EAD holders can work even if card expires, Woodruff says

Attorney Stephen Woodruff contends that CNMI long-term residents whose Employment Authorization Documents have expired are still legally entitled to work because their status is the functional equivalent of a CNMI only green card.

In an interview with Marianas Press last Feb. 21, Woodruff said the law governing CNMI long-term residents is “very clear actually.”

“The law explicitly says that the status continues until you get the status. The status continues until one or the other of two events,” he said, referring to ceasing residency in the CNMI or becoming a regular U.S. lawful permanent resident.

“Because the status is permanent, and it says lawfully admitted, and that’s the language that’s used there, which means there’s no way to construe that language other than that this is the functional equivalent of a CNMI only green card,” Woodruff said.

He said the confusion stems from the way U.S. Citizenship and Immigration Services chose to document the status.

“USCIS, in implementing the law, they chose to use the EAD card as a way to document the approval of that status,” he said. “They chose to give it a category of C37 that they put on the card. And they chose to give it a five-year expiration date. Those are all arbitrary decisions made by USCIS. They have nothing to do with the status.”

Woodruff stressed that employment authorization for CNMI long-term residents is incident to status.

“The law also says, the law itself says that they’re authorized for employment in the Commonwealth incident to status,” he said. “That means that as long as you have the status, you have a legal right to work. You are authorized for employment.”

“What does that mean?” Woodruff asked. “It means that even if your card expires, you’re still legally entitled to work.”

He said employer re-verification requirements are regulatory, not statutory.

“When you get into the employer re-verification process, the regulation says that if your employment authorization expires, the employer has to re-verify your authorization,” Woodruff said. “But the condition of that is that the employment authorization has to actually be expiring. And it’s not, if you’re a CNMI long-term resident... Which means that there’s no legal basis for employer re-verification.”

Woodruff added that requiring additional documentation when it is not legally required could raise discrimination concerns under the Immigration and Nationality Act.

He also criticized a recent interim final rule ending automatic EAD extensions.

“I believe that that rule is actually arbitrary and capricious and irrational and inconsistent with the U.S. Constitution,” he said, arguing that automatic extensions were created because of USCIS processing delays.

But he maintained that the interim rule “doesn’t actually apply, in my opinion, at all to CNMI long-term residents,” noting that their employment authorization “is not for a fixed term.”

“In my opinion, they’re lawfully entitled to work. Nobody is violating the law by continuing to work,” Woodruff said.

He encouraged long-term residents to renew their cards for documentation purposes, but drew a distinction between documentation and authorization.

“They’re renewing their documentation by filing a new I-765 and asking for a new card. That’s great,” he said. “But my view is that that’s not necessary for employment authorization.”

As for those who have lost jobs after their EAD cards expired, Woodruff said, “It’s wrong, but that’s what happened. It shouldn’t happen.”

He added, “They should stand up for their rights. They should fight for their rights,” he said. “They should not be intimidated based on the argument that their EAD card has expired.”