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Chapter 5 - Discretion

Alert

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 Asylum Application, Interview, and Employment Authorization for Applicants 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.

A. Discretionary Authority and Applicability

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.[1]

The regulations outlined at 8 CFR 274a.12(c) specify categories of aliens who must apply for employment authorization and may be granted employment authorization as a matter of discretion; these aliens are referred to in this chapter as Category C applicants.[2]

For those Category C applicants seeking both employment authorization and an employment authorization document (EAD), the applicant must generally file an Application for Employment Authorization (Form I-765) with USCIS with the appropriate fee (unless waived), and in accordance with the form instructions.[3] 

In addition to verifying the applicant’s identity and that the applicant meets all other eligibility criteria, USCIS must determine if a favorable exercise of discretion is warranted in granting employment authorization to a Category C applicant. USCIS determines whether to grant discretionary employment authorization on a case-by-case basis by taking into account all factors and considering the totality of the circumstances.

Exercise of Discretion[4]

The adjudication of Category C applications is generally subject to the discretion of USCIS.[5] In deciding whether to grant employment authorization, USCIS makes a case-by-case determination considering all relevant information. The ultimate decision to grant discretionary employment authorization for a Category C applicant depends on whether, based on the facts and circumstances of the case, USCIS finds that the positive factors outweigh any negative factors that may be present, and that a favorable exercise of discretion is warranted.[6] The denial of employment authorization is not subject to administrative appeal.[7]

Footnotes


[^ 1] See INA 274A(h)(3). See 8 CFR 274a.13(a)(1).

[^ 2] See 8 CFR 274a.13(a)(1). The approval of applications filed under 8 CFR 274a.12(c), except for 8 CFR 274a.12(c)(8), is within the discretion of USCIS.

[^ 3] See 8 CFR 274a.13. See uscis.gov/i-765.

[^ 4] For more information on the exercise of discretion, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 8, Discretionary Analysis [1 USCIS-PM E.8].

[^ 5] See 8 CFR 274a.12(c). See 8 CFR 274a.13(a)(1). See also regulatory provisions that contain EAD eligibility requirements which may limit discretion. Effective August 25, 2020, the Asylum Application, Interview, and Employment Authorization for Applicants Final Rule removed the exemption from discretion outlined in 8 CFR 274a.13(a)(1) for asylum applicants seeking employment authorization under 8 CFR 274a.12(c)(8). See 85 FR 38532 (June 26, 2020). Therefore, applications for employment authorization filed on or after August 25, 2020 by applicants for asylum are subject to discretion like other Category C applicants.

[^ 6] For a full discussion on discretionary analysis, see Volume 1, General Policies and Procedure, Part E, Adjudications, Chapter 8, Discretionary Analysis [1 USCIS-PM E.8]. 

[^ 7] See 8 CFR 274a.13(c).

Resources

Legal Authorities

8 CFR 274a Subpart B - Employment authorization

8 CFR 274a.12 - Classes of aliens authorized to accept employment

INA 103, 8 CFR 103 - Powers and duties of the Secretary, the Under Secretary, and the Attorney General

INA 274A - Unlawful employment of aliens

Appendices

No appendices available at this time.

Updates

Technical Update - Removing Exemption from Discretion for Asylum Applicants Seeking Employment Authorization under 8 CFR 274a.12(c)(8)

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.

POLICY ALERT - Applying Discretion in USCIS Adjudications

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.

Read More
Technical Update - Replacing the Term “Foreign National”

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”].