USCIS Internal Memo about EAD for I-140 from June 2015

[Spectator]

I'm sure many of you will have seen this document by now.

This is a placeholder for any discussion on the subject, since I'm certain it must be of interest to (probably) the majority of the forum members.

Please bear in mind that the document describes what was discussed at a "talking shop" about who might receive an EAD with an approved I-140. That's not necessarily the same as the full scope of any proposed rule.

I'm not going to let the source of the document get in the way of such an important topic.

If anyone feels differently, I'll accept it if the post is deleted.

[delguy]

Thanks Specs. One thing stands out in "Pros" for option 4 (that excludes H1B holders from applying for EAD):
<quote>
- Employers utilizing the H-1B program may be less likely to oppose the general EAD rules
<unquote>

This view of a govt agency where they feel that employers favor H-1B over EADs for H-1B holders presents a very sorry state. Employers should be happy with EADs as they dont have to file LCAs, and pay for H1B extensions. If they do not, rather than showing it as a point in favor of not giving EADs to H1Bs, admin should make an effort to find out why Employers oppose giving EAD to H1Bs.

[Spectator]

Part 1 of 3

EMPLOYMENT AUTHORIZATION DOCUMENTS (EAD) FOR CERTAIN BENEFICIARIES OF APPROVED I-140 PETITIONS

This paper explores open market Employment Authorization Document (EAD) regulatory changes under consideration to better assist and provide stability to the beneficiaries of approved employment-based immigrant visa petitions.The current draft regulation limits EAD eligibility to primary beneficiaries and their derivative family members with an I-140 petition that has been approved for at least one year. (Note 1) The current draft regulation contemplates EAD eligibility for individuals who are in lawful nonimmigrant status at the time of filing the EAD application.This paper addresses the question raised at the Regulations Retreat as to who may benefit from this,regulatory change given different options. Each proposed option discusses the population of individuals covered and excluded, and the pros and cons of each proposed option. The options are enumerated from the most inclusive to the least inclusive. The Office of Policy and Strategy recommends Option 2, in which EADs may only be granted to individuals who are lawfully present in the United States.

1. EAD may be granted to individuals who are physically present in the United States

Population Covered:

• All individuals who are in the United States, including those lawfully present; those who have entered without inspection (these individuals are known as EWIs); and/or non immigrant overstays.

Population Excluded:

• Individuals with an approved I-140 petition and their family members who are overseas.

Pros:

• This could cover a greater number of individuals, many of whom have already had the U.S. labor market tested demonstrating that their future employment won't adversely affect US workers.

• Allows these individuals to remain in the United States until their immigrant visa number is available

• May authorize the presence of certain individuals who are not here lawfully and address the needs of some of the intended deferred action population (note that previous unlawful presence would still count against the foreign national for admissibility purposes) (Note 2)

• This would be consistent with the current practice and form instructions of the Form I-765 Application for Employment Authorization Document which require individuals to be physically present in the United States.

• May potentially enable undocumented workers to lawfully work in jobs that may better match their skills and potential.

• Contributes to our economy and increase our federal, state, and local tax base as these individuals will be lawfully employed and be required to pay taxes.

• By including all individuals who are physically present in the United States, we are including a population that is in the most need of relief. While individuals who are lawfully present or are in nonimmigrant status generally have other means of employment authorization, those who are out of status, overstays of EWls have no means to lawfully work and remain in the United States even though they have an approved I-140 petition demonstrating a need for their employment in the United States.

• The Form I-765 adjudication would be more straightforward under this all-inclusive proposal because it would simply require an approved I-140.

Cons:

• Individuals who are EWI or overstays may benefit from this EAD, but in many cases may face difficulties in pursuing permanent residence due to ineligibility or being subject to unlawful presence inadmissibility for which a waiver is required. Therefore, in a sense this option might not support the macro-level policy goal of retaining these individuals until they are ready and able to become immigrants.

• It may be viewed as facilitating or supporting illegal immigration. May actually encourage individuals to overstay or EWI, which would adversely affect the integrity of our immigration system, and it would seem to reward those who have violated immigration laws (Note 3)

• It may be viewed as saturating the US labor market with foreign workers taking job opportunities away from U.S.workers, to a greater extent than the options listed below.

• As this group includes individuals who are not lawfully present, it may be viewed by Congress as an attempt to circumvent other programs subject to wage provisions and numerical caps, such as H-1Bs, where work authorization would no longer be available based on those caps, or as a way to circumvent established categories where the individual may not otherwise qualify.

• Some stakeholders would oppose this because it would broaden the class of eligible individuals, and would not require current nonimmigrant status.

• It may be viewed by Congress as an attempt to circumvent other programs subject to numerical caps and wage provisions, such as H-1Bs, where work authorization would no longer be available based on those caps; or as a way to circumvent established categories where the individual may not otherwise qualify.



2. EAD may only be granted to individuals who are lawfully present in the United States.

Population Covered:

• Individuals who are lawfully present in the United States, including non-immigrants whose lawful nonimmigrant status may have expired but have timely filed an extension of stay or change of status within an authorized period of admission as contemplated by 8 CFR parts 214.1 and 248.1.

• Parolees.

• A broad range of individuals who either entered illegally or whose stay expired, but who are nevertheless allowed to remain in the United States and not accrue unlawful presence. These classes of individuals may already be eligible for EADs under a myriad of categories related to their authorized presence, such as TPS, DED, DACA, adjustment of status applicants,and asylum applicants, among others.

Excluded:

• Individuals with an approved I-140 petition and their family members who are overseas;

• EWls; and

• Nonimmigrant overstays.

Pros:

• It would support individuals who are on the path to permanent residence and lawfully present in the United States but who might not be employment-authorized nonimmigrants, by allowing them to work and contribute to our economy and increase our federal. state, and local tax base.

• It could boost our economy, thereby potentially helping the labor workforce by creating more jobs, improving wages of all workers, and reducing the deficit.

• Maintains the integrity of the immigration system by only according a benefit to those who are lawfully present in the United States.

• The proposed relief can be used by individuals who have an approved I-140 and are within a grace period contemplated in the draft AC21 regulations. Such individuals may apply for the I-140 EAD and remain in the United States in order to secure other employment, while they wait for their immigrant visa number to become available.

Cons:

• Form I-765 adjudications would be very complicated and would substantially increase adjudication time, including RFE issuance.This is because officers would have to become well-versed in the complex rules for determining when someone is or is not lawfully present in the United States. This is not a determination that can be made by a simple system look-up, but rather, this determination requires an in-depth analysis of the individuals' overall immigration history, to include all authorized periods of stay, all periods of work authorization, and all gaps.

• Some stakeholders would oppose this because it would broaden the class of eligible individuals, and would not require current non-immigrant status.

• It may be viewed as saturating the U.S. labor market with foreign workers taking job opportunities away from U.S.workers, to a greater extent than the options listed below.

• It may be viewed by Congress as an attempt to circumvent other programs subject to numerical caps and wage provisions, such as H-1Bs, where work authorization would no longer be available based on those caps, or as a way to circumvent established categories where the individual may not otherwise qualify.

• Would prevent undocumented workers from lawfully working in jobs that may better match their skills and potential, or contribute to our economy and increase our federal, state, and local tax base.

[Spectator]

Part 2 of 3

3. EAD may only be granted to Individuals who are in lawful nonimmigrant status at the time of filing the EAD. (Note 4)

Population Covered:

• Individuals inspected and admitted in a lawful nonimmigrant status whose status has not expired (including all departure preparation periods, e.g., "grace periods" provided by regulation).

Population Excluded;

• Parolees, as they are not admitted in a nonimmigrant status;

• Non Immigrants who have overstayed their authorized period of admission.;

• Non Immigrants with pending applications for change of status or extension of stay whose authorized stay has expired while such application is pending;

• Nonimmigrants who fail to maintain their lawful nonimmigrant status (includes working without authorization, students and exchange visitors whose status has been terminated by SEVP, among others)

• Individuals with pending asylum applications;

• Individuals in removal proceedings;

• EWls; and

• Individuals with an approved I-140 petition and their family members who are overseas.

Pros:

• Could be viewed as maintaining the integrity of the legal immigration system by further restricting EAD eligibility.

• Complements the recently finalized H-4 EAD rule, as well as numerous other employment authorization provisions, because it requires the applicant to maintain lawful non-immigrant status.

• Aligns with the macro-level policy goal of attracting and retaining global talent to the United States, as it provides work authorization in many cases to individuals who have held a highly-skilled non-immigrant status. It also opens the possibility of work authorization to spouses and family members of foreign nationals in nonimmigrant status who are on the path to lawful permanent residence.

• Gives flexibility to foreign nationals to pursue employment options other than the current I-140 employer.

• Eliminates potential issuance of multiple EADs to individuals already employment authorized, thereby minimizing the vulnerability of misuse.

• By limiting this to individuals in a valid non-immigrant status at the time of filing, this would also serve to curtail fraud and reduce incentives for illegal entry and status violations.

• It would support individuals who are on the path to permanent residence but who are running out of time in nonimmigrant status, by allowing them to work and contribute to our economy and increase our federal, state, and local tax base.

• The proposed relief can be used by individuals who have an approved I-140 and are within a grace period contemplated in the draft AC21 regulations. Such individuals may apply for the I-140 EAD and remain in the United States in order to secure other employment, while they wait for their immigrant visa number to become available.

Cons;

• Some stakeholders would oppose this because it would broaden the class of eligible individuals, which would include individuals who are currently in nonimmigrant status but who are not employment authorized, such as F and J nonimmigrants.

• It may be viewed as saturating the U,S. labor market with foreign workers taking job opportunities away from U.S. workers, to a greater extent than the option listed below.

• It may be viewed by Congress as an attempt to circumvent other programs subject to wage provisions and numerical caps, such as H-1Bs, where work authorization would no longer be available based on those caps. Or as a way to circumvent established categories where the individual may not otherwise qualify.

• Individuals who are on the path to permanent residence, but who have run out of nonimmigrant options and their lawful status has lapsed, would be unable to work and to contribute to our economy.

• Would prevent undocumented workers from lawfully working in jobs that may better match their skills and potential, or contribute to our economy and increase our federal, state, and local tax base.

• Would not cover individuals who do not have a valid nonimmigrant status; however, this would be mitigated by the fact that some affected individuals might have other protections and/or work authorization (e.g,TPS,DED,DACA,).This population may already have the work permission they need and not avail themselves of this separate option.

• Individuals who are on the path to permanent residence, but who have run out of nonimmigrant options because their lawful status has lapsed, would be able to work and to contribute to our economy.



4. EAD may only be granted to individuals who are in certain lawful nonimmigrant status, i.e. excluding H-1Bs or L-1As.

Population Included:

• Individuals inspected and admitted in a lawful non-immigrant status whose status has not expired (including all departure preparation periods, e.g., "grace periods" provided by regulation), except for individuals who are in H-1B or L-1A status. (Note 5)

Population Excluded:

• Individuals in H-1B or L-1A status;

• Parolees, as they are not admitted in a nonimmigrant status;

• Nonimmigrants who have overstayed their authorized period of admission;

• Nonimmigrants with pending applications for change of status or extension of stay whose authorized stay has expired while such application is pending;

• Nonimmigrants who fail to maintain their lawful nonimmigrant status (includes working without authorization, students and exchange visitors whose status has been terminated by SEVP, among others);

• Individuals with pending asylum applications;

• Individuals admitted as refugees (but note that they are lawfully admitted and authorized to work);

• Individuals afforded temporary protection and work authorization, including those with valid grants of TPS and DED, individuals granted deferred action, and DACA recipients, among others;

• Individuals in removal proceedings;

• EWls;and

• Individuals with an approved I-140 petition and their family members who are overseas.

Pros:

• It may lessen the litigation risk for this EAD rule. First, Congress has already spoken on this point via statutory authority in AC21 and provided a means by which H-1Bs may remain. To expand this statutory benefit beyond the plain language of the statute may make the rule more vulnerable to a challenge in court. Second, as AC21 was meant to alleviate INS backlogs and not the unavailability of immigrant visas, distancing the rule from AC21 could further help insulate it from litigation.

• By not excluding H-1Bs, the rule may reduce the number of H-1B petitions filed. This could provide a means to circumvent H-1B wage protections. A reduction in H filings would reduce H fees used for training U.S. workers, combating fraud, and border protection. Of the amounts deposited into the H-1B Nonimmigrant Petitioner Account, 55% of the fee revenue is provided to the Department of Labor, 40% is provided to the National Science Foundation and 5% percent is retained by USCIS.

• Based on sections 110 and 111 of AC21 and the accompanying legislative history, any EAD/advance parole program that could result in reduced fees to the H-1B Nonimmigrant Petitioner Account would run directly contrary to one of the main purposes of AC21, which was to boost funding to help educate Americans such that continued reliance on the H-1B program to address this shortage of high skilled workers would no longer be needed. See section 286(s) of the Act, 8 U.S.C.§ 1356(s).

• Employers utilizing the H-lB program may be less likely to oppose the general EAD rule.

• The proposed relief can be used by individuals who have an approved I-140 and are within a grace period contemplated in the draft AC21 regulations. Such individuals may apply for the I-140 EAD and remain in the United States in order to secure other employment, while they wait for their immigrant visa number to become available.

Cons:

• Includes all the cons enumerated for Option 3.

• It would remain difficult, but not impossible, for H-1B workers to change employers until an adjustment of status application has been filed and remained pending for 180 days.

• Specifically excluding H-1Bs would not comport with the policy goals of the WH, particularly as AC21 addresses the situation of those individuals who are in H-1B status and those who have an I-485 application that has been pending for more than180 days, but not those individuals who fall in between.

• Results in disparate treatment of high-skilled workers and therefore carries litigation risk.

• H-1Bs (other than those who benefit from AC21) and L-1As are subject to a maximum period of admission and therefore, through no fault of their own, may fallout of status while they are awaiting a visa number to become immediately available. Other nonimmigrant categories, such as Es, Fs, Os, certain Ps do not have a maximum limitation of admission that would necessitate a measure to address the gap that may be created by needing to wait for the visa number to become immediately available.

[Spectator]

Part 3 of 3

Final Note:
The Administrative Appeals Office has raised a concern that issuing an EAD off of an approved I-140 would grant a benefit directly from the I-140 alone.This has never been done and it has always been contingent on having an I-485 filed. To grant a benefit directly from the I-140 may increase beneficiary standing claims in cases of revocation. In this instance, the beneficiary would have a tangible benefit to lose. This raises a question: would the beneficiaries be able to successfully contest standing even in cases where the I-140 is denied, as they would not later receive an expected benefit?


Notes:
1 The regulations as currently drafted anticipate that EAD eligibility will cease once the beneficiary's priority date has been current for one year. This limitation will ensure that a beneficiary may not continually remain in the United States unless he or she maintains a current intent to adjust status to permanent residence

2 This option would provide work authorization to eligible individuals but such individuals may be ineligible to adjust status based on an offer of permanent employment due to nadmissibility issues,and because such individuals would not have a lawful nonimmigrant status in the US.

3 Note, however, that it is reasonable to presume that any overstay or EWI would prefer a lawful status over an EAD

4 Another potential option maybe granting EADs to individuals who are lawfully present in the United States, but who have been out of status for less than 180 days. While the adjudication may be complicated, it may address the population designed by this initiative.

5 In enacting AC21 as amended by DOJ 21, Congress specifically provided a means by which H-1B nonirnrnigrants may remain and work in the United States even if an immigrant visa is unavailable. Under the new H-4EAD rule, certain H-4 dependents of principal H-1Bs may now work in the United States outside of the adjustment of status context. Given these existing legal provisions, it is unclear how many H-1B and H-4 nonimmigrants this proposed EAD provision would benefit.

[oraclept]

provided that this becomes law. all eb2/3 I-140 can file EAD ?
what is affect on future EB visas by giving EADs to undocumented and asking them to stand up in line.
Looks like this is only going to increase the line ?

[Spectator]

Some initial (probably not well thought through) impressions.

For me, options 1 and 4 are completely off the table.

I think it is important to distinguish the class of people entitled to the benefit as being legal in every way. Otherwise, the opposition to a proposed rule is going to be quite vociferous (as we have seen already).

I think it's extremely important that this is not used (or seen) as a proxy to give EAD to the undocumented, and/or a means to circumvent/ameliorate the problems that the DACA/DAPA proposal is currently embroiled in.

I would favor an amended version of option 3 that included Parolees. That would ensure the benefit was only available to people who were in the USA due to a legal admission or entry. I don't see the exclusion of people who have a pending request for COS or EOS as a big deal. If those requests are approved, they become eligible. I see many of the cons stated for the current option 3 as pros to give the maximum chance of success.

Related, but not entirely about the leaked document, I see a larger and larger gap developing between the benefits available to those already in the USA, versus those overseas. I think this has the potential to cause problems in the future. The rewards for getting to the USA in some kind of status are becoming so big that the potential exists to increase fraud and misrepresentation.

What happens in the situation where a person with a suitably approved I-140 arrives in the USA in B2 status? As discussed above, they could apply for an EAD and remain in the USA. Alternatively, it might become impossible for those with an approved I-140 to receive a B1/B2 visa. I think this is something that needs to be discussed and addressed in the proposed rule.

I'll add to my thoughts in this post as I digest the leaked document.

[gten20]

I think it's extremely important that this is not used (or seen) as a proxy to give EAD to the undocumented, and/or a means to circumvent/ameliorate the problems that the DACA/DAPA proposal is currently embroiled in.

This is what I suspected as well when I first read it. I hope not.

[HarepathekaIntezar]

http://thehill.com/blogs/congress-bl...ircumvent-dapa

[Spectator]

http://thehill.com/blogs/congress-bl...ircumvent-dapa

HarepathekaIntezar,

I fixed the broken link in your post.

This is a propaganda piece by an anti-immigration group (Immigration Reform Law Institute).

Although there is a link to the Memo on the other site, the author knows no one will actually read the Memo.

The article doesn't even mention that a prerequisite in the Memo is to have an approved I-140 for a period of 1 year.

Omission of this fact is then used to infer that 4.3 million DACA/DAPA applicants caught up in current litigation, plus a further 5-6 million illegal aliens not covered by deferred action programs could be beneficiaries. That's simply a lie.

I do think a disservice has been done to the legal community by the wide ranging discussion in the Memo. It does seem that the administration is trying to hijack a reasonable proposal to turn it into something it was never meant to be. That has created a vociferous backlash by the antis that threatens to destroy the chances of implementation in any form.

[EB3Iwaiting]

I agree that Options 1 and 4 would be a No Go. The rule will be DOA and the anti-immigrants will surely kill it if those options find their way into the rule. It does seem that it was the administration which forced USCIS to include those options once DAPA got held up in courts. This simply shows that the WH is ready to hold legal immigration hostage unless benefits are given to the undocumented. The original rule was solely to provide relief to the legal skilled immigrants waiting in GC backlog, give them work portability and avoid the hassles of H1B extensions and stamping (AP has to be included with this rule or it would make no sense). But the WH has no qualms about tying benefits for the undocumented even to this rule. They have no moral value and will sail where the political wind will take them. Like you said Spectator, this rule could also encourage fraud and misrepresentation.