Chapter 4 - Adjustment Applicants Under INA 245

A. Employment Authorization for Adjustment of Status Applicants

Applicants seeking adjustment of status under INA 245 may apply for employment authorization in the United States without restrictions as to the location or type of employment.[1] Such applicants 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.[2]

B. Eligibility for Employment Authorization

Employment authorization for INA 245 adjustment applicants is only provided at USCIS’ discretion. Such applicants, unless authorized to work on a separate basis, must apply for (and be granted) employment authorization before they may work in the United States.[3] Upon approval of the employment authorization application, and while the Employment Authorization Document (EAD) is valid,[4] the applicant’s type and location of employment is unrestricted.

The approval or denial of an EAD affects whether the applicant 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 EAD applications filed by applicants with pending INA 245 adjustment applications.[5]

In addition to verifying the applicant’s identity and that he or she has a pending adjustment application under INA 245, USCIS determines whether to grant discretionary 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.[6] There is no appeal from denial of an EAD application.[7] However, an applicant may submit a motion to reopen or reconsider.[8]

Certain Applicants Exempt from Discretionary Analysis

While officers are generally expected to exercise discretion in the adjudication of Form I-765 associated with applications for INA 245 adjustment of status, some classifications are exempt from such a discretionary analysis. Specifically, USCIS considers the following populations exempt from discretionary analysis:

  • Applicants in valid T nonimmigrant status (including principals and their derivative family members) with pending adjustment applications;
  • Violence Against Women Act (VAWA) self-petitioners and their derivative beneficiaries with pending adjustment applications;[9]
  • Applicants in valid U nonimmigrant status (including principals and their qualifying derivatives) with pending adjustment applications; and
  • Applicants (and qualified family members) who assisted or are assisting a law enforcement agency as a witness or informant (S nonimmigrants).

C. Adjudication

In deciding whether an applicant for adjustment of status under INA 245 should be granted employment authorization, USCIS makes a case-by-case discretionary determination considering all relevant information. The ultimate decision to grant employment authorization for an INA 245 adjustment applicant under 8 CFR 274a.12(c)(9) 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 determining whether to favorably exercise discretion and grant employment authorization for INA 245 adjustment applicants under 8 CFR 274a.12(c)(9).[10]

D. Validity Period

USCIS has discretion to establish a specific validity period for employment authorization, though not to exceed a certain period of time in some circumstances.[11] When determining the validity period for employment authorization for applicants based on a pending INA 245 adjustment application, USCIS may take into account processing times.

USCIS had previously limited the validity period for employment authorization based on a pending adjustment application to 1 year. However, as the median processing time for certain adjustment applications is close to, or in some cases, exceeds 1 year, limiting the validity period for employment authorization to 1 year has resulted in the expiration of EADs and the need for applicants to renew them while adjustment applications are still pending.[12]

In the interest of reducing the burden on both the agency and the public, USCIS approves employment authorization based on a pending INA 245 adjustment application for a validity period of 2 years. USCIS provides in the approval notice and EAD the specific time period for which an applicant’s EAD is valid.[13]

USCIS approves a replacement EAD for the same validity dates and category as the original EAD.[14]

Footnotes


[^ 1] See 8 CFR 274a.12(c)(9). Not all applicants apply for adjustment of status based on INA 245. Certain other federal laws (for example, the Liberian Refugee Immigrant Fairness (LRIF) law described in Section 7611(b) of the National Defense Authorization Act 2020, Pub. L. 116-92 (PDF), 113 Stat. 1198, 2309 (December 20, 2019), as amended by Section 901 of Division O, Title IX of the Consolidated Appropriations Act of 2021, Pub. L. 116-260 (PDF) (December 27, 2020) provide other bases for applicants to adjust status to lawful permanent residence. For information on employment authorization for applicants applying to adjust based on a law other than INA 245, see the program-specific part of the Policy Manual.

[^ 2] See INA 274A(h)(3). See 8 CFR 274a.13(a)(1).

[^ 3] Under 8 CFR 274a.12(c)(9). See 8 CFR 274a.13(a)(1).

[^ 4] 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.4(D)].

[^ 5] 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].

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

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

[^ 9] See INA 101(a)(51) and INA 204(a).

[^ 10] For a non-exhaustive list of factors, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 8, Discretionary Analysis, Section C, Adjudicating Discretionary Benefits, Subsection 2, Identifying Discretionary Factors [1 USCIS-PM E.8(C)(2)].

[^ 11] See 8 CFR 274a.12.

[^ 12] See the USCIS Historical National Median Processing Time webpage for national median processing times. The data used to determine that the median processing time for certain adjustment applications was close to or greater than 1 year was from Fiscal Year 2017 to 2021 (up to March 31, 2021).

[^ 13] For example, 6/23/21 to 6/22/23.

[^ 14] An applicant files for a replacement EAD if his or her card has been lost, stolen, mutilated, or when the previously issued card contains erroneous information, such as a misspelled name.

Current as of July 26, 2021