New York Lawyer's Legal Updates

Recent USCIS Work Permit Rules Changes

Author: Green card lawyer Alena Shautsova

The Department of Homeland Security has issued another Policy Alert designed to ensure that more adjustment of status applicants leave the prospect of feeding their families at the whim of USCIS officials.

When a change in status is filed for, it is likely that you will require a piece of paper stating your eligibility to continue working. The USCIS used to operate on the basis that, whilst an application awaits adjustment, right to work would not be jeopardized. For many applicants, employment authorization was something usually granted automatically. This will change.

On-trend with its ideological move away from automatic grants, the USCIS has issued guidance to extend the use of discretionary powers in assessing work authorizations under changes of status applications. The USCIS literature states this:

While employment authorization for certain aliens is automatic or non-discretionary by virtue of their immigration status, other aliens must affirmatively apply for employment authorization and USCIS may grant employment authorization as a matter of discretion.

Here the USCIS is referring specifically to so-called category C applicants (those outlined under §274a.12(c)) Before the newly issued USCIS guidance, many more of these (category C) applicants would have been granted automatic renewal without discretionary interference at all. Granted asylees, registry applicants, those with temporary protected status, and the beneficiaries of approved self-petition under the VAWA scheme, would all have been certified approved without reference to USCIS officer discretion. Now, the fate of whole swathes of applicants - many of the C-type variety - will be decided by a process that involves individual determinations in the name of discretion.

It will be a case of whether the officer tasked with looking over a particular case feels that the individual in question is (I am not being derisory here) more positive than negative, on balance.

The Board of Immigration Appeals describes the legal exercise of discretion in this context as such:

A balancing of the negative factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented on his or her behalf to determine whether relief appears in the best interests of this country. A matter of administrative grace where the applicant has the burden of showing that discretion should be exercised in his or her favor. Consideration of negative factors and the need for the applicant to offset such factors by showing unusual or even outstanding equities.

In legal-speak, the above does mean a bit more than just determining whether the applicant is more positive or negative. The officer is doing more than just shooting from the hip. But only a little bit.

The Board of Appeals outlines a shambolic standard that says, in layman's terms, the USCIS Officer should outline everything detrimental to the interests of the US that he can attribute to the applicant he is investigating, and then weigh this against anything he finds positive. And, let’s not forget the burden of proof lies with the applicant. Oh, and in cases where there are negatives, the applicants ‘equities’ – any elevating virtues – must be ‘outstanding’ to balance the scales.

In its guidance, the USCIS issued an outline methodology that DHS officials would use in deciding on the fate of applicants. USCIS gave examples of favorable factors and unfavorable ones, that would tilt the scales for or against the approval of an application for work authorization. The pros column lay sparse: Being the sole breadwinner in a household which includes a US citizen, aiding a criminal investigation, etc. The negative column asks DHS officers to consider how law-abiding the applicant is: Has the applicant been arrested for the possession of a controlled substance? Have they ever gotten a DUI? Has the applicant misrepresented herself, ever?

If DHS Officers are given more scope to exercise their discretion regarding work authorizations there will be more injustice. USCIS Officers will be weighing up the pros and cons of more people. Employing one’s discretion in the context of deciding on cases of immigration is done so with US interests in mind. Officers will be weighing up DUIs against academic records, whilst applicants prey they meet the standard of demonstrating ‘unusual or outstanding equities’. Many applicants who find themselves subject to the discretionary overwatch of USCIS Officials will have behaved badly at some point. So, what constitutes unusual or outstanding equities exactly? In instances where arrests have been made, or charges brought, the burden of proof lay heavily at the feet of the applicant to prove they possess these great gifts to the US.

It is my concern that if more and more applications become subject to the discrimination of USCIS discretion – based on the heavy burden of bad behavior, or otherwise – many who would have automatically received a work authorization will be left cap in hand.

19 January 2021
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