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Friday, July 07, 2017

Employment and Immigration Law

Written by  Linda A. Dominguez

There are many ways to get legal permission to work in the U.S. – proof of that permission is an Employment Authorization Document (“EAD” or work permit), which Citizenship and Immigration Services (“CIS”) issues. The EAD is issued once CIS approves an application (Form I-765) for the EAD, which must have a basis other than “I want to work in the U.S.” The EAD has a picture of the person, his or her name, date of birth, A-number (the case number assigned by DHS to that person), and the dates of issuance and expiration. It also contains the section of the law under which the person was found eligible to be issued an EAD. Because of this information contained on the EAD, this card is usable as a photo ID for travel purposes within the U.S., as well as entry into government buildings.

A person who has been granted Temporary Protected Status (“TPS”) is issued an EAD as proof of the TPS approval (an EAD is actually issued when the application is submitted for adjudication since it can take months for CIS to make a decision). Generally, the EAD expires on the same date as the TPS expires for citizens and nationals of that country. Right now, the U.S. attorney general has designated TPS eligibility for persons from El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, and Yemen.

A person who applies for adjustment of status to lawful permanent residence (“Green Card”) is issued an EAD while the application is pending before CIS. Once the Green Card is issued, the EAD is no longer necessary. Generally, the EAD is issued for one to two years, depending on how long CIS estimates it will take them to review the application and make a decision. The application for adjustment must be based on either a visa (family ties or employment) or entry as a refugee or a year after being granted asylum.

A person who applies for asylum is eligible to apply for an EAD once 150 days have passed since they filed their application for asylum with either CIS or the Immigration Court. The reason for the delay in EAD eligibility for asylum applicants is rooted in the fact that in the 1980s and 1990s, people would file applications for asylum just to get an EAD and would not actually fear returning to their native country. To get rid of this unwanted and unforeseen consequence, the rules were altered to make asylum applicants wait for an EAD to ensure that the basis for the application was a fear of returning to their native country and not just a desire to work in the U.S.. Once an application for asylum is approved by either CIS or the Immigration Court, a new EAD is issued with the code indicating that the holder is an asylee. Until recently, the EAD was issued for one year upon approval of the application for EAD. However, because of the backlog in the Immigration Court calendars, there is a possibility that the EAD will be issued for two years.

People with certain nonimmigrant statuses are permitted to work in the U.S. Students may be issued an EAD if they are in OPT status or have other indications that off campus employment is permitted while they are studying in the U.S.. Persons with H-1B status (as well as their spouses) are also issued EADs for the duration of their status (generally in three-year increments). Servants of diplomats and other U.S. citizens are issued EADs as long as they are only temporary workers and will be leaving the U.S. once their employment is ended.

Persons who are eligible to file for their own visa based on being a victim of violence or human trafficking are eligible for EADs while their applications are pending. Those who file under the Violence Against Women’s Act (“VAWA”) will get a Green Card once their self-petition is approved and application for adjustment of status is granted. Those who file for a U-visa (victim of crime of violence who cooperate with law enforcement) or a T-visa (victim of trafficking) will be issued an EAD upon approval. After three years, these people are eligible to file for adjustment of status and a Green Card is issued.

A person who has a pending application before the Immigration Court for cancellation of removal, NACARA, suspension of deportation (filed prior to 1997), is also eligible to get an EAD. The EAD is issued while the application is pending. If the application is approved, then a green card is issued by CIS and an EAD is no longer necessary.

There are also persons with a status that is neither nonimmigrant nor immigrant who are eligible to apply for permission to work in the U.S. DACA petitioners (also called “Dreamers”) are issued EADs for two years upon approval of their application. A person with a final order of removal who cannot be sent back to their native country is issued an EAD to prevent him or her from becoming a burden on the public assistance system.

There are other situations which may result in the issuance of a work permit. If a person believes that they are eligible for an EAD, they should consult an attorney to discuss their immigration status in the U.S. and whether CIS will approve an EAD application.

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