Many T nonimmigrants applying for permanent residence may face a gap between the expiration date printed on their original Employment Authorization Document and the arrival of a new card. Whether they may continue working during that gap depends on whether they are the principal T-1 applicant or a derivative family member.

What do “I-485,” “I-765,” “EAD,” and “C09” mean?

• Form I-485 is the application for adjustment of status, commonly called a green-card application.
• Form I-765 is the application for employment authorization.
• An EAD is the physical Employment Authorization Document, commonly called a work permit.
• C09 is the employment-authorization category for a person with a pending Form I-485.

C09 work permits are taking more than a year

Most T nonimmigrants become eligible to apply for permanent residence after completing three years in T status. Some may qualify earlier if the investigation or prosecution of the trafficking has been completed.

Because T status is normally granted for four years, a person who applies after completing three years often has only about one year remaining on the original T-status work permit.

USCIS is presently taking more than a year to process many C09 employment-authorization applications. For applications handled through Service Center Operations, USCIS has recently reported a range of approximately 12.5 to 15.5 months. Processing times change and are not guarantees. Current estimates can be checked on the USCIS Processing Times page.

This means that even when a T nonimmigrant files the I-485 and I-765 at the earliest available opportunity, the original EAD may expire before USCIS issues the new C09 card.

The consequences are different for T-1 principals and derivative family members.

T-1 principals: status and employment authorization continue automatically

A T-1 principal is the trafficking survivor whose own Form I-914 was approved.

When a T nonimmigrant properly files Form I-485 while still in valid T status, USCIS automatically extends the person’s T status while the I-485 remains pending. A separate application to extend T status is not required. This protection appears in 8 C.F.R. § 214.212(h).

T-1 principals are also authorized to work “incident to status.” This means that their authorization to work comes from their valid T-1 status, not merely from the expiration date printed on the plastic EAD. The governing regulation is 8 C.F.R. § 274a.12(a)(16).

Therefore, when a timely filed I-485 automatically extends the person’s T-1 status, the T-1 principal’s employment authorization also continues. The expiration of the plastic EAD does not necessarily mean that the person must stop working.

Proving continued authorization to an employer

The practical problem is documentation. Employers may be unfamiliar with this rule and may assume that an expired EAD always means that employment authorization has ended.

The T-based I-485 receipt notice contains a section titled “Employment Authorization.” It explains that a T-1 principal may use the following combination as evidence of continued employment authorization:

• The Form I-485 receipt notice; and
• The Form I-94 showing T-1 status.

The I-94 is frequently attached to the bottom of the Form I-914 approval notice. The receipt notice states that this combination provides evidence of employment authorization for two years after the expiration date on the I-94.

An employee may also need to provide an acceptable identity document. Employers should follow the instructions on the I-485 receipt notice and the USCIS Handbook for Employers, M-274. Employers generally must allow an employee to choose which acceptable Form I-9 documents to present and should not demand a particular document simply because the employee’s situation is unfamiliar.

A T-1 principal whose EAD is approaching expiration should keep these documents together:

1. The Form I-914 approval notice containing the T-1 I-94;
2. The Form I-485 receipt notice;
3. The current or expired EAD; and
4. A copy of the applicable USCIS and regulatory guidance.

If an employer does not recognize the extension, the employee should ask the employer’s human-resources or Form I-9 compliance department to review the “Employment Authorization” section of the I-485 receipt notice and the USCIS employer handbook.

Driver’s licenses are governed by state rules

A person may remain in valid T status and be authorized to work even though the date printed on the EAD has passed. However, state driver-license agencies do not all handle this situation in the same way.

Each state has its own laws, document requirements, renewal periods, and procedures for verifying immigration information. Some motor-vehicle agencies may recognize the I-914 approval notice, I-94, and I-485 receipt notice. Others may require additional verification through the federal SAVE system or may initially be unable to verify the automatic extension.

When applying for or renewing a driver’s license, a T-1 principal should consider bringing:

• The I-914 approval notice and attached I-94;
• The I-485 receipt notice;
• The current or expired EAD;
• A passport or other identity document;
• Proof of address; and
• A copy of the relevant regulation or a letter from the person’s attorney.

If the first employee cannot verify the extension, the applicant may ask for supervisory review or additional SAVE verification. Because state rules vary, clients should obtain advice about the procedures in their particular state.

T-2 and T-3 derivatives face a more serious problem

A T-2 derivative is generally the spouse of a T-1 principal. A T-3 derivative is generally the child of a T-1 principal.

Like the principal applicant, a T-2 or T-3 derivative who properly files Form I-485 while still in valid T status receives an automatic extension of T status under 8 C.F.R. § 214.212(h).

However, derivative T nonimmigrants are not authorized to work incident to status. Under 8 C.F.R. § 274a.12(c)(25), T-2, T-3, T-4, T-5, and T-6 derivatives must possess a valid, unexpired EAD to work.

Their I-485 receipt notice extends their T status, but it does not automatically extend their employment authorization. The combination of an I-485 receipt notice and an expired EAD is not sufficient for a T derivative to continue working.

There is another important complication: the original derivative EAD is generally issued under category C25, while the new EAD requested with the I-485 is under category C09. Filing a C09 application does not automatically extend an expiring C25 card.

Unfortunately, USCIS is sometimes taking longer to issue the new C09 EAD than the time remaining on the derivative’s original T status and C25 work permit. As a result, many T-2 and T-3 derivatives may experience a period during which:

• Their T status remains valid because of the pending I-485;
• They may lawfully remain in the United States; but
• They cannot work because their C25 EAD has expired and USCIS has not yet approved the C09 EAD.

This distinction is frustrating but important: an extension of immigration status is not always an extension of employment authorization.

Plan early

T nonimmigrants should file their I-485 and C09 I-765 as soon as they become eligible and the applications are ready. Filing early does not guarantee that the new EAD will arrive before the old one expires, but unnecessary delay increases the likelihood of a gap.

Clients should also:

• Keep every USCIS receipt and approval notice;
• Check the expiration dates on each family member’s I-94 and EAD;
• Track each I-765 separately using USCIS Case Status Online;
• Remember that every family member has a separate receipt number; and
• Contact their attorney before the current EAD expires if the new card has not arrived.

This information is general and may change. Individual cases, filing dates, EAD categories, state driver-license rules, and USCIS policies may produce different results.