Anything else I could do to push through I765?
 

Dear all,
I asked several times questions about I765 renewal. Now my old EAD is
approaching expiration and the new one has not come yet (the new one
reaches 90 day mark on Jan 16th, which is 6 days before the old one
expires). My employer has been pushing me to submit the new one and
told me if I don't do so before the old one's expiration date, they
will change my status to "inactive". I am very concerned because I am 9
month pregnant and my due date is around the expiration date. If the
baby comes when I am having the EAD gap, I may lose my health insurance
coverage. I don't even know what would happen to me and the baby if I
give birth here in the US without any health insurance coverage. I am
so concerned that I tried the followings in hope of getting the new EAD
within 90 days.
1. I called USCIS customer service and was told they'd put through a
service request. Someone should get back to me within 45 days (gosh!
45days! how fast that is!)
2. I made an infopass appointment and went to see an officer in my
local office but was told my case is in the Missouri National Benefit
Center. There is nothing they can do to push the case through.
3. I wrote a letter to the National Benefit Center telling them my
situation and requesting that they issue me the new card within 90days
last week.
4. I talked to my company's immigration lawyer. To my surprise, the
lawyer told me that because I am currently on maternity leave, the
company should not need an EAD card to maintain my status. But the HR
person doesn't think so. I cannot get the HR agree with the immigration
specialist.
5. I found on a website saying that the American Immigration Law
Foundation is calling a class action to sue the USCIS if they don't
decide an EAD application within 90 days. I am thinking about
participating but not sure how much this would help my case as the gap
between new and old EADs for me is only several days. Even if the law
suit goes successfully, if USCIS doesn't issue the new EAD on time for
me, it won't help much. My baby will not wait to come till after I win
the law suit.
Gosh, I don't know what else I could do. You can tell I am extremely
stressed. My old EAD will expire on Jan 22. I don't have many days
left. Please please share with me if there is anything else I could do
to push the I765 renewal through.
Thanks so much for reading through my long post. I'd greatly appreicate
any useful info and advice! Oh, by the way, my I485 is still pending
for FBI name check.
Best,
Hope

Re: Anything else I could do to push through I765?
 

I'm sorry no one has responded to you yet. One thing I believe you should do is get your employer to be more understanding. I could be mistaken because I don't have time to research it right now, but I believe there is law that states you can not be fired for not having the EAD once you are hired if it is pending. You have copies of your current EAD, and the copies of your paperwork that are pending, along with a copy of the law that states you are supposed to get one in 90 days. I would take that to the employer.

In addition, since by law, you must have an EAD in 90 days, make an Infopass appointment for day 91 after the limit and then go demand (politely) that you get the EAD since it has been over 90 days. I'm not sure if our situation was the same as yours, but my wife's EAD also went over 90 days. So we went to our local office and had them issue one right then. It took all day, but now with Infopass, maybe your wait will be shorter

Re: Anything else I could do to push through I765?
 

And what law is that? Interim EAD's are no longer issued by the district office. ASAIK, there is no law requiring them to do so.

There is little more that the OP can do but see if the HR department will accept her receipt of filing for the EAD as proof that she is awaiting the new card. While the receipt does not give her the legal right to work, it might help them conform to their immigration attorney's viewpoint.

Re: Anything else I could do to push through I765?
 

I'm assuming here that even if she is placed as inactive at work, she is entitled to COBRA and that will be an extension of her healthcare insurance and will cover her pregnancy.

Re: Anything else I could do to push through I765?
 

Hi:

Make an InfoPass appointment for day 91 -- although the local office can no longer generate an actual EAD, they can process it.
__________________
"Folinskyinla"
Certified Specialist
Immigration & Nationality Law
Calif. Bar Board of Legal Specialization

Re: Anything else I could do to push through I765?
 

Pls explain what you mean by no longer generate but they can process it? Does equate.

Also what constitutes day 91 ... 91 days from filing, 91 days from receipt, 91 days from biometrics?

Re: Anything else I could do to push through I765?
 

I'm not an attorney so don't know all the laws that apply, but I've read cases where termination of an employee who had a lawfully pending application, that was filed in time, were considered discrimination. Employers are fairly afraid of these kind of suits. In addition there are "document abuse" laws. One case was where a permanent resident did not receive their paperwork yet for the same reason, BCIS delays. The employee checked "permanent resident" and supplied the other correct documents such as a drivers license. The employer had no right to then ask for an EAD card and could be sued.

She might also try calling the hotline of the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) at 1-800-255-7688. Here is their website:

http://www.usdoj.gov/crt/osc/index.html

And here from the AILA:

"The regulation does not clarify for employers their own obligation where the document has lapsed, and the employee has not produced a reverification document. If the employer does nothing, he is subject to continuing to employ and paperwork violations. If he removes the employee from the payroll or terminates the employment, he could be subject to a discrimination violation. This is exactly what happened in a recent court case, where the employer who fired the employee for lack of employment authorization was held to have discriminated unfairly." This may now be clarified since it was lobbying for changes in the law several years ago.

It's muddy enough that an employer may wait given proof that the EAD was applied for and possibly even granted, though the card was not yet issued.

There is also the Ngwanyia v. Ashcroft class action lawsuit

-f

Re: Anything else I could do to push through I765?
 

Cannot agree with your first paragraph. Reading cases and equating it with law is not viable. Employers are not afraid of abuse suits for documentation but rather afraid of not adhering to the law. The first case you paraphrased doesn't make the employer wrong but the employee. The employee had no right to tick a box as PR if they had no proof of that status as they would only have been asked that question if their social security card said they need USCIS authorization to work.

Not going to fight you on this. Not worth the bandwidth. Hope can follow an attorney's recommendation and make an Infopass appointment. Although the attorney did not return to clarify his statement and has left it hanging open for guestwork on the parts of readers, the OP can certainly do as suggested.

Re: Anything else I could do to push through I765?
 

You obviously didn't read the suit I paraphrased since it was indeed the employer that was liable and not the employee. The employer violated that document regulation. But you can have the last word Rete, you always do, and of course are always right. Hopefully the person in need of help will find the right advice from a professional and has more options now.

-f

Re: Anything else I could do to push through I765?
 

Just wanted to add my personal experience to the discussion. I have been without a valid EAD since 12/15. My receipt date for my application is 10/31. Both the district office and the helpline have told me that day 90 is 90 days from the receipt date.

As far as working is concerned my employer has put me on a personal leave of absence where I am not being paid and I receive no benefits. I am eligible for COBRA. I am allowed no contact with work and am not allowed to work unpaid either. In order to return to work I will need the actual physical EAD as it is the one document I am eligible for that is on the list of required documentation for verifying employment status. This is the advice they received from the large immigration practice they retain.

Re: Anything else I could do to push through I765?
 

Just to clarify, did your employer tell you that you need an EAD, or are you saying that the EAD is the only document you have which fulfills the I-9 requirements? Your employer can not tell you what documents they will accept for the I-9... and it says so right on the I-9.

Ian

Re: Anything else I could do to push through I765?
 

Again, I'm stymed by all of this. You are not authorized to work without USCIS authorization. For most people who are awaiting adjustment their social security card says just that. In those instances the employer is well within its rights to ask for an EAD to verify the employee's right to work.

What is everyone finding hard about this and why is everyone so intent on allowing the employer to break the law.

Re: Anything else I could do to push through I765?
 

FR,

Several observations:
- The quote you give from the AILA is a rather superficial statement,
giving only the decision of a recent court case without the reasons
underlying the decision. Be careful to not assume what those reasons
might be.
- "The regulation does not clarify for employers their own obligation
where the document has lapsed, and the employee has not produced a
reverification document. ..." Note that when the EA document lapses,
the EA status it represents has also lapsed (unlike the I-551).
- "... This is exactly what happened in a recent court case, where the
employer who fired the employee for lack of employment authorization
was held to have discriminated unfairly." If you read the USCIS Manual
for Employer's you will see many cautions about treating all employees
the same when documenting the employees' employment authorization
status. As I mentioned in my first point above, the AILA summary does
not say what the issue of discrimination was. It is quite possible
that the discrimination is not that the employee was terminated because
their EA had expired, but that the employee was terminated when other
employees in the same situation had not been terminated. Keep in mind,
there are two separate and distinct issues here - complying with EA
documentation laws and complying with discrimination laws. An employer
who is inconsistent on the first issue may be violating the second.

Regards, JEff

FlightRisk wrote:
> > Dear all,
> > I asked several times questions about I765 renewal. Now my old EAD is
> > approaching expiration and the new one has not come yet (the new one
> > reaches 90 day mark on Jan 16th, which is 6 days before the old one
> > expires). My employer has been pushing me to submit the new one and
> > told me if I don't do so before the old one's expiration date, they
> > will change my status to "inactive". I am very concerned because I am
> > 9
> > month pregnant and my due date is around the expiration date. If the
> > baby comes when I am having the EAD gap, I may lose my health
> > insurance
> > coverage. I don't even know what would happen to me and the baby if I
> > give birth here in the US without any health insurance coverage. I am
> > so concerned that I tried the followings in hope of getting the new
> > EAD
> > within 90 days.
> > 1. I called USCIS customer service and was told they'd put through a
> > service request. Someone should get back to me within 45 days
> > (gosh!
> > 45days! how fast that is!)
> > 2. I made an infopass appointment and went to see an officer in my
> > local office but was told my case is in the Missouri National
> > Benefit
> > Center. There is nothing they can do to push the case through.
> > 3. I wrote a letter to the National Benefit Center telling them my
> > situation and requesting that they issue me the new card within
> > 90days
> > last week.
> > 4. I talked to my company's immigration lawyer. To my surprise, the
> > lawyer told me that because I am currently on maternity leave, the
> > company should not need an EAD card to maintain my status. But the
> > HR
> > person doesn't think so. I cannot get the HR agree with the
> > immigration
> > specialist.
> > 5. I found on a website saying that the American Immigration Law
> > Foundation is calling a class action to sue the USCIS if they don't
> > decide an EAD application within 90 days. I am thinking about
> > participating but not sure how much this would help my case as the
> > gap
> > between new and old EADs for me is only several days. Even if the
> > law
> > suit goes successfully, if USCIS doesn't issue the new EAD on time
> > for
> > me, it won't help much. My baby will not wait to come till after I
> > win
> > the law suit.
> > Gosh, I don't know what else I could do. You can tell I am
> > extremely
> > stressed. My old EAD will expire on Jan 22. I don't have many days
> > left. Please please share with me if there is anything else I could
> > do
> > to push the I765 renewal through.
> > Thanks so much for reading through my long post. I'd greatly
> > appreicate
> > any useful info and advice! Oh, by the way, my I485 is still
> > pending
> > for FBI name check.
> > Best,
> > Hope
>
> I'm not an attorney so don't know all the laws that apply, but I've read
> cases where termination of an employee who had a lawfully pending
> application, that was filed in time, were considered discrimination.
> Employers are fairly afraid of these kind of suits. In addition there
> are "document abuse" laws. One case was where a permanent resident did
> not receive their paperwork yet for the same reason, BCIS delays. The
> employee checked "permanent resident" and supplied the other correct
> documents such as a drivers license. The employer had no right to then
> ask for an EAD card and could be sued.
>
> She might also try calling the hotline of the Office of Special Counsel
> for Immigration-Related Unfair Employment Practices (OSC) at 1-800-255-
> 7688. Here is their website:
>
> http://www.usdoj.gov/crt/osc/index.html
>
> And here from the AILA:
>
> "The regulation does not clarify for employers their own obligation
> where the document has lapsed, and the employee has not produced a
> reverification document. If the employer does nothing, he is subject to
> continuing to employ and paperwork violations. If he removes the
> employee from the payroll or terminates the employment, he could be
> subject to a discrimination violation. This is exactly what happened in
> a recent court case, where the employer who fired the employee for lack
> of employment authorization was held to have discriminated unfairly."
> This may now be clarified since it was lobbying for changes in the law
> several years ago.
>
> It's muddy enough that an employer may wait given proof that the EAD
> was applied for and possibly even granted, though the card was not
> yet issued.
>
> There is also the Ngwanyia v. Ashcroft class action lawsuit
>
> -f
>
> --

Re: Anything else I could do to push through I765?
 

They told me that without the EAD they were not legally allowed to employ me. I went into it in some detail with them as I am hoping to be able to go back with just the approval email from CIS when it comes. So far no dice they still need the actual card.

Jim

Re: Anything else I could do to push through I765?
 

This is true, to my knowledge. It is the actual EAD card which holds your work authorization, not the NOA from USCIS.

Rene