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  • Interim employment authorization

    My wife is currently awaiting her I485 to be reviewed. In the meantime, we applied for a EAD. She recieved her initial EAD. And in September of last year we applied for a new one. after 90 days past, we waitied on line at the local INS office were they granted her a Interim employment authorization. We were told that she would receive her EAD in the mail. Her Interim employment authorization is about to expire and she has not reeived the EAD in the mail. Agian we went to the local INS and explained the situation. They told us that she had to apply for a new EAD and wait for it to be approved. In the meantime she cannot work.

    I cam confused. Is this correct? If it is we are fincially in trouble, she will loose her job!
    Please if anyone know what to do, the law please help me.
    Thank you,
    Joseph

  • #2
    My wife is currently awaiting her I485 to be reviewed. In the meantime, we applied for a EAD. She recieved her initial EAD. And in September of last year we applied for a new one. after 90 days past, we waitied on line at the local INS office were they granted her a Interim employment authorization. We were told that she would receive her EAD in the mail. Her Interim employment authorization is about to expire and she has not reeived the EAD in the mail. Agian we went to the local INS and explained the situation. They told us that she had to apply for a new EAD and wait for it to be approved. In the meantime she cannot work.

    I cam confused. Is this correct? If it is we are fincially in trouble, she will loose her job!
    Please if anyone know what to do, the law please help me.
    Thank you,
    Joseph

    Comment


    • #3
      josephtrue,

      What is your local office? 2nd interim EADs have been handed out in Oregon, Chicago, and Hartford that I have heard of. The maximum time on the interim EAD is 240 days so it seems you may have received one (given that you got it last December). It might be up to each office what their policy is.

      But....

      In late July, USCIS issued a policy change that might effect you. They now have the discretion to extend your EAD for longer periods than a year.

      I have appended the Federal Register announcement. You might take this to your local office and see if this might sway them.


      [Federal Register: July 30, 2004 (Volume 69, Number 146)]
      [Rules and Regulations]
      [Page 45555-45557]
      From the Federal Register Online via GPO Access [wais.access.gpo.gov]
      [DOCID:fr30jy04-1]


      ========================================================================
      Rules and Regulations
      Federal Register
      ________________________________________________________________________

      This section of the FEDERAL REGISTER contains regulatory documents
      having general applicability and legal effect, most of which are keyed
      to and codified in the Code of Federal Regulations, which is published
      under 50 titles pursuant to 44 U.S.C. 1510.

      The Code of Federal Regulations is sold by the Superintendent of Documents.
      Prices of new books are listed in the first FEDERAL REGISTER issue of each
      week.

      ========================================================================



      [[Page 45555]]



      DEPARTMENT OF HOMELAND SECURITY

      8 CFR Part 274a

      [BCIS No. 2152-01]
      RIN 1615-AA63


      Employment Authorization Documents

      AGENCY: Bureau of Citizenship and Immigration Services, DHS.

      ACTION: Interim rule with request for comments.

      -----------------------------------------------------------------------

      SUMMARY: This interim rule amends Bureau of Citizenship and Immigration
      Services (BCIS) regulations governing issuance of Employment
      Authorization Documents (EADs). Through this rule, BCIS will now
      establish EAD validity periods based on certain criteria, including:
      The applicant's immigration status; general processing time for the
      underlying application or petition; required background checks and
      response times for background checks by other agencies, as necessary;
      other security considerations and factors as deemed appropriate by
      BCIS. BCIS will have discretion to modify EAD validity periods both for
      initial, renewal, and replacement cards. BCIS also will be able to
      establish EAD validity periods for classes of aliens and for
      individuals within those classes whose cases warrant a lesser validity
      period. The rule also removes current regulatory language limiting EAD
      validity periods to one-year increments for certain classes of aliens
      who are required to apply for employment authorization. Finally, the
      rule amends BCIS regulations to reflect that BCIS will issue EADs to
      aliens granted asylum by the Department of Justice, Executive Office of
      Immigration Review (EOIR), with validity periods of up to five years,
      unless otherwise appropriate.

      DATES: Effective date: This rule is effective July 30, 2004.
      Comment date: Written comments must be submitted on or before
      September 28, 2004.

      ADDRESSES: Please submit written comments to the Director, Regulations
      and Forms Services Division, Department of Homeland Security, 425 I
      Street, NW., Room 4034, Washington, DC 20536. To ensure proper
      handling, please reference BCIS No. 2152-01 in your correspondence. You
      may also submit comments electronically at: rfs.regs@dhs.gov. When
      submitting comments electronically, you must include CIS No. 2152-01 in
      the subject box. Comments are available for public inspection at the
      above address by calling (202) 514-3291 to arrange for an appointment.

      FOR FURTHER INFORMATION CONTACT: Jonathan Mills, Residence and Status
      Services, Office of Program and Regulations Development, Bureau of
      Citizenship and Immigration Services, Department of Homeland Security,
      425 ``I'' Street, NW., ULLICO Building, Third Floor, Washington, DC
      20536, telephone (202) 514-4754.

      SUPPLEMENTARY INFORMATION:

      Who Is Affected by This Rule?

      This interim rule affects aliens who are required to apply for
      employment authorization or, if employment authorized incident to
      immigration status, to apply for evidence of employment authorization.
      This interim rule also affects aliens who have been granted asylum by
      EOIR and wish to obtain evidence of employment authorization.

      What Are the Current Requirements for EAD Issuance?

      Under 8 CFR 274a.12(a), certain aliens are authorized employment
      incident to their immigration status (e.g., lawful permanent residents,
      lawful temporary residents, parolees, aliens in Temporary Protected
      Status, etc.). Such aliens are eligible to work in the United States
      regardless of whether they receive an EAD. However, these aliens must
      apply to BCIS to receive an EAD evidencing their employment
      authorization. Under 8 CFR 274a.12(c), certain aliens are required to
      apply for employment authorization before they may begin to work in the
      U.S. (e.g., students seeking to perform optical practical training,
      aliens with pending applications for adjustment of status, etc.). Such
      aliens must apply to BCIS to receive an EAD authorizing them to work in
      the United States, as well as evidencing the fact that they are
      employment authorized.
      With limited exceptions, most classes of aliens who are employment
      authorized under 8 CFR 274a.12(a) or 274a.12(c) are required to apply
      for employment authorization using the Form I-765, Application for
      Employment Authorization. If BCIS approves the Form I-765, it will
      issue an EAD. For certain categories, the current regulations
      specifically limit the EAD validity period to one-year increments. In
      all other instances, and with limited exceptions, BCIS through policy
      has set EAD validity periods at one year.

      Why Is BCIS Removing the Current Regulatory and Policy Limitations on
      EAD Validity Periods?

      These regulatory and policy limitations often require an alien
      whose underlying status is longer than one year, or whose underlying
      application will remain pending with BCIS for longer than one year, to
      apply for renewal of the EAD every year, creating a burden on the
      applicant and an additional workload for BCIS. This rule gives BCIS the
      discretion and flexibility to modify EAD validity periods for initial,
      renewal, and replacement cards. BCIS also will establish EAD validity
      periods for classes of aliens and will preserve the discretion to
      establish validity periods of varying lengths for individuals within
      those classes whose cases warrant a lesser validity period. BCIS will
      issue field guidance to ensure that adjudicators use standard criteria
      when exercising their discretion in establishing EAD validity periods.
      For aliens who are employment authorized incident to status, BCIS
      does not contemplate issuing employment authorization documents that
      would expire only upon expiration of the alien's status. BCIS must
      reserve the right to periodically expire such documents and, where
      appropriate, issue new cards. This will allow BCIS to address any
      security concerns and to ensure the integrity of the EADs process by
      preventing fraud or misuse of such documents. BCIS intends to review
      all classes of aliens who are employment authorized to determine a
      general validity period for each class. For example, currently BCIS
      issues

      [[Page 45556]]

      permanent resident cards (Form I-551) with ten-year validity periods.
      Similarly, BCIS intends to issue EADs to asylees with a validity period
      of five years, unless otherwise appropriate. An expiration date on the
      card reflects only that the card must be renewed, not that the bearer's
      work authorization has expired.

      What Does This Rule Implement?

      This interim rule amends 8 CFR 274a.12(a) and (c) to eliminate
      provisions in the regulations that provide a maximum validity period
      for certain EADs. This rule also amends 8 CFR 274a.12(a)(5) to reflect
      that BCIS will issue initial EADs to aliens granted asylum by the EOIR
      with validity periods of up to five years, unless otherwise
      appropriate.

      Good Cause Exception

      The Department of Homeland Security (DHS) has determined that good
      cause exists under 5 U.S.C. 553(b)(B) and (d)(3) to make this rule
      effective July 30, 2004, for the following reasons: BCIS is modifying
      the regulations at 8 CFR 274a.12(a)(5) and 274a.13(a) to facilitate
      BCIS' immediate compliance with its statutory obligation under the
      Enhanced Border Security and Visa Entry Reform Act (``Border Security
      Act''), Pub. L. 107-173, 116 Stat. 543, 556-57; 8 U.S.C. 1158(c)(1)(B),
      which became effective in May 2002. The Border Security Act requires
      BCIS to provide asylees with initial evidence of employment
      authorization. BCIS also is removing the regulatory limitations on
      certain classes of one-year maximum validity periods to allow BCIS to
      set more flexible EAD periods. In certain instances, BCIS will be able
      to set validity periods for longer than one year, thereby benefiting
      the aliens and reducing BCIS workload associated with yearly EAD
      issuance. The delay in the implementation of this interim rule for
      consideration of public comments prior to the effective date of the
      rule will serve only to increase the current backlog of EAD
      applications. Accordingly, DHS finds that it would be impracticable and
      contrary to the public interest to delay the implementation of this
      rule to allow the prior notice and comment period normally required
      under 5 U.S.C. 553(b)(B) and(d)(3). DHS nevertheless invites written
      comments on this interim rule and will consider any timely comments in
      preparing a final rule.

      Regulatory Flexibility Act

      This rule will have a positive significant economic impact on a
      substantial number of small businesses described in the Regulatory
      Flexibility Act at 5 U.S.C. 605.
      With this rule, DHS addresses security concerns and improves BCIS
      efficiency by giving BCIS more flexibility in determining the
      appropriate validity period for EADs. Due to security concerns, DHS
      does not wish to have EADs issued with a validity period that is
      significantly longer than the immigration status or processing time of
      the application that the EAD is based upon. However, the validity
      period needs to be long enough to significantly lessen the burden
      created by the filing, adjudication, and issuance of EAD renewals.
      Removing this burden will allow BCIS to better focus its policy and
      resources upon improving the security and integrity of EADs and the
      security, integrity, and efficiency of BCIS application processes.
      In accordance with the President's long-term goal of a standard
      BCIS application processing time of six months, this rule is forward-
      looking, giving BCIS the flexibility to lessen the validity period of
      affected EADs as BCIS processing times make progress toward and then
      reach the President's goal.
      Considering all of these factors, DHS believes that a flexible
      validity period established by policy and taking into account security
      considerations, application processing times, and other factors is more
      appropriate than the inflexible validity periods contained in the
      regulatory provisions in place prior to this interim rule.
      This change will decrease costs for affected applicants in so far
      as they will be required to pay the $175 filing fee for the I-765,
      Application for Employment Authorization, in order to renew their EAD
      less frequently or, in some situations, not at all.

      Unfunded Mandates Reform Act of 1995

      This rule will not result in the expenditure by State, local, and
      tribal governments, in the aggregate, or by the private sector, of $100
      million or more in any one year, and will not significantly or uniquely
      affect small governments. Therefore, no actions were deemed necessary
      under the provisions of the Unfunded Mandates Reform Act of 1995.

      Small Business Regulatory Enforcement Fairness Act of 1996

      This rule is not a major rule as defined by section 804 of the
      Small Business Regulatory Enforcement Act of 1996. This rule will not
      result in an annual effect on the economy of $100 million or more; a
      major increase in costs or prices; or significant adverse effects on
      competition, employment, investment, productivity, innovation, or on
      the ability of United States-based companies to compete with foreign-
      based companies in domestic and export markets.

      Executive Order 12866

      This rule is considered by DHS to be an economically significant
      regulatory action under Executive Order 12866, section 3(f), Regulatory
      Planning and Review.
      Obtaining and then presenting an EAD to an employer is how many
      aliens verify their identity and employment authorization as required
      by Form I-9, Employment Eligibility Verification. To obtain an EAD, an
      applicant must submit a Form I-765, Application for Employment
      Authorization Document, to the appropriate BCIS service center or
      district office, along with a $175 fee or request for a fee waiver. The
      fee is necessary to comply with Public Law 100-459, which requires BCIS
      to prescribe and collect fees to recover the full cost of processing
      immigration and naturalization applications, petitions, and associated
      support benefits. An applicant who cannot afford to pay the fee may
      submit a fee waiver request by following the instructions in 8 CFR
      103.7(c). Therefore, the cost of filing each EAD renewal application is
      approximately $175.
      This regulation removes regulatory provisions limiting the validity
      period for some EADs. At present, BCIS receives more than 950,000 Form
      I-765 applications for EAD renewal per year. The removal of the
      regulatory provisions limiting EADs to no more than one year of
      validity will have no effect by itself. However, there would be an
      economically significant benefit stemming from the projected BCIS
      policy change to a process where the validity period of these and
      certain other EAD categories are established based on based upon
      security concerns, the underlying application or status, and other
      appropriate factors.
      This policy change would reduce the number of Form I-765
      applications for EAD renewal in the future. BCIS cannot yet estimate
      the magnitude of this reduction because the policy change is still
      under development. However, BCIS does plan to compensate for the lack
      of a yearly EAD renewal application from affected aliens by ensuring
      that certain security and background checks are generally completed
      prior to issuance of EAD that is valid for more than one year.

      [[Page 45557]]

      Executive Order 13132

      This rule will not have substantial direct effects on the States,
      on the relationship between the National Government and the States, or
      on the distribution of power and responsibilities among the various
      levels of government. Therefore, in accordance with section 6 of
      Executive Order 13132, it is determined that this rule does not have
      sufficient federalism implications to warrant the preparation of a
      federalism summary impact statement.

      Executive Order 12988 Civil Justice Reform

      This rule meets the applicable standards set forth in sections 3(a)
      and 3(b)(2) of Executive Order 12988.

      Paperwork Reduction Act

      Under the Paperwork Reduction Act of 1995, Public Law 104-13, all
      departments are required to submit to the Office of Management and
      Budget (OMB), for review and approval, any reporting or recordkeeping
      requirements inherent in a final rule. This rule does not impose any
      new reporting or recordkeeping requirements under the Paperwork
      Reduction Act. However, as previously stated under Executive Order
      12866, the DHS anticipates that as a result of this regulation there
      will be a reduction in the number of Form I-765 submissions.
      Accordingly, BCIS has submitted the Paperwork Reduction Change
      Worksheet (OMB-83C) to the OMB reflecting the reduction in burden hours
      for Form I-765 and the OMB has approved the changes.

      List of Subjects in 8 CFR Part 274a

      Administrative practice and procedure, Aliens, Employment,
      Penalties, Reporting and recordkeeping requirements.

      0
      Accordingly, part 274a of chapter I of title 8 of the Code of Federal
      Regulations is amended as follows:

      PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

      0
      1. The authority citation for part 274a continues to read as follows:

      Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.


      0
      2. Section 274a.12 is amended by:
      0
      a. Revising the introductory text of paragraph (a);
      0
      b. Revising paragraph (a)(5);
      0
      c. Removing the last sentence in paragraph (a)(15);
      0
      d. Revising paragraph (c);
      0
      e. Removing the second sentence in paragraph (c)(9);
      0
      f. Removing the last sentence in paragraph (c)(10);
      0
      g. Removing the last sentence in paragraph (c)(16);
      0
      h. Removing the last sentence in paragraph (c)(20);
      0
      i. Removing the last sentence in paragraph (c)(24);

      0
      The revisions read as follows:


      Sec. 274a.12 Classes of aliens authorized to accept employment.

      * * * * *
      (a) Aliens authorized incident to status. Pursuant to the statutory
      or regulatory reference cited, the following classes of aliens are
      authorized to be employed in the United States without restrictions as
      to location or type of employment as a condition of their admission or
      subsequent change to one of the indicated classes. Any alien who is
      within a class of aliens described in paragraphs (a)(3), (a)(4),
      (a)(6)-(8), or (a)(10)-(16) of this section, and who seeks to be
      employed in the United States, must apply to the Bureau of Citizenship
      and Immigration Services (BCIS) for a document evidencing such
      employment. BCIS may, in its discretion, determine the validity period
      assigned to any document issued evidencing an alien's authorization to
      work in the United States.
      * * * * *
      (5) An alien granted asylum under section 208 of the Act for the
      period of time in that status, as evidenced by an employment
      authorization document, issued by BCIS to the alien. An expiration date
      on the employment authorization document issued by BCIS reflects only
      that the document must be renewed, and not that the bearer's work
      authorization has expired. Evidence of employment authorization shall
      be granted in increments not exceeding 5 years for the period of time
      the alien remains in that status.
      * * * * *
      (c) Aliens who must apply for employment authorization. An alien
      within a class of aliens described in this section must apply for work
      authorization. If authorized, such an alien may accept employment
      subject to any restrictions stated in the regulations or cited on the
      employment authorization document. BCIS, in its discretion, may
      establish a specific validity period for an employment authorization
      document, which may include any period when an administrative appeal or
      judicial review of an application or petition is pending.

      Dated: July 20, 2004.
      Tom Ridge,
      Secretary of Homeland Security.
      [FR Doc. 04-16938 Filed 7-29-04; 8:45 am]

      BILLING CODE 4410-10-P

      Comment


      • #4
        My local office is new york.
        Thank you for the information. I don't know how helpful it is for my situation. But its comforting to know that you cared.
        Thanks again
        Joseph

        Comment

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