Tag Archive for: Employment Authorization Document

Cyrus Mehta

Shaping Immigration Policy Through EADs

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By Cyrus D. Mehta and Kaitlyn Box*

In the face of Congressional inaction to fashion an immigration solution for the United States, the Administration does have broad authority to grant an employment authorization document (EAD) to noncitizens. It also has the ability to extend the validity of an EAD.

On September 27, 2023, USCIS announced that it will increase the maximum employment authorization document (EAD) validity period for “certain noncitizens who are employment authorized incident to status or circumstance” to five years. This five-year EAD validity period also applies to some “initial and renewal EADs for certain noncitizens who must apply for employment authorization”. Refugees, asylees, individuals granted withholding of removal, and those with pending asylum application or applications for adjustment of status under INA 245, are among the categories of noncitizens who will be issued EADs with a five-year validity period, according to a USCIS Policy Alert. USCIS stated that this change is aimed at “significantly reduc[ing] the number of new Forms I-765, Application for Employment Authorization, we receive for renewal EADs over the next several years, contributing to our efforts to reduce associated processing times and backlogs”. This announcement is the one of the most recent in a series of DHS measures that have the effect of shaping immigration policy through EADs.

INA 274A(h)(3) provides DHS a basis for providing employment authorization to noncitizens when not specifically authorized under the INA. The provision states:

(3) Definition of unauthorized alien – As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.

DHS has relied on INA 274A(h)(3) as the authority for issuing EADs to H-4 spouses of H-1B workers under 8 CFR 274.12(c)(26). Save Jobs USA, an organization representing California IT workers, is currently challenging the DHS rule that grants work authorization to H-4 nonimmigrants before the Supreme Court. Although the policy was upheld at the district court level in March and no court of appeals decision has yet been rendered, Save Jobs has already sought review by the Supreme Court. Save Jobs is arguing that the issue of H-4 EADs in one of “extraordinary practical importance” because it represents “just the tip of a regulatory-work-authorization iceberg” that threatens the jobs of U.S. workers. Save Jobs further claimed that providing work authorization to noncitizens paroled into the U.S. for humanitarian purposes will “will allow aliens to hold 18 percent of the jobs created in an average year.” In a September 2023 brief, DHS contended that Save Jobs does not have standing to challenge the regulation, and urged the Court to deny certiorari, stating that: “The case would… not warrant certiorari even had the court of appeals already affirmed the district court’s ruling. That petitioner seeks to skip that critical step and obtain certiorari before judgment makes denial of the petition all the more appropriate.”

Although employment authorization is specifically provided for recipients of Temporary Protected Status (TPS) under INA 244(a)(1), INA 274A(h)(3) also affords DHS a basis for providing interim EADs to applicants who have pending TPS applications under 8 CFR 274.12(c)(19). Pursuant to a recent announcement, DHS is redesignating and extending TPS for Venezuela for 18 months. The redesignation will allow Venezuelan nationals who have been continuously residing in the United States since July 31, 2023 and meet the other eligibility criteria to apply for TPS. EADs for current Venezuelan TPS beneficiaries will be automatically extended through March 10, 2025. The redesignation of Venezuela for TPS will relieve the pressure for cities like New York that have accepted recent migrants from Venezuela, as these individuals will be able to legally work with EADs even while they have pending TPS applications rather than relying only on housing and other services provided by NYC.

Other examples where the Administration has relied on INA 274A(h)(3) include the granting of EADs to those who have been paroled into the United States under humanitarian parole under 8 CFR 274.12(c)(11), F-1 students who are in a period of practical training (8 CFR 274.12(c)(3)), applicants with pending I-485 applications (8 CFR 274.12(c)(9)), applicants with pending cancellation of removal applications (8 CFR 274.12(c)(10)), recipients of Deferred Action for Childhood Arrivals (DACA) (8 CFR 274.12(c)(33)), and beneficiaries of approved I-140 petitions, as well as their spouses and children, based on compelling circumstances (8 CFR 204.5(p)). Under these regulations, some EADs are linked to the noncitizen’s nonimmigrant visa status such as F-1 or H-4 while other EADs are not linked to such visa status and allow the noncitizen to remain lawfully present in the US.

Some of the programs that have provided the basis for EADs have been challenged in addition to the H-4 EAD program, such as the DACA program, which the U.S. District Court for the Southern District of Texas recently struck down once again. In a September 13, 2023 order, Judge Hanen stated that the 2022 Final Rule promulgated by the Biden administration to formalize the DACA program was not “materially different” from the 2012 policy that first created the program, and held that “the Final Rule suffers from the same legal impediments” as the 2012 policy. The 2012 policy was ruled unlawful in by the 5th Circuit in October 2022. In a 2015 opinion authored by Judge Hanen, the 5th Circuit struck down the “Deferred Action for Parents of Americans and Lawful Permanent Residents” program (or “DAPA”) and questioned whether INA 274A(h)(3), which the court characterized as a definitional provision, even affords DHS the authority to grant employment authorization or related benefits.

The administration’s humanitarian parole program, which allows 30,000 qualifying nationals of Cuba, Haiti, Nicaragua and Venezuela to be admitted to the United States every month for up to two years and apply for work authorization, is currently facing a challenge by Texas and nineteen other states. The plaintiff states allege that the program “amounts to the creation of a new visa program that allows hundreds of thousands of aliens to enter the United States who otherwise have no basis for doing so”. In an October 2022 Court of Appeals case, the Washington Alliance of Technology Workers (Washtech) similary argued that the F-1 STEM Optional Practical Training (OPT) rule should be struck down on the ground that INA § 101(a)(15)(F)(i) authorizes DHS to allow F-1 students to remain in the U.S. only until they have completed their course of study and does not specifically authorize post-graduation practical training. The U.S. Court of Appeals for the D.C. Circuit, however, upheld STEM OPT as a valid exercise of DHS’ authority under in INA § 214(a)(1) to promulgate regulations that authorize an F-1 student’s stay in the U.S. beyond graduation. The Supreme Court recently denied  certiorari allowing STEM OPT and the EAD emanating under 8 CFR 274.12(c)(3) to continue.

Notwithstanding these legal challenges on specific executive actions, the Administration continues to  have the authority to issue and extend EADs to a broad swath of noncitizens. Some of the beneficiaries of EADs are those who are in the queue for permanent residence but are unable to obtain it due to backlogs in the employment categories while others are in the US based on humanitarian reasons. The authority and flexibility that INA 274A(h)(3) provides to the Administration to fashion immigration policy through the grant EADs and transform the lives of hundreds of thousands of noncitizens fills an important gap that complements the immigration benefits provided in the INA.

*Kaitlyn Box is a Senior Associate

Cyrus Mehta

NYC Should Welcome Migrants Rather Than Have a Mayor Who Disparages Them

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Cyrus D. Mehta and Kaitlyn Box*

In recent weeks, New York City Mayor Eric Adams has made a series of increasingly uninformed and disparaging comments about migrants arriving in New York. In a town hall meeting on September 6, Adams said of the influx of migrants: “this issue will destroy New York City”. Adams further stated that “every community in this city is going to be impacted” by the arriving migrants, and warned the audience: “It’s going to come to your neighborhoods.” On September 9, 2023, Adams directed agencies to prepare plans for reducing the city’s budget by 15 percent, stating that the cost of caring for increasing numbers of migrants has put a strain on NYC’s financial resources.

Adams’ comments are incredibly troubling to immigration advocates, who view the mayor as demonizing asylum seekers. Murad Awawdeh, executive director of the New York Immigration Coalition, told the New York Times that: “What we’ve seen with the rhetoric he’s using is that it’s activating people in a negative way against their new neighbors. The mayor should know better. The contributions of the immigrant community here have been seismic.” New York City has a rich tradition of welcoming immigrants, and the contributions of immigrants have long shaped the fabric of the city. Even Emma Lazarus’ poem, printed at the base of the iconic Statue of Liberty in New York Harbor, issues the following directive: “Send these, the homeless, tempest-tost to me”.  Adams’ remarks run entirely contrary to the vision and history of New York City as a refuge for immigrants.

Moreover, Adams seems to ignore the fact that asylum seekers are often eager to find work and begin contributing to their communities. A recent New York Times article also emphasizes that there is no shortage of available jobs for migrants, stating “across the state, many large and small employers have expressed an overwhelming willingness to hire recent asylum seekers”. The article further notes that there is a tremendous need for workers in “service industries like landscaping, manufacturing and hospitality”, particularly in areas of upstate New York that have suffered from declining populations in recent years.

However, the path to obtaining work authorization is less than straightforward for many migrants. Pursuant to INA § 208(d)(2) and 8 CFR 208.7(a)(1), asylum applicants may apply for an employment authorization document (EAD) no earlier than 150 days after the submission of a completed asylum application. The Form I-765 application must then remain pending for an additional 30 days, for a total of 180 days, before the asylum applicant is eligible for work authorization and USCIS can issue an EAD. Thus, despite some elected officials urging the Biden administration to expedite the process for issuing the EAD for asylum seekers, the administration is hamstrung by the statute precluding an asylum applicant from applying earlier than 150 days from submitting an application, and then issuing the EAD only after 180 days from the submission of the application.

Some migrants need not wait for 180 days before becoming eligible for employment authorization, though. Pursuant to a special Department of Homeland Security (DHS) program, certain nationals of Cuba, Haiti, Nicaragua, and Venezuela may be paroled into the U.S. for a period of up to two years. Because these individuals are not asylum applicants, but rather have been paroled into the U.S., they are eligible to apply for an EAD immediately.

Similarly, U.S. Customs and Border Protection (CBP) has recently begun using the CBP One app to schedule appointments for migrants seeking to enter the U.S. through a port of entry at the Southern border. According to a DHS fact sheet, “individuals who are processed into the United States are generally placed into immigration proceedings and, on a case-by-case basis, may be considered for a period of parole for up to two years to continue their immigration proceedings”. Migrants who entered the United States through this process are eligible to apply for an EAD immediately upon being paroled into the country, even if they applied for asylum less than 150 days prior. The Biden administration has recently begun sending text messages to migrants who are eligible for work authorization to encourage them to apply, as well as circulating QR codes that link to information about applying for work authorization.  While this is all salutary, the Biden administration should also process the EADs expeditiously for eligible applicants.

Adams’ assertion that migrants will destroy New York City is utterly misguided. He is foolishly playing into the hands of Republican politicians who have never been friendly towards asylum seekers.  Rather, immigrants have played an instrumental role in building New York City into what it is today. The city’s newest arrivals are equally eager to contribute, and Adams seemingly disregards the fact that many migrants are already authorized to apply for work authorization and entering a community that is ready to employ them. Once these migrants are employed they will contribute to New York City and the economy.  The key to ensuring that New York City can successfully welcome arriving migrants is not to vilify these individuals, but rather to ensure that eligibility for work authorization is extended to as many migrants as possible, and to facilitate the application process for those who are already eligible. This will be a win-win for migrants and New York City!

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

WORKING : H-4 SPOUSES GET TO TAKE A STEP FORWARD, BUT IS IT A GIANT ONE?

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By Gary Endelman and Cyrus Mehta

Sometimes it takes a while for a sound idea to gain acceptance. Granting employment authorization to H-4 spouses is a good example. In late March 2010, the authors urged In The Tyranny of Priority Dates that this be done, with or without an employment authorization document (EAD). A few months later, then USCIS General Counsel Roxanna Bacon, Service Center Operations Head Donald Neufeld and Field Operations Chief Debra Rogers recommended precisely this same step to USCIS Director Alejandro Mayorkas, but only for those “H-4 dependent spouses of H-1B principals where the principals are also applicants for lawful permanent residence under AC 21.” Memorandum, Administrative Alternatives to Comprehensive Immigration Reform (posted as AILA InfoNet Doc. 10073063 on July 30, 2010). The memo was leaked by those who wanted to defeat any administrative initiatives and they did so. There matters stood until a few days ago on January 31, 2012 when the Department of Homeland Security brought this idea back to life. The announcement includes other goodies too, but this is what it specifically says about the possibility for an H-4 spouse to work:

  • Provide work authorization for spouses of certain H-1B holders.

This proposed change to the current DHS regulation would allow certain spouses of H-1B visa holders to legally work while their visa holder spouse waits for his or her adjustment of status application to be adjudicated. Specifically, employment will be authorized for H-4 dependent spouses of principal H-1B visa holders who have begun the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the U.S. This effort will help retain talented professionals who are valued by U.S. employers and who seek to contribute to our economy.

Those who dig a bit deeper on the government’s regulatory agenda site find a key qualifier that severely limits the benefit granted. Some H-4 spouses it seems are more deserving of the right to work than others: employment authorization is to be extended only to those “H-4 spouses of principal H-1B nonimmigrants who have begun the process of seeking lawful permanent resident status through employment and have extended their authorized period of admission or “stay” in the U.S. under section 104(c) or 106(a) of Public Law 106-313 also known as the American Competitiveness in the 21st Century Act.” This means that no H-4 spouse whose H-1B principal has not spent more than 6 years in the USA will be eligible to apply for an EAD. At a minimum, a PERM labor certification or I-140 would have to have been filed, and even approved to qualify for the 3 year H extension under Section 104(c) of AC 21, if less than 365 days had elapsed since submission. After all this, while it seems as if we should celebrate, how loud should the cheering be?

There is no need for the USCIS to adopt such an exceedingly narrow interpretation. After all, if we look at the essentially unlimited authority granted by INA 274A(h)(3)(B), it seems clear that the USCIS can grant employment authorization to anyone at any time for any purpose. As our insightful colleague David Isaacson has cogently pointed out, under these circumstances, an EAD can be issued to someone who is not attached to either a PERM or an approved I-140. Indeed, an H-4 spouse whose H-1B principal is the beneficiary of an approved family-based third preference I-130 benefits not at all since such approval would not sustain a 7th H year under AC 21. Save for National Interest Waivers and Persons of Extraordinary Ability, which do not need a job offer, the right of an H-4 spouse to work is conditioned upon the willingness of the H-1B principal’s employer to sponsor his/her mate for LPR status, something over which the H-4 spouse has no control.

There is nothing in the INA that prevents an H-4 spouse from working. This prohibition is purely an act of regulation. That being the case, what prevents the USCIS from taking a more generous view? We would do well to remember that the unavailability of an EAD outside the adjustment of status context forces people into the H-1B category who might not otherwise need or even want to be there. Allowing all H-4 spouses to work would ease the pressure on the H-1B category and, by so doing, serve to diminish opposition to all employment-based immigration. While it is true that the H-1B is subject to an annual limitation each year, most other nonimmigrant work visas do not have an annual cap. Beyond that, America suffers when the nation forgets that many talented H-1B beneficiaries choose not to stay here because their H-4 spouses are unable to work. See Matt Richtel , Tech Recruiting Clashes with Immigration Rules, N.Y.Times, Apr.12, 2009.

Truth be told, there is no need for any H-4 spouse to apply for an EAD. Why not simply include H-4 spouses as part of 8 CFR Section 274a.12(a) so that they could work incident to status? This is a simple yet elegant way to ameliorate the extreme economic hardship that our system needlessly inflicts upon H-4 spouses. In fact , why limit this to H- 4 spouses? There is nothing to prevent the Executive from granting work authorization to teenage children on H-4 visa status.

There is no reason why an H-4 spouse should have to wait for years before being allowed to work. Since both the H and L categories are clothed with dual intent – both visa categories allow the holder to apply for a green card from the very outset – the H-4 spouse should be treated exactly like the L-2 spouse when it comes to applying for an EAD. Indeed, the H-4 spouse may be more deserving of a work permit if the wait for the green card under the employment based second and third preferences can take several years, or even decades, especially if the spouses are born in India or China. In fact, despite a cap on H1B visas compared to unlimited L migration, AC21 makes it possible, and certainly more frequent, for the H4 spouse to remain in the USA far longer than the L-2 counterpart, thus making the need for employment authorization more not less compelling. If the USCIS wants to limit the scope of this benefit, allow it to be conditioned upon the filing of a non-frivolous labor certification, or I-140 if no labor certification is required, regardless of how long the H-1B has been in the United States. This would advance the national interest by enhancing the incentive for H-1Bs to come to the United States and remain here, despite chronic visa backlogs.

Ours is a policy of audacious incrementalism designed to maximize the remedial possibilities within the INA as it now exists while waiting for something better, namely congressional enactment of comprehensive immigration reform. Not only is it fitting and proper for the USCIS to formulate immigration policy on highly minute technical issues of surpassing importance, it is no exaggeration to contend that the Constitution expects this to happen. Indeed, without this, who would do it? Far from crossing the line and infringing upon the authority of Congress, what we ask the USCIS to do augments Congressional prerogatives by providing a practical way forward. For those who say that we ask too much too soon, we respond with one simple question, the same one that Hillel the Sage asks in Ethics of the Fathers: “If not now, when?”

(The views expressed by guest author, Gary Endelman, are his and not of his firm, FosterQuan LLP)