of time, recent court cases have caused multiple changes to the implementation of the public charge rule. The situation remains fluid and can continue to change at any time. Please sign up for CLINIC Agency Updates to keep abreast of the latest precedent-setting decisions and policy memos.

Aug. 12, 2020

On Aug. 12, 2020, the U.S. Court of Appeals for the Second Circuit limited an order that had blocked the nationwide implementation of the public charge rule in all states. Now, the implementation of the public charge rule is only blocked in New York, Connecticut and Vermont. The court set aside last month's ruling from a federal judge in New York, who said the so-called "public charge" test was hindering nationwide efforts to contain the coronavirus by discouraging immigrants from requesting public assistance, including medical treatment, during the pandemic. As of Aug. 13, 2020, USCIS is reviewing the Court’s order to determine re-implementing the rule where applicable. The decision did not affect the District Court’s decision to block the Department of State’s ability to apply the public charge rule to nonimmigrant and immigrant visas.

July 29, 2020

The implementation of the public charge rule was halted by a federal court injunction. The decision in State of New York, et al. v. DHS, et al. and Make the Road NY et al. v. Cuccinelli, et al. enjoined the Department of Homeland Security, or DHS, from enforcing, applying, implementing, or treating as effective the Inadmissibility on Public Charge Grounds Final Rule for any period during which there is a declared national health emergency in response to the COVID-19 outbreak. As long as this injunction and the national health emergency are in effect, USCIS would have applied the 1999 public charge guidance that was in place before the public charge rule was implemented to adjustment of status applications, and will not apply the public benefit condition when adjudicating any application or petition for extension of nonimmigrant stay or change of nonimmigrant status.

In a separate injunction issued by the same court, the Department of State is prohibited from applying its public charge rule to immigrant and nonimmigrant visa applications. The basis for this injunction is that the agency’s regulation was arbitrary and capricious and violates the statute.