Common misconceptions about obtaining an Employment Authorization Document

Many noncitizens present in the United States hear information related to obtaining an Employment Authorization Document, “EAD” that is either not true or partially true.

A noncitizen will not qualify for an EAD simply by marrying a U.S. Citizen. The noncitizen must qualify for legal permanent resident status or a green card through marriage to a United States Citizen. However, not all noncitizens will qualify for a green card process that will lead to an EAD. First, the point of applying for a green card is that the green card itself will grant authority to the noncitizen to permanently live and work in the United States which means that once the green card application is approved there won’t be a need for an EAD. We discuss options in obtaining a green card through a spouse here.

The EAD comes into play in these cases by the fact that it is issued before the green card case is adjudicated to allow the noncitizen to legally work in the United States while awaiting processing of the green card case.

In order to qualify for the process known as Adjustment of Status which is the process in applying for the green card in the United States, the noncitizen must either be present in the United States in a lawful immigration status, or if being petitioned by a U.S. Citizen spouse, must, then demonstrate that the noncitizen was lawfully permitted to enter the United States by an immigration officer even if the status later expired.

This exception only exists for those noncitizens who are being petitioned by U.S. Citizen spouses, U.S. Citizen sons or daughters or where a U.S. Citizen parent is petitioning for a child. We discuss the Adjustment of Status Process here.

Otherwise, the noncitizen must either qualify under another exception to be able to apply for a green card from within the United States, or maintain lawful immigration status when a petition is filed by another qualifying family member or employer.

If not in lawful immigration status or where the noncitizen cannot qualify for adjustment of status, then the noncitizen will need to look at applying for the green card from a U.S. consulate or embassy from his country of origin. In this circumstance, there will be no EAD for the noncitizen and his only authorization to work and live in the United States is when he obtains the actual green card after the consular processing case is completed and approved. We discuss the consular processing method of applying for a green card here. Furthermore, if the noncitizen was present in the United States without status, he will need to look into whether he will be subject to an immigration bar from applying for an immigration benefit based on the time he was present without status. We discuss the immigration bars based on unlawful presence here.

Similar to the misconception about obtaining an EAD through a spouse, having a United States Citizen Child does not automatically qualify a noncitizen for an EAD. In order to qualify for an EAD from a child, the noncitizen must also be petitioned for a Green Card by a U.S. Citizen son or daughter 21 years of age and older. Furthermore, as mentioned in the case of Green Card case petition filed by a spouse, the noncitizen must also qualify for a Green Card through the Adjustment of Status process to obtain a Green Card. If not, then no EAD since the noncitizen will need to apply for the Green Card through consular processing.

Again, not entirely true. First there is no process to apply for an EAD with the United States Citizenship and Immigration Service, “USCIS” simply based on being present in the United States for ten years. The only process that is based on residing in the United States for ten years is a process available to noncitizens present without status in the United States who are facing removal from the United States known as Cancellation of Removal.

We discuss removal proceedings for noncitizens present in the United States without status here. Only noncitizens facing removal from the United States will be eligible and permitted to submit an application before the immigration judge presiding over his case if the noncitizen can demonstrate an uninterrupted period of ten years present in the United States before being placed in removal proceedings. Furthermore, the noncitizen will need to demonstrate what is known an exceptional and extremely unusual hardship a U.S. Citizen or legal permanent resident spouse, parent or child will suffer if removed from the United States.

Finally, the noncitizen must also demonstrate that he has not committed certain criminal offenses that will disqualify him from applying for this benefit. Only if the noncitizen qualifies for Cancellation of Removal will he be permitted to apply for an EAD after submitting the Cancellation of Removal application.

It is also important to note that even if the noncitizen has qualifying family members, ten years and no disqualifying criminal history, a judge can easily deny the application simply because he does not believe the noncitizen meets the extremely high hardship threshold or because out of his discretion, the judge does not believe that the noncitizen deserves the benefit. As result, these cases are very difficult to win and consideration of undergoing this process simply for the benefit of an EAD may not be a good idea because of the heavy risk of removal that is involved.

Again, not completely true. First, Asylum relief is protection granted by the U.S. government to noncitizens unable or unwilling to return to their country because the noncitizen has suffered or is likely to suffer some form of persecution. We discuss Asylum in our blog here. 

Simply applying for asylum does not guarantee eligibility for an EAD. First, the noncitizen must submit the asylum application before USCIS and then wait to see how long USCIS will take to adjudicate the Asylum application. If 180 days pass with the case still processing then perhaps the noncitizen will be eligible to apply for the EAD.

However, some important issues to note. The issue of eligibility was complicated by the former Trump administration creating new and more difficult policy bars to eligibility including cut-off dates eliminating certain noncitizens from applying for asylum who entered the U.S. under certain circumstances after a certain date. Most of these policy changes have been suspended because of court litigation that is pending in Federal Courts. Although, it is expected that the current Biden administration will not pursue these policies, as long as the court litigation continues there is still a chance a court order may require enforcement of the Trump era policies down the road.

Finally, as mentioned, qualifying for asylum protection is not straightforward or easy. Therefore, significant consideration should be given whether to present such an application because even if the EAD is acquired, if the case is eventually denied, will result in the case being sent to an immigration court for an immigration judge to review the case. Although the purpose of the referral is for a judge to review the denial by USCIS, a judge can agree with the denial and order the noncitizen’s removal from the United States. The point to take away then is that it is not worth it to bring forth a weak claim just to obtain an EAD because the price to pay of removal may not be worth it.

The key is not to be dissuaded from seeking an EAD, but just be aware that EADs don’t usually come easily or automatically. Typically, the EAD comes as a result of a noncitizen qualifying for another immigration benefit, but careful consideration is necessary to determine whether applying for that benefit is worth any risk that may arise from applying and potentially be denied of the benefit. In reality, a noncitizen should be applying for a benefit because of the benefit itself, not so much the potential of obtaining an EAD.