As a matter of real world practice, whether a person can still use their Employment Authorization Document ("EAD") will largely depend on the employer. Many employers believe that, if an I-485 application is denied, then the EAD is no longer valid. This is not true.
What is the Legal Issue?
An EAD is valid unless revoked. Once issued, an EAD does NOT depend on the original reason that the EAD was sought. In general, to obtain an EAD, a person must file Form I-765. Form I-765 requires a distinct basis for the Form to be accepted, processed and approved. Legally, this is often called a "predicate or “basis”."
An EAD remains a valid work authorization document until the expiration date printed on the EAD document. This is because the statutes and regulations require action from the immigration authorities to officially revoke an EAD. If not revoked, the EAD remains valid. This was stated plainly in the recent case of Hamad v. Dept. of Homeland Security, Case No. 3:20-cv-476 (US Dist. Court, S.D. Ohio, July 14, 2021). To quote the court (citations removed and emphasis added):
"During the pendency of a Form I-485 application, foreign nationals can apply for employment authorization through a Form I-765. Approval of Form I-765 applications is committed to "the discretion of USCIS." ... If the application [for EAD] is granted, USCIS will issue the noncitizen a Form I-766 EAD for a "specific period" of time. USCIS can revoke the noncitizen's EAD at any time if the Form I-485 on which the EAD is based is denied."
Further, the statutes and regulations are clear that an EAD ONLY expires or terminates AUTOMATICALLY under three conditions:
- Upon the expiration date specified on the EAD
- If exclusion or deportation proceedings are instituted or
- If the person is granted voluntary departure.
Note that none of these AUTOMATIC conditions involve the denial of a Form I-485 petition.
Thus, legally, USCIS must take some action to terminate an EAD once it has been granted and issued. In general, this requires the immigration services to officially issue what is called a "Notice of Intent to Revoke Employment Authorization." A Notice of Intent can be issued if the Form I-485 has been denied. However, the EAD remains legally valid until a Notice of Intent is issued and the immigration services make a final determination that the EAD should be revoked. In practice, it is extremely rare to ever see a Notice of Intent to Terminate an Employment Authorization Document. Therefore, if your I-485 is denied but your EAD has not expired, you can continue working.
Contact Yekrangi & Associates Today
For more information, contact the California Immigration Attorneys at Yekrangi & Associates today. You are not alone and we will fight for you. Yekrangi & Associates works to meet a higher standard. Our first goal is your satisfaction. Contact us at (949) 478-4963 to schedule a consultation or complete our convenient “Get Your Consultation” form here. We are located in Irvine, California.