Chapter 1 - Purpose and Background
For a few select categories of aliens, the Immigration and Nationality Act (INA) grants employment authorization outright or directs the Secretary to authorize employment authorization and provide an endorsement of that authorization. For other categories of aliens, the INA provides that the Secretary may grant employment authorization and provide an endorsement of that authorization.
DHS regulations at 8 CFR 274a.12 set forth the following categories:
Aliens authorized to work in the United States incident to their immigration status (8 CFR 274a.12(a)),
Aliens who are authorized to work in the United States but only for a specific employer (8 CFR 274a.12(b)), and
Aliens who fall within a category that the Secretary has determined must apply for employment authorization and may receive employment authorization as a matter of discretion (8 CFR 274a.12(c)).
For most aliens in the first category seeking an Employment Authorization Document (EAD, Form I-766) and those in the last category seeking both employment authorization and an EAD, an application generally must be filed with USCIS with the appropriate fee (unless waived), and in accordance with the instructions to the Application for Employment Authorization (Form I-765).
[^ 1] See, for example, INA 210(a)(4) (authorizing employment for special agricultural workers); INA 214(c)(2)(E) (requiring spouses of L nonimmigrants to be work authorized); INA 214(e)(6) (requiring spouses of E treaty traders and investors to be work authorized; INA 214(p)(6) (requiring U nonimmigrants to be work authorized); INA 274A(h)(3)(A) (lawful permanent residents).
[^ 2] For example, Congress has authorized the Secretary to grant employment authorization, as a matter of discretion, to aliens like spouses and children of A, G, E-3, and H nonimmigrants who have been battered or subjected to extreme cruelty (INA 106(a)), aliens with pending, bona fide petitions for U nonimmigrant status (INA 214(p)(6)), aliens seeking adjustment of status under the Nicaraguan Adjustment and Central American Relief Act (NACARA) (Title II of Pub. L. 105-100 (PDF) (October 4, 1996), and the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA) (Division A, Title IX of Pub. L. 105-277 (PDF) (Oct. 21, 1998)). Most discretionary employment authorization is based on INA 274A(h)(3). For more information on exercising discretion generally, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 8, Discretionary Analysis [1 USCIS-PM E.8].
No appendices available at this time.
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 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”].