Chapter 1 - Purpose and Background
For a few select categories of noncitizens, the Immigration and Nationality Act (INA) grants employment authorization outright or directs the Secretary to authorize employment and provide an endorsement of that authorization. For other categories of noncitizens, 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:
Noncitizens authorized to work in the United States incident to their immigration status (8 CFR 274a.12(a));
Noncitizens who are authorized to work in the United States but only for a specific employer (8 CFR 274a.12(b)); and
Noncitizens 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 noncitizens 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) (directing the Secretary to authorize the employment of spouses of L nonimmigrants and provide an employment authorized endorsement); INA 214(e)(2) (directing the Secretary to authorize the employment of spouses of E treaty traders and investor and provide an employment authorized endorsements); and INA 214(3)(B) (directing the Secretary to provide U nonimmigrants employment authorization). In addition, see INA 274A(h)(3)(A) (defining “unauthorized alien” as not including lawful permanent residents).
[^ 2] For example, Congress has authorized that the Secretary may choose to authorize employment to noncitizens like applicants for asylum (INA 208(d)(2)), spouses and children of A, G, E-3, and H nonimmigrants who have been battered or subjected to extreme cruelty (INA 106(a)), those with pending, bona fide petitions for U nonimmigrant status (INA 214(p)(6)), and the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA) (Division A, Title IX of Pub. L. 105-277 (PDF) (October 21, 1998)). Most other discretionary employment authorization is established by regulation and is based on the Secretary’s statutory authority under INA 103(a), as well as the provision at INA 274A(h)(3).