I-765: How to Apply For Employment Authorization
If you are non-US citizen living in the United States and would want to take on paid employment, you may need to apply for employment authorization by filing Form I-765.
In this practical guide to Form I-765, we explain what form I-765 is and who needs to file it. We also look at various other Form I-765 related matters, including the filing and renewal or replacement process.
What is Form I-765?
Form I-765, Application for Employment Authorization, is the form that must be filed by certain noncitizens in the United States to request permission to accept employment or to show evidence of authorization to accept employment in the US. This is essentially an application for an Employment Authorization Document (EAD), where an EAD (Form I-766) is official proof that you may need to provide to any prospective US employer to be able to evidence your legal entitlement to undertake gainful employment with them.
By law, US employers must check to ensure that all employees, regardless of an individual’s citizenship or national origin, are authorised to accept work in the United States. To comply with the relevant law, employers must verify both the identity and employment authorisation of new recruits. They must also complete, in conjunction with the employee, Form I-9 (Employment Eligibility Verification) and retain this for their records, where a valid EAD is one of the forms of acceptable proof for the purposes of completing Form I-9.
As any failure on the part of an employer to comply with the strict Form I-9 requirements for any employee they hire can result in hefty penalties, it is not surprising that US employers take employment authorization seriously. This means that without proof of your permission to work in the US, you will struggle to work. Equally, if you accept unauthorized employment, you run the risk of being both deported and banned from re-entering the US.
Who needs to file Form I-765?
Certain noncitizens who are in the US may file Form I-765 to request an EAD, while other noncitizens whose immigration status authorizes them to work in the US without restrictions may also use Form I-765 to request an EAD that shows such authorization.
In many cases, you may already have employment authorization as a direct result of your immigration status. This could be where you have permission to be in the US specifically for the purposes of work, such an H-1B or L-1 visa, where your nonimmigrant visa will be sufficient proof of your entitlement to work. Equally, if you have been admitted to the United States as a lawful permanent resident, your green card (Form I-551, Permanent Resident Card) automatically constitutes evidence of employment authorization.
In other cases, dependent on your category of visa, you may be otherwise authorised to work incident to status. The term “incident to status” means that employment authorization is granted along with your underlying immigration status, instead of having to apply and be approved for work authorisation in order to accept employment. For example, certain E and L nonimmigrant dependent spouses are considered employment authorized incident to status. Asylees and refugees are also employment-eligible incident to status, as well as being authorized to work indefinitely because their immigration status does not expire.
If you are authorized to work by reason of your underlying immigration status, you may already have sufficient proof of your employment authorization. For example, when admitted to the US or applying to adjust your status, you will be issued with Form I-94 (Arrival/Departure Record), together with a specific Class of Admission (COA). In most cases, your COA should make it clear that you are entitled to work. For example, E and L-2 spouses will now be issued with a COA of E-1S, E-2S or L-2S, where the “S” annotation distinguishes dependent spouses from dependent children. As children are not employment authorized incident to status, the “S” will indicate that you are allowed to work, in this way providing you with acceptable evidence of employment authorization for I-9 purposes.
In cases where you are employment authorized incident to status but your I-94 does not provide evidence of this, you may instead want to file an application for an EAD to obtain clear proof of your identity and entitlement to work. In these circumstances you are not required to apply for an EAD, although it can make accepting employment far easier. In contrast, where you are not already authorized to work in the United States, you must use Form I-765 to apply for an EAD to be eligible to accept employment in the first place.
Common scenarios in which you may need to request employment authorization can include as the H-4 spouse of an H-1B nonimmigrant, as an F-1 or M-1 student, or while awaiting the outcome of a pending I-485 adjustment of status application for a green card.
What is the process to file Form I-765?
All noncitizens who are in the US wanting to work but whose immigration status does not authorise them to work, will need to file Form I-765 to request employment authorization. Other foreign nationals whose immigration status authorizes them to work may also use Form I-765 to prove this entitlement. In either case, to request an EAD, you must file a completed Form I-765 with US Citizenship and Immigration Services (USCIS).
The filing address for your I-765 will depend on the category under which authorization is sought. You can check the USCIS website for the Form I-765 filing locations, where you will find a list of mailing addresses based on your EAD category. If you are filing Form I-765 with another form, you must file both forms at the location as specified by the other form. For example, if you are filing Form I-765 and Form I-539 (Application to Extend/Change Nonimmigrant Status), you should file both forms according to the Form I-539 instructions.
It is worth noting that EAD applications, or where Form I-765 is sent together with another form, must be mailed to the appropriate filing location, where any failure to send to the right place may result in processing delays. When filing Form I-765, you must also ensure that you pay the correct fee. The filing fee for Form I-765 is $410, together with a biometric services fee for certain categories, although some individuals may be exempt. If you are eligible for a fee waiver, you should complete Form I-912 (Request for Fee Waiver) and submit this with any required evidence of your inability to pay the filing fee.
If you are filing two forms together, you may need to pay the fees separately where, in some cases, USCIS has stopped accepting single combined fee payments.
Form I-765 supporting documentation
When it comes to documentation in support of your application for an EAD, much again will depend on whether you are filing Form I-765 on its own or together with another form.
When it comes to supporting documents needed solely for your EAD application, the nature of this documentary evidence will come down to the category for which authorization is needed. For example, if applying as an L1 dependent spouse, you will need:
- evidence of your lawful nonimmigrant status, for example, a copy of your Form I-94, your passport or other valid travel document
- evidence of your spouse’s lawful nonimmigrant status, for example, a copy of your spouse’s Form I-94, their passport or other valid travel document
- your marriage certificate or, if this is not available, any other secondary evidence of your marriage to the L1 intracompany transferee.
You will also need to provide two identical and recent passport-style photos of yourself.
How to complete Form I-765
There are instructions to help you complete Form I-765 on the USCIS website, where completion of this form is relatively straightforward, provided you carefully follow the USCIS form-specific instructions that you can download and print out or access online.
You will be asked to provide detailed biographical and contact information, as well as the reason for your EAD application, for example, permission to accept employment or proof of existing authorization to accept employment. You could also be applying for a replacement of a lost, stolen or damaged card, or for correction of a card received by you containing an error. You will then be asked to sign Form I-765, including a declaration that the information contained within the form is complete, true and correct.
In many cases, rather than attempting to complete Form I-765 by yourself, not least if there are language barriers, it can be best to secure the assistance of an immigration specialist. This can help to ensure that the form is completed correctly, and that the right documentation in support of your application for employment authorization is submitted.
Any application using Form I-765 not supported by the correct documentation may result in processing delays. In some cases, this can also result in USCIS denying your application.
How long does Form I-765 take to process?
Having submitted Form I-765 for an Employment Authorization Document, this can take anything between a few weeks to several months to be processed, although much will depend on the category under which authorization is sought. The processing times can also vary dependent on the field office or service centre dealing with the application.
There is a useful online tool on the USCIS website which allows you to check case processing times. You will simply need to insert the form and category of form being used, for example, Form I-765 based on being the H-4 spouse of an H-1B nonimmigrant. You must also select the field office or service centre where your form will need to be filed. The online tool will then generate an estimate of the processing time for that location.
Can Form I-765 be used to renew my EAD?
On approval of a Form I-765 application, USCIS will generally grant an EAD with a validity period that aligns with your Form I-94 expiration date, not to exceed 2 years for E and L dependent spouses, or 3 years for H-4 dependent spouses. If you remain eligible to apply for employment authorization, or are still employment authorized incident to status, but your EAD will soon be expiring, you should file for a renewal EAD by submitting a new Form I-765 and filing fee, if required. Again a fee waiver may be requested and approved.
To renew your EAD, you should file Form I-765 at least 90 days prior to expiration of your existing card, although you are encouraged by USCIS to file your renewal application as soon as possible once your EAD is within 180 days of its expiration date. In this way, you will minimise the risk of any gap in your employment authorization while your application is pending. However, the automatic extension period for an expired EAD has been temporarily increased from 180 days to 540 days for applicants within certain employment eligible categories who have a pending Form I-765 (received on or before 26 October 2023) requesting a renewal of their employment authorization and/or EAD.
Can Form I-765 be used to replace my EAD?
If your EAD is lost, stolen or damaged, you can request a replacement from USCIS, again by filing a new Form I-765. Equally, if your EAD contains incorrect information that is not down to a USCIS error, you will need to submit a new Form I-765. In these circumstances, you will also need to submit a letter explaining the error, together with evidence to show what the correct information should be, along with the original card containing the error.
In any one of these scenarios, whether you are applying to replace an EAD that is missing, damaged or inaccurate, you will also need to pay a fresh fee, unless eligible for a fee waiver. It is only where an EAD contains incorrect information because of a caseworker error that USCIS will correct this mistake at no additional cost. In these cases, you do not need to submit a new Form I-765 or a filing fee. Instead, you must mail the original card, providing a detailed explanation of the error and any relevant supporting documentation.
Form I-765 FAQs
What is I-765 in USA?
Form I-765 is the form that must be filed with United States Citizenship and Immigration Services (USCIS) to request an authorization document to prove that you are authorized to undertake work in the US for a specific period of time.
What does it mean I-765 approved?
If an application for employment authorization using Form I-765 is approved, you will be given an Employment Authorization Document (EAD) on Form I-766. This EAD can be shown to your employer to prove you can undertake employment in the US.
What is the difference between I 485 and I-765?
Form I-485 (Application to Register Permanent Residence or Adjust Status) is for a green card, while form I-765 (Application for Employment Authorization) is to be able to work without a green card or any other automatic authorization to work.
How long does it take to process I-765 EAD?
Having submitted Form I-765 for an Employment Authorization Document, it can take several months to be processed, although much will depend on the category under which authorisation is sought and the field office or service centre deciding the application.
This article does not constitute direct legal advice and is for informational purposes only.