On December 12th, 2022 the American Immigration Lawyers Association and 112 other legal services, direct service providers, resettlement agencies, membership and advocacy organizations wrote a joint letter to the Department of Homeland Security (DHS) to speed up work permit processing, as well as address the inefficiencies and inequities in the policies and regulations on the processing of and access to employment authorization documents (EADs). Addressed to Secretary Mayorkas as the Director of the DHS and Director Jaddou as head of the US Citizenship and Immigration Services, the letter set out recommendations for change that could improve the situation dealing with employment authorizations.
Key points that were raised can be summarized as follows:
Shorten Form I-765 Application for Employment Authorization.
To make processing faster, USCIS should revert to using the prior 2-page form. The current seven-page form needlessly slows down processing.
Issue I-589 asylum application receipt notices in a timely manner.
In order to submit an asylum-seeker-based EAD application, proof of submission of the I-589 is required. However, in many cases, USCIS sends out USCIS receipt notices too late, longer than 180 days. This needlessly delays asylum applicants seeking to get permission to work since they need the receipt to apply for permission.
Issue initial work permits for asylum seekers that have a longer validity period.
Issuing an EAD valid for 5 years or longer would decrease the number of renewal applications USCIS is required to process, freeing up agency time and resources.
Implement online filing for all categories of I-765 work permit applications and fee waivers.
Ensuring access to e-filing for all EAD applicants, including for applicants who apply for a fee waiver, will eliminate USCIS staff time devoted to opening, scanning, and unclipping physical applications.
Automatically re-issue I-765 renewal receipt notices for every applicant eligible for an automatic extension clearly indicating that their employment authorization has been extended for 540 days.
Even when applicants qualify for the auto-extension under the regulation, many employers and state departments of motor vehicles refuse to accept an expired EAD without a receipt notice that explicitly confirms that the EAD remains valid for the 540-day extension.
Lengthen the I-94 work eligibility period for refugee applicants and partner with the State Department to reduce work permit application processing times initiated in START.
Refugees resettled through the US Refugee Admissions Program (USRAP) are authorized to work upon arrival. Refugees can work with a Form I-94 for 90 days before they must produce additional valid documents, like a work permit. Because of the delay in processing work permit applications, many refugees cannot get a work permit before the 90 days expire. USCIS should lengthen the I-94 work eligibility document for at least 180 days to give refugees enough time to work with an I-94 while the work permit application is processed.
Issue a regulation expanding the definition of “asylum application” to allow applicants to apply for a work permit earlier.
This could include a positive Credible Fear or Reasonable Fear decision, a parole request, or the filing of a defensive asylum application for biometrics with USCIS for purposes of work permit eligibility.
Expand the category of individuals who are eligible for an auto-extension of their work permits.
USCIS has extended many asylum seekers’ work permits for up to 540 days after the EAD expiration date if they timely filed applications for renewal. This should be expanded to apply to individuals of other categories as well. Excluding these individuals leaves thousands in limbo and causes employers to lose valued employees.
Authorize those granted INA § 241(b)(3) withholding of removal or protection under the Convention Against Torture (CAT) to work immediately, by making these “incident to status” work authorization categories.
This regulatory change will allow people to use their Form I-94 as proof of employment authorization without the need to file an I-765 form for a separate work permit. Allowing these individuals to work without requiring USCIS to adjudicate an application will preserve resources and decrease the number of work permit applications requiring USCIS officer time and attention.
Expand work authorization incident to status for all people granted humanitarian parole.
USCIS recently announced that certain people with parole from Ukraine and Afghanistan are authorized to work without applying for a work permit. USCIS should issue regulations that authorize all nationalities granted parole to work immediately.
Why Not Simplify Work Authorizations Further?
Looking at these recommendations more carefully, it seems that the whole area of employment authorization processing is a heavy burden on an overworked USCIS. The last two recommendations in the letter suggest a means of dealing with this problem more efficiently and humanely. It appears that the key document in this area is the I-94 record of the immigrant. That is the record that can be used by immigrants to prove their eligibility to work with employers. Employers can rely on that record to hire foreign workers. In the case of workers coming to the US to work in E and L visa categories, their spouses get automatic employment authorizations incident to admission with their I-94S records.
Why not simply rely on the I-94 record in all cases and make employment authorization incident to entry with an I-94 record? Let the I-94 record govern the period of authorized employment as well. This should be the case in the vast majority of immigrant cases. In exceptional cases, where this is not practical, one should then be able to turn to apply for an EAD. But short of that, it seems senseless to waste processing resources governing who can and cannot work by employing a second layer of bureaucracy on what already exists with the I-94 record. To distinguish between visitors and workers, a simple code can be employed, as it is in the E and L spousal cases where an S is added to the I-94 designation signally authorization to work as I-94S. So in other cases where the foreigner should be granted permission to work, a W could be added to the I-94 designation indicating the person concerned has been granted the right to work – recording the decision as I-94W.
Such an improvement would seem to help simplify this area significantly and relieve USCIS workers to work on processing other matters.