Volume 10 - Employment Authorization

U.S. Citizenship and Immigration Services (USCIS) is providing policy guidance in the USCIS Policy Manual regarding applications for discretionary employment authorization based on 8 CFR 274a.12(c)(9) (pending application for adjustment of status under INA 245) or 8 CFR 274a.12(c)(14) (grant of deferred action). USCIS is also providing guidance outlining the categories of aliens eligible for discretionary employment authorization.

This technical update removes the exemption from discretion for asylum applicants seeking employment authorization under 8 CFR 274a.12(c)(8). The Asylum Application, Interview, and Employment Authorization for Applicants Final Rule (Final Rule) (effective August 25, 2020) amended 8 CFR 274a.13(a)(1) to eliminate the exemption. Accordingly, asylum applicants who file applications for employment authorization on or after August 25, 2020 are subject to discretion like other applicants seeking employment authorization under 8 CFR 274a.12(c). Note: On September 11, 2020, the U.S. District Court for the District of Maryland in Casa de Maryland et al v. Chad Wolf provided limited injunctive relief to members of two organizations, CASA de Maryland (CASA) and the Asylum Seeker Advocacy Project (ASAP), in the application of the Final Rule to Form I-589s and Form I-765s filed by asylum applicants who are also members of CASA or ASAP. Therefore, while the rule is preliminarily enjoined, we will continue to apply the prior regulatory language and exempt from discretion CASA and ASAP members who file a Form I-765 based on an asylum application.

U.S. Citizenship and Immigration Services (USCIS) is consolidating existing policy guidance in the USCIS Policy Manual regarding the discretionary analysis required in the adjudication of certain benefit requests, including certain applications for employment authorization.

This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].

U.S. Citizenship and Immigration Services (USCIS) is updating its existing policies on the exercise of discretion to address the use of discretion when assessing if certain foreign nationals who are paroled into the United States should be employment authorized.