Under New Interim Rule, USCIS May Issue EAD’s Valid For Longer Or Shorter Than One Year

IMMIGRANTS & EMPLOYMENT

IRCA Employment Verification and
Antidiscrimination Protections

UNDER NEW INTERIM RULE, USCIS MAY ISSUE EADs VALID FOR LONGER OR SHORTER THAN ONE YEAR
Immigrants' Rights Update, Vol. 18, No. 5, August 9, 2004

Under an interim rule issued July 30, 2004, which took effect immediately, U.S. Citizenship and Immigration Services (USCIS) may now issue to certain non–U.S. citizens employment authorization documents (EADs) that are valid for terms longer or shorter than one year, depending on the circumstances that obtain in each individual case.

Under 8 CFR sec. 274a.12(a), noncitizens with certain immigration statuses are authorized to work in the U.S. by virtue of their particular status. These include lawful permanent residents, lawful temporary residents, refugees and asylees, persons granted temporary protected status, persons with K (fiancée) or T (victims of human trafficking) visas, and others. Despite being automatically eligible to be employed in the U.S., some of these immigrants still must apply to USCIS for a document that establishes their employment authorization. Under 8 CFR sec. 274a.12(c), noncitizens with certain other immigration statuses are required to apply for employment authorization before they may be employed in the U.S. These include people who have pending applications for adjustment of status, applicants for suspension of deportation (such as under the Nicaraguan Adjustment and Central American Relief Act of 1997), and those who are in deferred action status or who have been paroled into the U.S. for a temporary period. In most cases, USCIS has issued EADs that are valid for one year per issuance.

Under the new interim rule, USCIS will now be able to issue EADs that are valid for more or less than one year, depending on a variety of criteria, including: the applicant’s immigration status; the amount of time it generally takes to process the underlying application or petition; what background checks are required for the applicant and how much time it generally takes for other government agencies to complete such checks; and other security considerations and factors as deemed appropriate by USCIS. The rule also provides the agency with the discretion to modify an EAD’s validity period when it issues renewal or replacement cards. And USCIS now may issue EADs valid for periods of up to five years to persons granted asylum by an immigration judge or the Board of Immigration Appeals.

Under the previous regulations, most EADs issued were valid for one year, so that noncitizens whose underlying immigration status was valid for more than one year or whose underlying application for an immigration benefit was likely to be pending for more than a year were required to apply for renewal cards, thus creating additional work and expense for both them and USCIS. According to the Federal Register notice announcing the new interim rule, the agency plans “to issue field guidance to ensure that adjudicators use standard criteria when exercising their discretion in establishing EAD validity periods.” USCIS still believes it is critical for security reasons to have the EAD expire periodically, just as the Form I‑551 alien resident (“green”) cards—which are issued for a ten-year validity period—do.

According to the Federal Register notice, the specific changes being made to the regulations regarding EADs for asylees under 8 CFR secs. 274a.12(a)(5) and 274a.13(a) are to facilitate USCIS’s immediate compliance with its statutory obligation under sec. 309 of the Enhanced Border Security and Visa Entry Reform Act of 2002 (“Border Security Act”), which took effect in May 2002. Historically, persons who have been granted asylum by the immigration courts or the BIA have had then to apply separately for an EAD, despite the fact that, once they are granted asylum, they are automatically eligible to be employed in the U.S. This has created unnecessary hardship for many, since usually there has been a long delay between the time they were granted asylum and the time they received obvious proof, in the form of an EAD, that they are employment-authorized. To address this problem, the Border Security Act requires USCIS to provide such asylees with an employment authorization document “immediately upon . . . being granted asylum.”

These interim rules are sure to cause confusion among those who, besides the card-bearers themselves, are most likely to look at EADs: employers. One of the most complicated and burdensome requirements employers must complete is to reverify the employment eligibility of employees whose employment authorization is valid for only limited periods of time. Each reverification must be performed on or before the date the worker’s EAD expires. But because applications for EAD renewals are backlogged, workers often have to wait months before receiving an EAD renewal from USCIS. Thus, the agency’s plan to issue EADs that are valid for less than a year will likely only increase both the burden on employers who must reverify and the hardship on workers who will have to apply more often for renewals.

This new rule is likely also to make it harder for some employment-authorized workers to obtain Social Security numbers (SSNs), as well as driver’s licenses and state-issued identification cards. Issuance of SSNs to noncitizens is already generally delayed, sometimes for several months, because before issuing an SSN card to a noncitizen applicant the Social Security Administration first confirms the applicant’s information through the Systematic Alien Verification for Entitlements (SAVE) system. And some states have restricted the validity of driver’s licenses and IDs issued to nonimmigrants to the period of validity of the documents they present to establish that they are lawfully present in the U.S.

The due date for comments on the interim rule is Sept. 28, 2004. Comments submitted via regular mail should be sent to: Director, Regulations and Forms Services Division, Dept. of Homeland Security, 425 I Street, NW., Room 4034, Washington, DC 20536, and should reference “BCIS No. 2152-01.” Comments submitted via email should be addressed to rfs.regs@dhs.gov, and the subject box should contain “CIS No. 2152-01.”

69 Fed. Reg. 45555–57 (July 30, 2004).