Second EAD and AP in the Same Category Getting Denied by USCIS

Due to processing backlogs and fluctuations in visa availability, many employment-based Adjustment of Status (AOS) applicants have resorted to filing a second AOS application in a different eligibility category with the hope of more quickly securing a Green Card. Applicants have also been filing a second I-765 for employment authorization (EAD) and I-131 for travel authorization (AP) concurrently with their second AOS application.

Earlier this year, we saw USCIS issue some EAD/AP cards even where the applicant already had an approved EAD/AP from their previous AOS application. However starting in February 2022, USCIS began decoupling the I-131s and I-765s that were submitted concurrently with I-485s to reduce EAD processing times.

After USCIS started issuing separate EAD cards that did not include AP, USCIS also started issuing I-131 denials where applicants already had an approved EAD/AP combo card from their initial AOS application. USCIS lists the reason for denial as being that the benefit has already been granted, or even that it is too soon to apply for a renewal of the applicant’s EAD/AP. This is happening because an approved EAD/AP based on a pending AOS application is not tied to a particular application or eligibility category. Rather, the EAD/AP is valid for the period shown on the card, as long as there is a pending I-485.

Applicants receiving these I-131 denial notices should not be concerned, as the denial of the later-filed I-131 does not affect the validity of their already approved AP filed with their initial AOS application. These denials also do not affect applicants’ ability to apply for EAD/AP renewal throughout the pendency of their AOS application (once they are within the appropriate period to apply for a renewal of their EAD/AP).

Now that USCIS is correctly implementing its own policy, the I-131 and I-765 filed with the second I-485 application will be viewed as renewal applications of the EAD/AP. As such, they are being denied because renewal applications of EAD/AP may be filed no earlier than 180 days prior to the current document’s expiration date.

In order to properly submit an EAD/AP application based on a pending I-485 application if an applicant already has an approved EAD/AP card, it must either (1) be submitted no earlier than 180 days before the existing EAD/AP card expires; or (2) the applicant provides evidence that their previous Advance Parole Document was lost or stolen.

If you have questions regarding filing an Adjustment of Status Application, please feel free to contact us at ILBSG. We put our extensive experience and expertise to work for you to ensure you get the right advice.