Due to Covid, applicants for adjustment of status should expect cases to take considerably longer than originally anticipated. Cases that would ordinarily take one year to process might experience additional delays of six months of more, given that USCIS was practically closed for nearly five months and adjudications slowed down to a crawl. Some of our green card clients are only beginning to get called in for rescheduled interviews that were cancelled earlier last year.
Because cases are taking longer, it is likely that any work permits issued in conjunction with the case may expire while the case is still pending. It is important to understand that employment authorization does not automatically renew. In order to continue working without experiencing any gaps, the employment authorization document must be timely renewed by filing another I-765 application no more than 180 days before the prior EAD expires. Otherwise, the applicant will not be able to work legally unless and until work authorization is renewed.
Just as working without permission prior to the application is potentially problematic, so is working illegally after a work permit expires but while the application is still pending. Especially if the family-based application is not filed by an immediate relative, status violations—such as working without authorization—can have serious legal ramifications, potentially leading to disqualification for and denial of the adjustment of status. Chapter 4 of the USCIS Policy Manual is very clear that “Any adjustment applicant is ineligible to adjust status under INA 245(a) if, other than through no fault of his or her own or for technical reasons, he or she has ever: failed to continuously maintain a lawful status since entry into the United States; or violated the terms of his or her nonimmigrant status.” Even in the context of immediate relative applications, this type of violation can still constitute a problem. While working without a work permit is not a per se, or automatic, bar to adjustment of status for immediate relatives, this does not necessarily translate into some sort of immunity. In fact, USCIS recently revised its written policy manual to reflect a marked expansion of officers’ authority to deny cases as a matter of discretion. Certainly, knowingly working without permission after one’s authorization has expired can conceivably constitute a flouting of the law and arguably appear worse than working illegally without ever receiving a work permit. In other words, continuing to work without permission after permission was formerly granted can look worse than working without never having received permission at all.
In short, applicants should not be working without official work authorization. If your EAD is due to expire and your case is still pending, it would be prudent to file a renewal as soon as practicable.
The above is general information only. It is not specific legal advice nor intended to create an attorney client relationship. If you need advice, please consult with an attorney.