A. You are allowed to apply no earlier than 120 days before the expiry of the current EAD. The USCIS guarantees that they will try to approve it within 90 days – and they almost always do. So you must apply between 120 days and 90 days before the expiry of your current EAD.
If you are not using an attorney, then the right approach is to fill up the form today and print it – since it cannot be saved. This will help you make sure you have all the information you need when you need to really apply. Once you have printed it, set a reminder for 120 days before the expiry of the current EAD (set as many reminders as you need for every day after T minus 120 days, just in case you forget. Then when the time is right, re-fill the form, print it, take photo copies of all the documents you need to send (like passport, I-94 etc), get passport photos, write a check or checks for the necessary fees, and send it off using a method that includes tracking. Make sure you fill in your email address for email notification of receipt. This way if you don’t get an email within two days of delivery, you can follow up.
Q. I applied a bit late. I waited until Expiry minus 60 days. It is already 45 days since I applied. I was expecting the renewal to be approved by now. I am getting worried that I will fall out of status. Every morning I wake up with a heart ache. I cannot fall asleep easily. What can I do?
Getting a new mattress will not help. But 15 days before the expiry is a perfectly good time to get these things rolling.
If you are unlucky, your company will say that you must take leave of absence from the date of expiry. Or worse, they could say you will lose your job on the date of expiry. Once they take that stand, there is only one thing they can do to help you, because anything else they can try to do to help you is illegal. The only thing they can do is give you a letter in writing stating that you will lose your job on the date of expiry. Get that letter immediately, you will need it to apply for an expedited approval.
If you are lucky, your company will say that the will give you an extension based on your receipt notice. This extension may range from 30 days to 180 days. They say this based on the interpretation that section 245(k) forgives unauthorized work up to 180 days for those who are applying for the I-485 (adjustment of status). As you can read in any correct interpretation of the section, this only applies to new I-485 applicants, not for those who are already in AOS. But the companies who give you an extension, conveniently choose to look away – after all they lose nothing if everything works out in the end. Regardless of how you interpret it, using the 245(k) as an excuse to work beyond the expiry of the EAD is technically illegal. However, your financial situation may very well require you to take the employer’s extension. And in the worst case, if it becomes a factor in your green card decision, the USCIS is ultimately run by humans not computers. So if your situation calls for maintaining your employment, I have a feeling (I’m not a lawyer and I have no expert opinion here) that the USCIS will rule in your favor – giving you the benefit of the doubt – and saving on lawyer fees.
Given the two above possibilities, your recommended course of action is the same.
- You need to contact the USCIS ombudsman’s office. They have a form 7001 in pdf to contact them. Don’t use that. Instead fill out this online form. Ombudsman Online Case Assistance
- When you fill out the form make sure you explain that you will face financial issues if you have to lose your job due to the EAD expiration.
- Before you hit submit, make a copy of your plea into a word document or an email. Once you hit submit, you will never see that text again – not in any acknowledgement email, nor anywhere else. And your memory is not that great.
- Save the email acknowledgement. It has your Ombudsman case number (or one of the versions). Note that the email acknowledgement will say that they will get back within 45 days. Don’t worry about it. Don’t wait 45 days. Just go to the next step.
- Set up an infopass appointment. http://infopass.uscis.gov/index.php
- You will notice right away that if it is related to EAD they want you to wait 90 days or at least 75 days before you can get an appt. It may even appear that there is no option to create an appointment. Yes, that is the rule they have. This is in order to provide good customer service to those who have a genuine need for their services. There is one more criterion that is not mentioned on the site that qualifies you for an infopass appt – desperation. If you are desperate, you qualify. Just go ahead and go through the motions to create the appt.
- Scared to do that? Well that is only natural. If you fear that you will jeopardize your chances of a smooth transition to green card/permanent residency, you have another way to meet the USCIS without an infopass appt. Just show up at their door asap.
- If you did take an appt, usually you get it for the following day – or two days later. In either case, with or without an appt, go there early. Once you get there, it is just like the DMV. They don’t really care what time your appt is at, it is first come first served.
- If you do have an appt., show them your paperwork, go through security, and stand in your infopass appt., queue.
- If you have no appt., you may need to do some pleading through a crack in the door (usually the door is locked and the security guard opens the door just a bit to allow you to talk once you knock.) They may say, you need an appt.. Tell them, you came from very far away and took leave from work today just for this. What ever excuse they give to not let you in, don’t give up. Just refuse to leave unless they let you in. They will let you in. If they don’t, ask to see their supervisor. You have nothing to lose. Some guards are nicer. They just leave the door open because they know they are required to let everyone in as long as they are not armed, (or leave their weapons at the door, I guess.) Next, go stand in the “no appointment” line. This line moves just a bit slower than the infopass appt line. But that’s nothing to worry about. Once you are in, you will be processed before you leave.
- After getting your token and other preliminary pleasantries, wait for your turn.
- When you meet the officer, explain your hardship to him. Be prepared with a good excuse for not applying on time. Show the letter from your employer that says you will lose your job. This is the most important piece of paper. Have your mortgage bill, medical insurance bill, renters agreement, car loan document or whatever else you think can help your case, handy. Be patient and courteous. They are very courteous. This officer cannot give you your EAD. The USCIS no longer gives interim EADs either. So the only thing this officer can do is make a call to the service center and validate that your file is not lost etc. Remember, this officer is on your side. If he is harsh to you, just plead guilty, sorrow, and whatever to make him less harsh. But don’t take no for an answer. He must make the call to your service center – Nebraska, Vermont, whatever. That is your goal. Get him or her to make the call and instructions on what to do next. If you feel he is not on your side after a few minutes, ask for his supervisor. Explain to him that all you want him to do is get some kind of status and instructions for your case from the service center that is not already on the Internet.
- All this may sound scary, so do it only if you have trouble sleeping or trouble waking up. If you have neither, then you don’t stand a chance.
- Once you go home follow the instructions you received from the USCIS office. This might involve faxing documents and other proof they need. Or it might be to just wait.
- After you are done with all the instructions, send an email to the Ombudsman’s office with all the actions you have taken. Use your case number from the acknowledgement email, and send the email to this address. email@example.com
- Wait a day and call the Ombudsman’s office. It has probably been three or four days since you filled out that form. Yes, it is not 45 days yet. But that’s OK. When you call that office during business hours – 9 AM to 5 PM eastern time – a human will always answer. There is no computer to go through. It is almost like calling home when you know your mother is home. It is so pleasant to call that number during office hours and always get a human to answer. They might say, “let me put you on hold for a moment”, but it is still a human always. Thank god for tender mercies.
- Explain your situation to anyone who talks. They will route you to the “right” person. This person is called the “duty officer”. It could be a new person every time you call, or it might be the same person. Tell them everything you have done. In the end ask for a case number. This is not the 12 digit number you got in the email. This is a new 6 digit number. You can use this to track your case.
- The first time you talk to the ombudsman’s office they will tell you it takes them about 2 weeks to open your case and look at it. Yes, that is true. That is how they can get back in 45 days. But that’s not what you want. You plead with them. They will open your case. Ask for the next steps. Your next step is almost certainly to “wait”. Ask them if they can talk to someone in USCIS to expedite your case.
- BTW, expedite is a very important word you have to use in every communication you have with the USCIS. If you start a phone call with the word ‘Hello’ or ‘Hi’, if you end your phone call with a ‘Thank you’ or a ‘Take Care’, then you must use the word ‘expedite’ during your conversation. If you send a fax, use the word ‘expedite’ in your subject. If you send an email use the word ‘expedite’ in your subject and body. If you sneeze during a call, sneeze the word ‘expedite’ – like Aa aa aah
- Call the ombudsman’s office in two or three days and repeat. If you have not received the EAD two days before expiry, visit the USCIS again.
Q. Why do you say it is technically illegal to work without authorization? Doesn’t 245(k) offer some kind of protection?
A. The 180 days is not to be used proactively, rather as a cure for accidental violation of status after the fact. No company should allow work without authorization as they would be in violation of knowingly employing someone without work authorization.