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A non-American individual, waiting for an I-485 to be approved, has an EAD and works in the United States. His EAD expires on November 15. The individual filed for an EAD extension on September 15, and still hasn't received the I-797C Notice of Action for the EAD extension from the USCIS. The individual qualifies for the Limited 180-Day EAD Extension Rule (mirror).

On November 15, if the individual still hasn't received the I-797C Notice of Action, is he forbidden to work in the United States?


The individual is aware that he may compact the USCIS to inquiry about the non-delivery: https://egov.uscis.gov/e-request/displayNDNForm.do (mirror):

Non-Delivery of Notice

Did you miss a notice about your pending case with USCIS? While your case is pending, we may mail you notices such as a request for additional evidence or a decision notice. Our customers sometimes report to us that these notices are not received. Check your case status online to see whether we mailed you a notice. For selected forms, you can send us an inquiry if you did not receive a notice that we mailed you.

NOTE: Do not submit an inquiry if you recently filed an application. You should receive a receipt notice within 30 days after filing at a Service Center or 10 days after filing at a Lockbox.


The I-9 doesn't seem to mention the Limited 180-Day EAD Extension Rule:

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(see expiration date section. I have no idea why the USCIS has this tendency of disabling copying texts from their forms.)

(unless an I-797C Notice of Action for the EAD contains some new expiration date)

  • I think the bigger issue is that no employer will let him work as an employee, because he doesn't have the documents to satisfy the I-9 requirements, so unless he is working as a contractor or something that doesn't require filling out I-9, the question is moot. – user102008 Oct 9 '17 at 23:59
  • @user102008 Thanks, I have added some details regarding the I-9. I'm also interested in the case where the individual doesn't have to file an I-9. – Franck Dernoncourt Oct 10 '17 at 0:07
  • "The I-9 doesn't seem to mention the Limited 180-Day EAD Extension Rule" It's mentioned in this fact sheet and in the Handbook for Employers M-274 chapter 4.2. It's considered an unexpired EAD which is a List A document. – user102008 Oct 10 '17 at 0:31
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Assuming his application actually got there (didn't get lost in the mail), and it hasn't been rejected without his knowledge, I believe it would be legal for him to work, but he doesn't have proof of it, so he won't be able to satisfy the I-9 requirements for any employer to hire him as an employee.

The regulation regarding automatic extension of EADs says the employment authorization is automatically extended as long as the renewal application is filed before the expiration date of the EAD.

8 CFR 274a.13(d)(1):

Automatic extension of Employment Authorization Documents. Except as otherwise provided in this chapter or by law, notwithstanding 8 CFR 274a.14(a)(1)(i), the validity period of an expiring Employment Authorization Document (Form I-766) and, for aliens who are not employment authorized incident to status, also the attendant employment authorization, will be automatically extended for an additional period not to exceed 180 days from the date of such document's and such employment authorization's expiration if a request for renewal on a form designated by USCIS is:

(i) Properly filed as provided by form instructions before the expiration date shown on the face of the Employment Authorization Document, or during the filing period described in the applicable Federal Register notice regarding procedures for obtaining Temporary Protected Status-related EADs;

(ii) Based on the same employment authorization category as shown on the face of the expiring Employment Authorization Document or is for an individual approved for Temporary Protected Status whose EAD was issued pursuant to 8 CFR 274a.12(c)(19); and

(iii) Based on a class of aliens whose eligibility to apply for employment authorization continues notwithstanding expiration of the Employment Authorization Document and is based on an employment authorization category that does not require adjudication of an underlying application or petition before adjudication of the renewal application, including aliens described in 8 CFR 274a.12(a)(12) granted Temporary Protected Status and pending applicants for Temporary Protected Status who are issued an EAD under 8 CFR 274a.12(c)(19), as may be announced on the USCIS Web site.

When it is filed is determined by the "received date" of the application, which is when USCIS officially received it. It will say on the receipt what the "received date" was, so he won't absolutely know that it was before the expiration of your EAD until he gets the receipt. However, the "received date" is generally no later than one or two days after the mail was actually delivered to USCIS, so if he mailed the application two months early, and especially if he had tracking on the mail to know that it arrived well before the EAD expiration date, he can pretty much be sure that when he gets the receipt, it will show that the "received date" of the application will be before the EAD's expiration date, which means he was working legally.

However, for completing the I-9 as an employee, either as a new hire or for reverification since his previous employment authorization ended, he will not be able to satisfy the documentary requirements until he gets the receipt.

The chapter (Chapter 4.2) of the Handbook for Employers M-274 which talks about how to handle automatic extension of EADs says that expired EAD in combination with the I-797C receipt for the renewal application serves as a List A document for the I-9 documentary requirements. Without the receipt, he doesn't have the documents to satisfy this. In addition, the employer is required to verify certain information on the receipt in order to accept the automatic extension, which cannot be done if he doesn't have the receipt: 1) that the "received date" on the receipt is before the expiration date of the EAD, and 2) that the category on the receipt matches the category of the EAD.

  • Thanks for the thorough answer! It is surprising to me that filled date is when USCIS started processing, and not stamp date. In my birth country, France, typically the stamp date is the reference (which makes more sense imho since the applicant has much more control over it). If someone can confirm the first paragraph, that would be great! – Franck Dernoncourt Oct 10 '17 at 16:40
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In case your I-485 has been approved, but you are waiting to receive the green card and your EAD+advanced parole is expired, you may schedule an appointment with your local USCIS (a.k.a. field office) to obtain an I-551 stamp in your passport (permanent resident status approved). This will allow you to work and travel abroad (specifically, to re-enter the US). You may schedule an appointment with your local USCIS on infopass: https://my.uscis.gov/appointment. Note that the obtention of the I-551 stamp is at the discretion of the USCIS officer, from what I have been told by immigration lawyers.

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