Mark A Ivener, A Law Corporation

EAD Processing Delays Cause Hardship, Ombudsman Says

The Department of Homeland Security’s Ombudsman noted (PDF) on July 11, 2011, that U.S. Citizenship and Immigration Services (USCIS) in some cases fails to meet its regulatory requirement to process applications for employment authorization in 90 days, and USCIS generally does not issue interim employment authorization documents (EADs). When processing for EADs is delayed, individuals and employers experience adverse consequences. Applicants experience financial hardship due to job interruption and termination, business operations stall due to loss of employee services, families face suspension of health benefits, and individuals have difficulty renewing driver’s licenses. EAD processing delays are exacerbated by the lack of immediate resolution through USCIS’ designated venues.

The Ombudsman recommended that USCIS take the following actions to improve EADs processing:

  1. Establish methods at local offices to facilitate immediate resolution;
  2. Establish a uniform processing time goal of 45 days for adjudication and 60 days for issuance of an EAD;
  3. Improve monitoring and ensure real-time visibility through an automated system for tracking processing times;
  4. Follow established internal procedures for issuing interim EADs in cases where background checks are pending; and
  5. Issue replacement EADs with validity dates beginning on the date the old EAD expires.

USCIS currently directs applicants experiencing EAD delays to contact the National Customer Service Center (NCSC) or the local district office, the Ombudsman noted. However, neither venue has the ability to provide direct assistance. USCIS representatives or officers assist individuals with delayed I-765s by submitting service requests or sending e-mails to the National Benefits Center (NBC) or service centers. The Ombudsman noted that USCIS is reviewing the procedures in place and may provide field offices with updated guidance on how to assist individuals with EAD applications pending past 90 days.

While both service requests and e-mails alert the applicable office of a delay, it may take up to 10 or more days for an I-765 to be adjudicated and an EAD to be delivered, the Ombudsman said. Additionally, while customers receive responses to service requests in five days for expedite requests, and 15 days for all other requests, the responses are often “generic and unhelpful,” the Ombudsman noted. Sometimes the responses state that an applicant’s case is “under review” but do not provide a timeline for issuance of the EAD. Other responses merely state that a decision will be issued in 30 or 60 days, when the application already has been pending past 90 days. “Such responses fail to address the problem because they do not assist the customer in rapidly obtaining an interim or final EAD. The failure to communicate useful information to customers often results in repeated telephone and in-person inquiries causing inefficiencies for USCIS,” the Ombudsman said.

USCIS’ website also lists alternative contact information, such as e-mail addresses, for service centers and the USCIS Headquarters Office of Service Center Operations. However, before people e-mail those addresses, USCIS advises them to wait 30 days for a response from the NCSC and 21 days for a response from the service centers, “when even one day of delay may lead to financial loss for EAD applicants and business disruption for employers,” the Ombudsman said.

The Ombudsman termed a “best practice” the Vermont Service Center’s five-day processing time goal for background checks conducted in connection with adjudication of an I-765. Adjudicators e-mail cases to the Background Check Unit (BCU), identifying the form type and marking it as an expedite request in the subject line. The BCU monitors the inbox to ensure that cases are promptly referred to adjudicators and resolved within the specified timeline. With this process, the Ombudsman said, USCIS is able to resolve minor concerns immediately while carefully reviewing cases that involve national security, egregious public safety issues, criminal convictions, or immigration fraud.

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About the Author

Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.