Effective October 2, USCIS will require filing fees for I-765 and I-131 applications filed based on an I-485 adjustment of status application. These applications, when approved, provide the applicant with an Employment Authorization Document (EAD) and Advance Parole (AP), which enable the holder to work in the U.S. and travel internationally without an underlying nonimmigrant visa while their I-485 application is pending.

Since 2007, there has been no filing fee associated with the I-765 and I-131 applications if they were submitted based on a pending or concurrently-filed adjustment of status application – the EAD/AP fees were considered “bundled” in the single I-485 filing fee, and renewals of the EAD/AP card also did not require a fee. For this reason, most adjustment of status applicants have applied for the EAD and Advance Parole, even if they continued to maintain and use their nonimmigrant visa.

However, beginning October 2, the fees are no longer bundled, and applying for an EAD and AP will now require fees in the amounts of $550 and $590, respectively. These are in addition to the I-485 fee, which will be $1,130 effective October 2 (for all applicants, including children under 14).

Many applicants will opt to file the I-765 and I-131 applications anyway, as the EAD/AP card is one of the main advantages of applying for adjustment of status. However, given the additional $1,140 cost, applicants may want to take the following into consideration:

Do I need to apply for both?

No. The I-765 and I-131 are separate applications that provide separate benefits, for work authorization and international travel. However, if they are filed together based on an I-485 application, USCIS typically issues one EAD/AP “combo card” (which looks like a normal EAD, but is endorsed with “Serves as I-512 Advance Parole” at the bottom).

An applicant can always choose to apply for one but not the other, and in doing so can save $550 or $590. An applicant who wants an EAD card, but does not intend to travel internationally for example, can submit just the I-765 application and would receive an EAD card that enables him/her to work without the need of nonimmigrant status, such as H-1B or L-1. An applicant who wants a travel document but has no intention of working, such as children applying as derivative applicants of their parents, can file the I-131 application on its own, and would receive an I-512L document (a page that looks similar to an I-797 Approval Notice), which acts as their Advance Parole.

When is it necessary to apply for the EAD/AP?

The EAD should be filed when the applicant does not intend to maintain the nonimmigrant status that currently authorizes him/her to work. For example, an H-1B holder whose current I-94 will expire, and whose H-1B employer does not intend to file for an extension, would need the EAD in order to continue working. The expiration date of the current I-94 and the potential processing time of the EAD will need to be taken into account to avoid a gap in work authorization.

An application for Advance Parole should also be filed if international travel is expected – even in the applicant plans to maintain nonimmigrant status in the U.S., the lack of visa appointments at consulates during the COVID pandemic may make it difficult to apply for a visa stamp if travel is needed. The Advance Parole would enable the holder to travel without obtaining a visa from a consulate – however, the applicant should be aware that when entering the U.S. using Advance Parole, they are no longer in H/L or other nonimmigrant status, and a later re-entry with a visa would be needed to restore the nonimmigrant status.

When is it NOT necessary to apply for the EAD/AP?

If the applicant is employed and plans to maintain valid nonimmigrant status, such as H-1B or L-1, that allows work authorization, the EAD is optional. Likewise, if the applicant does not intend to work, such as derivative family members, the EAD is not necessary.

The Advance Parole is also not necessary if the applicant does not intend to travel internationally until the green card is issued, or plans to travel using their nonimmigrant visa.

Can I maintain nonimmigrant status and also have an EAD/AP?

Yes. The EAD/AP is optional if the applicant plans to maintain their nonimmigrant status until the I-485 application is approved, but there is no harm in applying for it, besides the additional cost that applies after October 2. It can be useful to have the EAD/AP as a backup in the event that an extension of status application with USCIS or a visa renewal with the consulate is denied. 

Can I apply for the EAD and/or AP later?

Yes, the EAD and/or AP can be filed at any time while the I-485 application is pending using the receipt notice; it does not need to be submitted concurrently.

Can I file before October 2 to avoid the new filing fees?

If your priority date is current according to the September 2020 visa bulletin, or if your I-485 application has already been filed and is pending, you may file the I-765 and I-131 applications before October 2 to take advantage of the current structure, which does not require fees for the EAD/AP.

Please note that if your priority date becomes current in October 2020, and you plan to apply for the EAD/AP according to the old fee structure (to avoid the additional $1,140 cost), the postmarking and delivery of the package must be done carefully to avoid rejection. To submit I-765 and I-131 applications without the new fee, the package must be postmarked by October 1, 2020, and cannot be delivered to USCIS prior to October 1 (for the October visa bulletin to apply). A postmark after October 1 will result in rejection of the forms if the additional new filing fees are not included, and delivery of the package prior to October 1 will result in rejection of the entire I-485 and accompanying applications.

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Applicants can discuss with their attorney to decide whether applying for the EAD and/or AP is advisable, based on their specific situation. If you wish to schedule a consultation with one of our attorneys to determine if filing for the EAD/AP is right for you, click here.

By: Rebecca Chen

Rebecca is a partner and senior practice manager at Reddy & Neumann and represents clients in employment-based nonimmigrant and immigrant visa cases. She advises clients throughout the visa application process, from initial filing, responding to various requests for evidence, and processing at overseas consulates.