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Practice Note
USCIS Publishes Interim Rule Lifting the One Year Limitation on EADs

One more new development that will affect our readers and clients' right in good way!

On July 30, 2004, the USCIS publishes a long-delayed interim rule on the Federal Register lifting the one-year limitation on the EAD (Employment Authorization Document). This interim rule amends BCIS regulations governing issuance of 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.

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.

It is noteworthy that the interim rule does not set standard for the discretion to be exercised by BCIS. As such BCIS will issue field guidance to ensure that adjudicators use standard criteria when exercising their discretion in establishing EAD validity periods.

Presently, BCIS receives more than 950,000 Form I-765 applications for EAD renewal per year. 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.

The revisions made by the Interim Rule to the Regulation 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.

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