Chapter 3 - Noncitizens Granted Deferred Action
Noncitizens who have been granted deferred action may apply for employment authorization in the United States without restrictions as to the location or type of employment. Such noncitizens must affirmatively apply for employment authorization by properly filing an Application for Employment Authorization (Form I-765), and USCIS may grant employment authorization as a matter of discretion.
In general, employment authorization for noncitizens granted deferred action is only provided at USCIS’ discretion. Such noncitizens must apply for (and be granted) employment authorization before they may work in the United States. Upon approval of the employment authorization application, and while the Employment Authorization Document (EAD) is valid, the noncitizen’s type and location of employment is unrestricted.
The approval or denial of an EAD affects whether the noncitizen is authorized to work in the United States.
Exercise of Discretion
This chapter complements general guidance on discretionary adjudications by providing additional information on how officers should exercise discretion in cases involving applications for employment authorization filed by those who have been granted deferred action.
In addition to verifying the applicant’s identity and that he or she is in a period of deferred action, USCIS determines in its discretion whether to grant employment authorization on a case-by-case basis, taking into account all factors and considering the totality of the circumstances.
The exercise of discretion does not mean the decision can be arbitrary, inconsistent, or dependent upon intangible or imagined circumstances. At the same time, there is no calculation that lends itself to a certain conclusion. A discretionary determination on employment authorization for a noncitizen in a period of deferred action cannot be appealed.
Certain Noncitizens Exempt from Discretionary Analysis
While officers are generally expected to exercise discretion in the adjudication of Form I-765 associated with deferred action, some classifications are exempt from such a discretionary analysis.
By statute, DHS must provide deferred action and employment authorization to nonimmigrant domestic workers (A-3 and G-5) during any period the nonimmigrants file civil actions against their trafficker-employers regarding the terms and conditions of employment. In these cases, deferred action and employment authorization is intended to permit the nonimmigrant to remain legally in the United States for the amount of time sufficient to fully and effectively participate in all legal proceedings related to such civil actions.
In addition, USCIS considers the following populations exempt from a discretionary analysis when adjudicating applications for employment authorization:
- Victims of trafficking granted Continued Presence (PDF) by U.S. Immigration and Customs Enforcement (ICE) where ICE requests employment authorization on behalf of the victim based on parole or deferred action;
- Victims of trafficking with pending applications for T nonimmigrant status and their derivative family members, provided USCIS determines the application to be bona fide and provides written notice to the applicant;
- Violence Against Women Act (VAWA) self-petitioners and their derivative beneficiaries granted deferred action;
- Petitioners for U nonimmigrant status (principal victims and their qualifying derivatives) placed on the U visa waiting list and granted deferred action; and
- Noncitizens (and qualified family members) who assisted or are assisting a law enforcement agency as a witness or informant and have a pending request for S nonimmigrant status (Inter-Agency Alien Witness and Informant Record (Form I-854)).
In deciding whether a noncitizen granted deferred action should be granted employment authorization, USCIS makes a case-by-case determination considering all relevant information. The ultimate decision to grant employment authorization for a noncitizen who has been granted deferred action depends on whether, based on the facts and circumstances of each individual case, USCIS finds that the positive factors outweigh any negative factors that may be present, and that a favorable exercise of discretion is warranted.
Officers should consider and weigh positive and negative factors relevant to the individual case when conducting the discretionary analysis for employment authorization for noncitizens granted deferred action. The table below provides a nonexclusive, nonbinding list of factors officers may consider.
The officer should examine the totality of the evidence, weighing the positive and negative factors in each case, and determine whether a favorable exercise of discretion is warranted to grant work authorization.
Supervisory review may be warranted when discretionary decisions involve complex or unusual facts and an officer needs assistance with the discretionary analysis. Officers may also consult with USCIS counsel through appropriate supervisory channels. There is no appeal from denial of an EAD application. However, an applicant may submit a motion to reopen or reconsider.
USCIS has discretion to establish a specific validity period for employment authorization, though not to exceed certain amounts of time in some circumstances. USCIS generally approves the employment authorization based on a noncitizen’s grant of deferred action with a validity period commensurate with his or her period of deferred action. Officers must not approve an EAD for a period longer than the period of the deferred action.
[^ 1] This chapter does not apply to applications for employment authorization that are properly filed under the Consideration of Deferred Action for Childhood Arrivals eligibility category (that is, (c)(33)).
[^ 5] Certain EAD categories are automatically extended for up to 180 days. For more information, see the Automatic Employment Authorization Document (EAD) Extension webpage. See Section D, Validity Period [10 USCIS-PM B.3(D)].
[^ 6] For general discretion guidance, see Part A, Employment Authorization Policies and Procedures, Chapter 5, Discretion [10 USCIS-PM A.5] and Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 8, Discretionary Analysis [1 USCIS-PM E.8].
[^ 7] For general discretion guidance, see Part A, Employment Authorization Policies and Procedures, Chapter 5, Discretion [10 USCIS-PM A.5] and Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 8, Discretionary Analysis [1 USCIS-PM E.8].
[^ 11] Continued Presence is a temporary immigration status provided to those identified by law enforcement as victims of human trafficking.
[^ 13] Officers may consider serious negative factors as strongly unfavorable factors that weigh heavily against granting employment authorization as a matter of discretion. However, the serious negative factors noted above should not be interpreted as an instruction to automatically deny any application for discretionary employment authorization. The ultimate decision to grant or deny an application for employment authorization for a recipient of deferred action rests on whether, based on the totality of the facts of the individual case, the officer finds that the positive factors outweigh any negative factors that may be present.