Current regulations require U.S. Citizenship and Immigration Services (USCIS) to decide a pending Form I-765 Application for Employment Authorization within 90 days from the date of receipt. If USCIS fails to decide the pending application by day 90, federal regulations direct USCIS to issue an interim Employment Authorization Document (EAD) valid for a period not to exceed 240 days.[i]

 

Until 2006, local USCIS offices were authorized to issue interim EADs to eligible applicants on or after day 90 upon the applicant's in-person request. Currently, only USCIS Service Centers adjudicate and issue interim EADs. USCIS now requires an applicant for an interim EAD to make application using the following procedure:

 

1.      When the Service Center has not otherwise adjudicated the Form I-765 or issued an interim EAD by Day 90, the applicant must first use USCIS’ InfoPass appointment reservation program to schedule an appointment at the nearest USCIS field office. Information about InfoPass and appointment scheduling may be found at http://infopass.uscis.gov/.

 

2.      The USCIS field office will perform a Computer Linked Application Information Management System (CLAIMS) evaluation to determine whether: (a) the underlying application remains pending; (b) the Form I-765 remains unadjudicated; (c) any Request for Evidence (RFE) has been issued effectively re-starting or tolling the 90 day period; and (d) the applicant’s biometrics have been captured. 

 

3.      If the CLAIMS verification determines that the applicant's biometrics have not yet been captured, the local office will refer the applicant to a nearby USCIS Application Support Center (ASC) for a biometrics appointment. Failure to attend a biometrics appointment may suspend the applicant's entitlement to an interim EAD. 

 

4.      After CLAIMS verification, the local office will contact the Service Center with jurisdiction over the applicant's U.S. residence. At the point of contact between the local office and the Service Center, the Service Center will inherit full responsibility for adjudicating the interim EAD.

 

5.      If, at the time the applicant appears in the local office, the Service Center has not yet adjudicated the Form I-765 or produced an interim EAD, the applicant may make a status inquiry via telephone to the Service Center while in the local office. USCIS indicates that Service Centers intend to respond to telephone inquiries made while the applicant is in the local office within 30 minutes of the inquiry.

 

 

An applicant for an interim Employment Authorization Document should take the following to the USCIS InfoPass appointment:

 

1.         a new, completed Form I-765 Application for Employment Authorization;

 

2.         the original USCIS Form I-797 Receipt Notice regarding the pending Form I-765 application, and the original of any other USCIS correspondence regarding the pending Form I-765;

 

3.         the original USCIS Form I-797 Receipt Notice regarding the underlying pending application giving rise to eligibility for employment authorization, and the original of any other correspondence regarding the underlying application;

 

4.         the applicant's passports (old and new);

 

5.         the applicant' original Form I-94;

 

6.         two passport-type color photographs;

 

7.         proof of residence within the jurisdiction of the USCIS office, such as a State driver's license listing the applicant's U.S. address, or any other proof of address; and

 

8.         the applicant's current or expired EAD, if USCIS issued one to the applicant in the past.

 

 

The impact of a Request for Evidence (RFE) on an applicant's eligibility for an interim EAD depends on the type of evidence that the RFE requests. If USCIS issues an RFE for initial evidence – that is, evidence required by the federal regulations governing EAD applications or by the application instructions themselves – USCIS will re-set the 90 day adjudication clock. The 90 day clock will start all over again upon USCIS’ receipt of the applicant’s response to the RFE. However, if the RFE seeks additional evidence not otherwise required by the regulations or the application itself, USCIS will toll the 90 day period until receipt of the response to the RFE, at which time 90 day window will resume from the point of interruption. 

 

So, a RFE for initial evidence means that USCIS will start the 90-day adjudication cycle all over again from the time USCIS receives the evidence requested by the RFE. A RFE for additional evidence means the clock is suspended but continues from the point at which the clock was suspended when the RFE was issued. 

 

 

Current regulations indicate that only an RFE for initial evidence on the pending underlying application will suspend the applicant's interim benefits, including interim employment authorization.[ii]  The suspension will remain in effect until USCIS receives the applicant's response to the RFE.

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