EMPLOYMENT AUTHORIZATION DOCUMENTS (EAD) FOll CERTAlN BENEFICIARIES OF APPROVED 1-140 PETITIONS

This paper explores open market Employment Authorization Document (fAD) regulatory changesunder consideration to better assist and provide stability to the beneficiaries of approved employment-based immigrant visa petitions. The current draft regulation limits EADeligibility to primarybeneficiaries and their derivative family members with an 1-140 petition that has been approved for atleast one year.1 The current draft regulation contemplates EADeligibility for individuals who are inlawful nonimmigrant status at the time of filing the EADapplication.

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 ofindividuals covered and excluded, and the pros and cons of each proposed option. The options areenumerated from the most inclusive to the least inclusive. The Office of PoUcyand Strategyrecommends Option 2, in which EADsmay only be granted to individuals who are lawfully present inthe United States.

1. fAD may b.egranted to indMduals who are physkalfy 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 clS /lEWis"); and/or nonimmigrantoverstays.

Population Excluded:• Individuals with an approved 1-140 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 isavailable.

1The regulations as currently drafted anticipate that EAD eligibility will cease once the beneficiary's priority date has beencurrent for one year. This limitation will ensure that a beneficiary may no! continually remain in the United States unless heor she maintains a current intent to adjust status to permanent residence.

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

• This would be consistent with the current practice and form instructions of the Form 1-765Application for Employment Authorization Document which require individuals to be physicallypresent in the United States.

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

• Contributes to our economy and increase our federal, state, and local tax base as theseindividuals 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 apopulation that is in the most need of relief. While individuals who are lawfully present or arein nonimmigrant status generally have other means of emolovment.authoriaarlon, those whoare out of status, overstays Of EWls have no means to lawfully work and remain in the UnitedStates even though they have an approved 1-140 petition demonstrating a need for theiremployment in the United States.

• The Form 1-765 adjudication would be more straightforward under this all-inclusive proposalbecause it would simply require an approved 1-140.

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 unlawfulpresence inadmissibility for whiFh a waiver is required. Therefore, in a sense this option mightnot support the macro-level policy goal of retaining these individuals until they are ready andable to become immigrants.

• It may be viewed as faciHtating or supporting illegal immigration. May actually encourageindividuals to overstay or EWI, Which would adversely affect the integrity of our immigrationsystem, and it would seem to reward those who have violated immigration laws?

• It may be viewed as saturating the US. labor market with foreign workers taking jobopportunities 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 asan attempt to circumvent other programs subject to wage provisions and numerical caps, such 'as H-IBs, where work authorization would no longer be available based on those caps, or as away to circumvent established categories where the individual may not otherwise qualify.

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2 This option would provide work authorization to eligible individuals but such individuals may be ineligibte to adjust statusbased on an offer of permanent employment due to inadmissibility issues, and because such individuals would not have alawful nonimmigrant status in the Il.S.3 Note, however, that it is reasonable to presume that any overstay or EWI would prefer a lawful status over an EAD.

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

it It may be viewed by Congress as an attempt to circumvent other programs subject to numericalcaps and wage provisions, such as H·1Bs, where work authorization would no longer beavailable based on those caps; or as a way to circumvent established categories where theindividual 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 lawful'ly present in the United States, induding ncnirnrnigrants whose

lawful nonimmigrant status may have expirecib.l.:fthave timely filed an extension of stay orchange of status within an authorized period 9f admission as contemplated by 8 CFR parts214.1 and 248.1.

• Parolees.• A broad range of individuals who either entered'iHegally or whose stay expired, but who are

nevertheless allowed to remain in the United States'·andhot accrue unlawful presence. Theseclasses of individuals may already be eligible for EADsunder a myriad of categories related totheir authorized presence, such as TPS, DED, DACA, adjustment of status applicants, and asylumapplicants, among

Population Excluded:• Individuals with an approved 1-140 petition and their family members who are overseas;• EWls; and• Nonimmlgrant 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 nonimmlgrants, by allowingthem to work and contribute to our economy and increase our federal .•state, and local taxbase.

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

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

• The proposed relief can be used by individuals who have an approved 1·140 and are within agrace period contemplated In the draft AC21 regulations. Such individuals may apply for the 1-140 EADand remain in the United States in order to secure other employment, while they waitfor their immigrant visa number to become available.

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Cons:• Form 1-765 adjudications would be very complicated and would substantially increase

adjudication time, including RFEissuance. 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 theUnited States. This is not a determination that can be made by a simple system look-up, butrather, this determination requires an in-depth analysis of the individuals' overall immigrationhistory, 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 nonimmigrant status.

• It may be viewed as saturating the U.S. labor market with foreign workers taking jobopportunities 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 numericalcaps and wage provisions, such as 14-1Bs, where work authorization would no longer beavailable based on those caps, or as a way to circumvent established categories where theindividual may not otherwise qualify.

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

3, EAOmay only be granted to Individuals who are in lawful nonimmigrant status at the time offiling the EAO.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 byregulation) .

Population Exc.luded;• Parolees, as they are not admitted in a nonimmigrant status;

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• Nonlmrrugrarrts who have overstayed their authorized period of adrnlssion.:• Nonirnrnigrants with pendi'1g applications for change of status or extension of stay whose

authorized stay hasexpired'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 bySEVP,among others);

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

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• Individuals with pending asylum applications;• Individuals in removal proceedings;

• EWls; and• Individuals with an approved 1-140 petition and their family members who are overseas.

Pros:• Could be viewed as maintaining the integrity of the legal,mm.1gration system by further

restricting EADeligibility.• Complements the recently finalized H-4 EAD rule, aSlJlell~s.numerous other employment

authorization provisions, because it requires the a~JI)licant ti;)maintaln lawful nonimmigrantstatus.

• Aligns with the macro-level policy goal of attracting and retaining globa! talent to the UnitedStates, as it provides work authorization in rnanv cases to individuals who have held a highly-skilled nonimmigrant status. It also opens the possibility of work authorization to spouses andfamily members of foreign nationals in nonimmigrant status who are on the path to lawfulpermanent residence.

• Gives flexibility to foreign nationals to pursue employment options other than the current 1-140employer.

• Eliminates the n('\I''''nl·til~'ltj$s;lJaI1Ce of multiple EADs to individuals already employmentauthorized, the vulnerability of misuse.

• By limiting this to individuals in a valid nonimmigrant status at the time offiling, this would fraud and reduce incentives for illegal entry and statusviolations,

• It would support individu'al~:lJIho are 01'1 path to permanent residence but who are runningout oftime in nonimmigrant status, them to work and contribute to our economyand increase our federal, state,a;flq local tax base.

• The proposed relief can be used b\I\lndividua!s who have an approved 1-140 and are within agrace period contemplated in the draft AC21 regulations. Such individuals may apply for the 1-140 EAD and remain in the United States in order to secure other employment, while they waitfor their immigrantvisa 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 notemployment authorized, such as F and J ncnimmlgrants.

• It may be viewed as saturating the U,S. labor market with foreign workers taking jobopportunities 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 wageprovisions and numerical caps, such as 1-I-1Bs,where work authorization would no longer be

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available based on those caps. Or as a way to circumvent established categories where theindividual may not otherwise qualify.

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

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

• Would not cover individuals who do not have a valid nonimmigrant status; however, this wouldbe mitigated by the fact that some affected individuals might have other protections and/orwork authorization (e.g, TPS, DED, DACA,).This population may already have the workpermission they need and not avall themse!ve~9fthis separate option.

• Individuals who are on the path to permanentresidence, but who have run out ofnonimmigrant options because their lawful status has lapsed, would be able to work and tocontribute to our economy.

4. EAD may only be granted to individuals who are in ~ertain lawful nonimmigrant status, t.e.excluding H·1i3sor l-lAs.

Population Included:• Individuals inspected and admitted in a lawful nonimmigrant status whose status has not

expired (including all departure preparation periods, e.g., "grace periods" provided byregulation), except for individuals who are in H-1B or L-1A status."

Population Excluded:• Individuals in H-1B or L-1A status;• Parolees, as they are not admitt¢d in a nonimmigrant status;• Nontrrnnigrants who haveoverstav~~ their authorized period of admission;• Ncntrnmigrants with pending applications for change of status or extension of stay whose

authorized stay has expired while such application is pending;• Ncnimmlgrants who fail to maintain their lawful nonimmigrant status (includes working

without authorization, students and exchange visitors whose status has been terminated bySEVP, among others);

• Individuals with pending asylum applications;

S In enacting AC21 as amended by DOJ 21, Congress specifically provided a means by which 1i-18 nonirnrnigrants mayremain and work in the United States even if an immigrant visa is unavailable. Under the new H-4 fAD rule, certain H-4dependents of prlnclpal H-1Bs may now work in the United States outside of the adjustment of status context. Given theseexisting legal provisions, it is unclear how many H-1B and H-4 nonlmmigrants this proposed EAD provision would benefit.

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

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

• Individuals in removal proceedings;

• EWls; and• Individuals with an approved 1-140 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. Toexpand this statutory benefit beyond the plain language of the statute may make the rule morevulnerable to a challenge in court. Second, as AC2! was meant to alleviate INS backlogs andnot the unavailability of immigrant visas, distancing the rule from AC21 could further helpinsulate it from litigation.

• By not excluding 1i-1Bs, the rule may reduce the number of H-IB petitions filed. This couldprovide a means to circumvent H-'tB wage protections. A reduction in H filings would reduce Hfees used for training U.S. workers, combating fraud, arid border protection. Of the amountsdeposited into the H-1B Nonimmigrant Petitioner Accountt55% ofthe fee revenue is providedto the Department of tabor, 40% is provided to the National Science Foundation and 5%percent is retained by USCIS.

• Based on sections 110 and 111 of AC21 and theaccompanvlng legislative history, anyEAD/advance parole program that could result in reduced fees to the. H-1B NonimmigrantPetitioner Account would run directly contrary to one of the main purposes of AC21, which wasto boost funding to help educate Americans such that continued reliance on the H-IB programto address this shortage of high skilled workers would no longer be needed. See section 286(s)of the Act, 8 U.S.c. § 13S6(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 1-140 and are within a

grace periodcontemplatedjn.the draft AC21 regulations. Such individuals may apply for the 1-140 EAD and remain in the United States in order to secure other employment, while they waitfor 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~la 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

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1~485application that has been pending for more than 180 days, but not those individuals whofall in between.

• Results in disparate treatment of high-skilled workers and therefore carries litigation risk.• H-1Bs (other than those who benefit from A(21) and L-1Asare subject to a maximum period of

admission and therefore, through no fault of their own, may fall out of status while they areawaiting a visa number to become immediately available. Other nonimmigrant categories, suchas ESt Fs,as, certain Psdo not have a maximum limitation of admission that would necessitatea measure to address the gap that may be created by needing to wait for the visa number tobecome immediately available.

Final Note:

The Administrative Appeals Office has raised a concern. that issuing an tAD off of an approved 1-140would grant a benefit directly from the !-140 alone. This has never been done and it has always beencontingent on having an 1-485 filed. To grant a benefit directly from the 1-140 may increase beneficiarystanding claims in cases of revocation. In this instance, the beneficiary would have a tangible benefitto lose. This raises a question: would the beneficiaries be able to successfully contest standing even incaseswhere the 1-14Q is denied, as they would not later receive an expected benefit?

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