BCIS Clarifies That Asylees And Refugees Are Employment-Authorized Whether Or Not They Have An EAD

IMMIGRANTS & EMPLOYMENT

IRCA Employment Verification and
Antidiscrimination Protections

BCIS CLARIFIES THAT ASYLEES AND REFUGEES ARE EMPLOYMENT-AUTHORIZED WHETHER OR NOT THEY HAVE AN EAD
Immigrants' Rights Update, Vol. 17, No. 2, June 3, 2003

The Bureau of Citizenship and Immigration Services has issued guidance to clarify that immigrants who have been granted asylum or who are refugees are authorized to work in the United States incident to their status, whether or not they have obtained an employment authorization document (EAD, Form I-766 or I-688B). The guidance was issued in the form of a memorandum from William Yates, BCIS acting associate director for Operations, to all regional directors.

The memo explains that some confusion has resulted from ambiguous language in the regulations, which provide that asylees are employment authorized incident to their status "for the period of time in that status, as evidenced by an employment authorization document issued by the Service." 8 C.F.R. § 274a.12(a)(5). Confusion has also resulted from a statement in the introductory paragraph to this provision that an individual to whom this provision applies "who seeks to be employed in the United States must apply to the Service for a document evidencing such employment." The guidance explains that these references concern the procedures by which an asylee may obtain evidence of employment authorization, rather than imposing any requirement that the asylee apply for an EAD in order to have employment authorization. The same conclusion applies to refugees.

The guidance notes that an EAD is a useful form of evidence of employment authorization, because it also serves as evidence of identity and thus is a single document that satisfies all employment eligibility verification requirements. However, "failure to obtain an EAD does not result in a lack of employment authorization." The guidance instructs the field that "[t]he date employment authorization begins for asylees and refugees is the date on which they attained their asylee or refugee status irrespective of the issuance of an EAD, and continues for so long as they are in that status. Upon adjustment to lawful permanent resident status, their work authorization further continues."

"The Meaning of 8 CFR 274a12(a) as it Relates to Refugees and
Asylee Authorization for Employment," HQADJ 70/21.1.13
(Mar. 10, 2003), reprinted at 80 Interpreter Releases 520-22
(Apr. 7, 2003).