Receiving an employment authorization document (EAD), or work permit, is known amongst immigration lawyers and analysts as an immigration “benefit”, meaning that it is a status you can become eligible for by means of applying for a green card or other legal statuses in the United States. Because it is a benefit in the immigration dialectal, the adjudication process and fact-finding process that officers go through in order to approve or reject I-765 applications weighs on several different factors and burdens of proof that need to be established by an applicant. This blog will focus on the recent changes in the adjudication procedure for EAD applicants.
Most immigration blogs simply focus on adjudication as a step in the process, but breaking down the adjudication process into its various components is also important so applicants know what the I-765 has its own separate burden of proof that needs to be established.
The ILRC—Immigrant Legal Resource Center, has outlined some of the fact-finding criteria that are specifically used by USCIS officers in the I-765 process.
1. Tax Compliance in an Immigrant Run Family Business
Here is a list of some of the factors that adjudicators will weigh on that are less talked about, but absolutely weighed into the decision making process of officers reviewing I-765 applications:
- The likelihood that the applicant will receive LPR status soon
- Community service beyond any imposed by a court order
- Tax compliance/business compliance of a family business run by other family members present in the U.S.
- Evidence regarding respect for law and order, good character, and intent to hold family responsibilities
- Information indicating a public safety or national security concern
- History of unemployment or underemployment
- Unauthorized employment in the United States (ILRC, 2020)
Specifically, if an I-765 applicant is applying for a work permit because they want to work in the family business of an immigrant run business in the United States, one of the adjudication procedures in terms of fact-finding will be to run an audit on the immigrant company to make sure that the business is complying with the law, that the business is legally certified to be operating where it is operating, and to make sure the business is complying with state laws. This might not always happen but this procedure has been added to the fact-finding capabilities of USCIS officers.
This is significant because it shows an added layer to the EAD process in which the USCIS will go beyond the principal applicant and extend their discretionary analysis to that of a family business or enterprise to see the connection made to the principal applicant. Some have argued that this is an unnecessary procedure but it still remains in effect today. I-765 applicants who want to work in their family business should make sure their family run businesses financials are in check, as well as provide the following documentation (if applicable):
- Food handling license if in the restaurant industry (different in each state)
- Evidence that anyone running or working at the business has legal working authorization
- Evidence that family members running or working at the business are complying with tax laws
- Evidence that family members have not previously overstayed visas (ILRC, 2020)
2. Unauthorized Employment
Another major issue in the I-765 application comes down to the applicant's previous working history in the United States. In the I-765, applicants do not have to list previous jobs held, but they do need to list information surrounding their I-94 Record of Entry and Exit into the United States, where an officer will be able to determine if the applicant in question has ever been an EWI—Entry Without Inspection applicant.
If this is the case, and the applicant has ever worked illegally (meaning in an unauthorized fashion in the U.S.) they can have their work permit application effectively rejected for not complying with the law. If this is the case, applicants might want to seek the counsel of an immigration attorney and discuss the options of filing an I-601A Waiver on the Ground of Inadmissibility.
3. Criminal History and Deferred Action
Another major issue with receiving an EAD card is that applicants might be in a dire economic situation, and thus are applying for a work permit in the United States. DACA recipients have especially fit into this category in the past, as their abilities and entitlements in the U.S. are limited, and so working and having income generation is absolutely essential (especially when such applicants don’t have a strong safety net/family in the U.S.).
But DACA or more generally deferred action recipients are particularly scrutinized by the USCIS for possible links to any illegal activity, such as the following:
- The alien has been convicted of driving while under the influence or while being intoxicated
- The alien has been convicted of any criminal offense related to drugs or illegal substances
- The alien has previously been found to working in the U.S. illegally (ILRC, 2020)
Deferred action recipients should be aware that the USCIS will deny applicants a work permit even if they are in a dire economic situation given one of the above criteria is found and weighs negatively on their adjudication procedure.