Chapter 3 - Noncitizens Granted Deferred Action

A. Employment Authorization for Noncitizens Granted Deferred Action

Noncitizens who have been granted deferred action[1] may apply for employment authorization in the United States without restrictions as to the location or type of employment.[2] 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.[3]

B. Eligibility for Employment Authorization

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.[4] Upon approval of the employment authorization application, and while the Employment Authorization Document (EAD) is valid,[5] 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.[6]

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.[7] A discretionary determination on employment authorization for a noncitizen in a period of deferred action cannot be appealed.[8]

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.[9] 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.[10]

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)[11] 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;[12]
  • 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)).

C. Adjudication

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.

Discretionary Factors

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.

Employment Authorization for Noncitizens Granted Deferred Action: Nonexclusive List of Factors Relevant to Discretionary Determination

Favorable Factors

Unfavorable Factors

  • The applicant has demonstrated economic necessity

  • The applicant is the primary source of financial support for their U.S. citizen or lawful permanent resident (LPR) spouse, parent, or child

  • The applicant or their immediate relative has a medical condition that would cause significant financial hardship should the applicant not be granted employment authorization

  • The applicant has an absence of any significant criminal history

  • The applicant has a demonstrated need to stay in the United States for a significant period of time in order to assist with a law enforcement investigation or prosecution

  • If the applicant is the spouse, parent, or child of a U.S. citizen; or the applicant is a member of the U.S. armed forces or in the Selected Reserve of the Ready Reserve and is currently serving on active duty, or, if discharged, served honorably

  • The applicant has any criminal history, with any of the following constituting a serious negative factor:[13]

    • The applicant has been convicted of an aggravated felony[14]

    • The applicant has been convicted of any felony[15]

    • The applicant has been charged with or convicted of any offense involving domestic violence or assault

    • The applicant has been charged with or convicted of any criminal offense involving child abuse, neglect, or sexual assault

    • The applicant has been charged with, arrested, or convicted of any criminal offense involving illegal drugs or controlled substances

    • The applicant has been charged with or convicted of driving under the influence or driving while intoxicated

  • The nature, frequency, and severity of any prior violations of the immigration laws, including illegal entries and unauthorized employment

  • The length of time the applicant was or has been in the United States without lawful presence

  • The applicant has knowingly aided or abetted any person in violating U.S. immigration law

  • The applicant has committed fraud in order to obtain an immigration benefit

  • The applicant has lied or made a material misrepresentation to any immigration or consular officer or employee while such officer or employee is performing his or her official duties under the law

  • The applicant is a national security or public safety risk as evidenced by arrests and criminal convictions

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

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.[16] However, an applicant may submit a motion to reopen or reconsider.[17]

D. Validity Period

USCIS has discretion to establish a specific validity period for employment authorization, though not to exceed certain amounts of time in some circumstances.[18] USCIS generally approves the employment authorization based on a noncitizen’s grant of deferred action[19] 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.

Footnotes


[^ 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)).

[^ 2] See 8 CFR 274a.12(c)(14).

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

[^ 4] Under 8 CFR 274a.12(c)(14). See 8 CFR 274a.13(a)(1).

[^ 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].

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

[^ 9] See 8 U.S.C. 1375(c)(1)(A), (c)(2).

[^ 10] See 8 U.S.C. 1375(c)(1)(A), (c)(2).

[^ 11] Continued Presence is a temporary immigration status provided to those identified by law enforcement as victims of human trafficking.

[^ 12] See INA 101(a)(51) and INA 204(a).

[^ 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.

[^ 14] See INA 101(a)(43).

[^ 15] As defined in 18 U.S.C. 3156(a)(3).

[^ 16] See 8 CFR 274a.13(c).

[^ 17] See Notice of Appeal or Motion (Form I-290B). See 8 CFR 103.5.

[^ 18] See 8 CFR 274a.12.

[^ 19] See 8 CFR 274a.12(c)(14).

Current as of July 30, 2021