Due to COVID-19, nearly all green card applicants have experienced some sort of delay. This extends not only to fingerprints and ultimately interviews, but employment authorization documents as well. Interestingly, in the waning days of the Trump Administration, USCIS released a policy memo pertaining to work permits and the criteria under which they are granted. The guidance applies to work permits granted under 8 CFR 274a.12(c)(9), pending applications for adjustment of status under INA 245); and 8 CFR 274a.12(c)(14) which relates to deferred action. What the memo essentially says is that eligibility for work authorization for these two types of applications are granted at the agency’s discretion. While work permits have normally been approved and issued as a matter of course, this alert does make clear that issuance is not automatic and subject to review and evaluation by an officer. When it comes to work permits based on pending adjustment of status cases, officers are instructed to grant authorization on a case-by-case basis, taking into consideration the totality of the circumstances. In general, a favorable decision will likely hinge on a preponderance of positive factors over negative ones, and a showing that a favorable exercise of discretion is warranted. While decisions cannot be arbitrary, inconsistent, or based on imagined or intangible circumstances, they are administratively final, with no opportunity to be appealed by the applicant.
Given this, it is important to appreciate what factors USCIS will look at in determining whether to approve a work permit application based on category (c)9. While this list is not exhaustive, the following are some critical factors that will be evaluated by an officer:
- Whether the applicant has met the eligibility requirements for adjustment of status
- The applicant’s family and community ties
- The applicant’s immigration status and history
- The applicant’s business, employment, and skills
- The applicant’s community standing and moral character
- The presence or absence of other significant factors reflecting on the applicant’s good moral character
The first factor in many ways, appears to be a dispositive issue. The officer must first determine whether the applicant appears to satisfy the basic eligibility requirements for a green card. If not, the application for work authorization should be denied as a matter of discretion, even if the positive factors outweigh the negative factors.
For most applicants who are applying for adjustment of status—which can take anywhere from one to two years depending on individual circumstances—permission to work during the pendency of the application is critical to economically maintain themselves (or their households). Going forward, one should not assume as in times past that one will automatically receive a work permit during the process. A carefully prepared application should include evidence and proofs addressing the factors that are listed above in order to minimize chances of a Request for More Evidence (RFE) or worse, a denial of the I-765.
If you need help in preparing or renewing your work permit application, our office can assist you in filing the I-765 with the proper documentation. The above is general information only. It is not specific legal advice nor intended to create an attorney client relationship. If you need advice, please consult with an attorney.