Source - ImmigrationVoice.org There's 4 categories considered for issuing EAD with approved I-140.

1. EMPLOYMENT AUTHORIZATION DOCUMENTS (EAD) FOll CERTAlN BENEFICIARIES OF APPROVED 1-
140 PETITIONS
This paper explores open market Employment Authorization Document (fAD) regulatory changes
under consideration to better assist and provide stability to the beneficiaries of approved employment-
based immigrant visa petitions. The current draft regulation limits EADeligibility to primary
beneficiaries and their derivative family members with an 1-140 petition that has been approved for at
least one year.1
The current draft regulation contemplates EADeligibility for individuals who are in
lawful nonimmigrant status at the time of filing the EADapplication.
This paper addresses the question raised at the Regulations Retreat as to who may benefit from this,
regulatory change given different options. Each proposed option discusses the population of
individuals covered and excluded, and the pros and cons of each proposed option. The options are
enumerated from the most inclusive to the least inclusive. The Office of PoUcyand Strategy
recommends Option 2, in which EADsmay only be granted to individuals who are lawfully present in
the United States.
1. fAD may b.egranted to indMduals who are physkalfy present In the United States /
Population Covered:
• All individuals who are in the United States, including those lawfully present; those who have
entered without inspection (these individuals are known clS /lEWis"); and/or nonimmigrant
overstays.
Population Excluded:
• Individuals with an approved 1-140 petition and their family members who are overseas.
Pros:
• This could cover a greater number of individuals, many of whom have already had the U.S.
labor market tested demonstrating that their future employment won't adversely affect us.
workers.
• Allows these individuals to remain in the United States until their immigrant visa number is
available.
1The regulations as currently drafted anticipate that EAD eligibility will cease once the beneficiary's priority date has been
current for one year. This limitation will ensure that a beneficiary may no! continually remain in the United States unless he
or she maintains a current intent to adjust status to permanent residence.
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2. • May authorize the presence of certain individuals who are not here lawfully and address the
needs of some of the intended deferred action population (note that previous unlawful
presence would still count against the foreign national for admissibility purposes),"
• This would be consistent with the current practice and form instructions of the Form 1-765
Application for Employment Authorization Document which require individuals to be physically
present in the United States.
• May potentially enable undocumented workers to lawfully work in jobs that may better match
their skills and potential.
• Contributes to our economy and increase our federal, state, and local tax base as these
individuals will be lawfully employed and be required to pay taxes.
• Byincluding all individuals who are physically present in the United States, we are including a
population that is in the most need of relief. While individuals who are lawfully present or are
in nonimmigrant status generally have other means of emolovment.authoriaarlon, those who
are out of status, overstays Of EWls have no means to lawfully work and remain in the United
States even though they have an approved 1-140 petition demonstrating a need for their
employment in the United States.
• The Form 1-765 adjudication would be more straightforward under this all-inclusive proposal
because it would simply require an approved 1-140.
Cons:
• Individuals who are EWI or overstays may benefit from this EAD, but in many cases may face
difficulties in pursuing permanent residence due to ineligibility or being subject to unlawful
presence inadmissibility for whiFh a waiver is required. Therefore, in a sense this option might
not support the macro-level policy goal of retaining these individuals until they are ready and
able to become immigrants.
• It may be viewed as faciHtating or supporting illegal immigration. May actually encourage
individuals to overstay or EWI, Which would adversely affect the integrity of our immigration
system, and it would seem to reward those who have violated immigration laws?
• It may be viewed as saturating the US. labor market with foreign workers taking job
opportunities away from U.S.workers, to a greater extent than the options listed below.
• As this group includes individuals who are not lawfully present, it may be viewed by Congress as
an attempt to circumvent other programs subject to wage provisions and numerical caps, such '
as H-IBs, where work authorization would no longer be available based on those caps, or as a
way to circumvent established categories where the individual may not otherwise qualify.
/
2 This option would provide work authorization to eligible individuals but such individuals may be ineligibte to adjust status
based on an offer of permanent employment due to inadmissibility issues, and because such individuals would not have a
lawful nonimmigrant status in the Il.S.
3 Note, however, that it is reasonable to presume that any overstay or EWI would prefer a lawful status over an EAD.
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3. it Some stakeholders would oppose this because it would broaden the class of eliglbleindividuals,
and would not require current nonimmigrant status.
it It may be viewed by Congress as an attempt to circumvent other programs subject to numerical
caps and wage provisions, such as H·1Bs, where work authorization would no longer be
available based on those caps; or as a way to circumvent established categories where the
individual may not otherwise qualify.
2. EAD may only be granted to individuals who are lawfully present in the United States
Population Covered:
• Individuals who are lawful'ly present in the United States, induding ncnirnrnigrants whose
lawful nonimmigrant status may have expirecib.l.:fthave timely filed an extension of stay or
change of status within an authorized period 9f admission as contemplated by 8 CFR parts
214.1 and 248.1.
• Parolees.
• Abroad range of individuals who either entered'iHegally or whose stay expired, but who are
nevertheless allowed to remain in the United States'·andhot accrue unlawful presence. These
classes of individuals may already be eligible for EADsunder a myriad of categories related to
their authorized presence, such as TPS, DED, DACA, adjustment of status applicants, and asylum
applicants, among
Population Excluded:
• Individuals with an approved 1-140 petition and their family members who are overseas;
• EWls; and
• Nonimmlgrant overstays.
Pros:
• It would support individuals who are.on the path to permanent residence and lawfully present
in the United States but who might nOt be employment-authorized nonimmlgrants, by allowing
them to work and contribute to our economy and increase our federal .•state, and local tax
base.
• It could boost our economy, thereby potentially helping the labor workforce by creating more
jobs, improving wages of all workers, and reducing the deficit,
• Maintains the integrity of the immigration system by only according a benefit to those who are
lawfully present in the United States.
• The proposed relief can be used by individuals who have an approved 1·140 and are within a
grace period contemplated In the draft AC21 regulations. Such individuals may apply for the 1-
140 EADand remain in the United States in order to secure other employment, while they wait
for their immigrant visa number to become available.
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4. Cons:
• Form 1-765 adjudications would be very complicated and would substantially increase
adjudication time, including RFEissuance. This is because officers would have to become well-
versed in the complex rules for determining when someone is or is not lawfully present in the
United States. This is not a determination that can be made by a simple system look-up, but
rather, this determination requires an in-depth analysis of the individuals' overall immigration
history, to include all authorized periods of stay, all periods of work authorization, and all gaps.
• Some stakeholders would oppose this because it would broaden the class of eligible individuals,
and would not require current nonimmigrant status.
• Itmay be viewed as saturating the U.S. labor market with foreign workers taking job
opportunities away from U.s. workers, to a greater extent than the options listed below.
• It may be viewed by Congress as an attempt to circumvent other programs subject to numerical
caps and wage provisions, such as 14-1Bs, where work authorization would no longer be
available based on those caps, or as a way to circumvent established categories where the
individual may not otherwise qualify.
• Would prevent undocumented workers from lawfully working in jobs that may better match
their skills and potential, or contribute to our economy and increase our federal, state, and
local tax base.
3, EAOmay only be granted to Individuals who are in lawful nonimmigrant status at the time of
filing the EAO.4
Population Covered:
• Individuals inspected and admitted in a lawful nonimmigrant status whose status has not
expired (including all departure preparation periods, e.g., "grace periods" provided by
regulation) .
Population Exc.luded;
• Parolees, asthey are not admitted in a nonimmigrant status;
','"
• Nonlmrrugrarrts who have overstayed their authorized period of adrnlssion.:
• Nonirnrnigrants with pendi'1g applications for change of status or extension of stay whose
authorized stay hasexpired'while such application is pending;
• Nonimmigrants who fail to maintain their lawful nonimmigrant status (includes working
without authorization, students and exchange visitors whose status has been terminated by
SEVP,among others);
4 Another potential option may be granting EADsto individuals Who are lawfully present in the United States, but who have
been out of status for less than 180 days. While the adjudication may be complicated, it may address the population
designed by this initiative.
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5. • Individuals with pending asylum applications;
• Individuals in removal proceedings;
• EWls; and
• Individuals with an approved 1-140 petition and their family members who are overseas.
Pros:
• Could be viewed as maintaining the integrity of the legal,mm.1gration system by further
restricting EADeligibility.
• Complements the recently finalized H-4 EAD rule, aSlJlell~s.numerous other employment
authorization provisions, because it requires the a~JI)licant ti;)maintaln lawful nonimmigrant
status.
• Aligns with the macro-level policy goal of attracting and retaining globa! talent to the United
States, as it provides work authorization in rnanv cases to individuals who have held a highly-
skilled nonimmigrant status. It also opens the possibility of work authorization to spouses and
family members of foreign nationals in nonimmigrant status who are on the path to lawful
permanent residence.
• Gives flexibility to foreign nationals to pursue employment options other than the current 1-140
employer.
• Eliminates the n('I''''nl·til~'ltj$s;lJaI1Ce of multiple EADs to individuals already employment
authorized, the vulnerability of misuse.
• By limiting this to individuals in a valid nonimmigrant status at the time of
filing, this would fraud and reduce incentives for illegal entry and status
violations,
• It would support individu'al~:lJIho are 01'1 path to permanent residence but who are running
out oftime in nonimmigrant status, them to work and contribute to our economy
and increase our federal, state,a;flq local tax base.
• The proposed relief can be used bIlndividua!s who have an approved 1-140 and are within a
grace period contemplated in the draft AC21 regulations. Such individuals may apply for the 1-
140 EAD and remain in the United States in order to secure other employment, while they wait
for their immigrantvisa number to become available.
Cons;
• Some stakeholders would oppose this because it would broaden the class of eligible individuals,
which would Include individuals who are currently in nonimmigrant status but who are not
employment authorized, such as F and J ncnimmlgrants.
• It may be viewed as saturating the U,S. labor market with foreign workers taking job
opportunities away from U.S. workers, to a greater extent than the option listed below.
• It may be viewed by Congress as an attempt to circumvent other programs subject to wage
provisions and numerical caps, such as 1-I-1Bs,where work authorization would no longer be
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6. available based on those caps. Or as a way to circumvent established categories where the
individual may not otherwise qualify.
• Individuals who are on the path to permanent residence, but who have run out of
nonimmigrant options and their lawful status has lapsed, would be unable to work and to
contribute to our economy.
• Would prevent undocumented workers from lawfully working in jobs that may better match
their skills and potential, or contribute to our economy and increase our federal, state, and
local tax base.
• Would not cover individuals who do not have a valid nonimmigrant status; however, this would
be mitigated by the fact that some affected individuals might have other protections and/or
work authorization (e.g, TPS, DED, DACA,).This population may already have the work
permission they need and not avall themse!ve~9fthis separate option.
• Individuals who are on the path to permanentresidence, but who have run out of
nonimmigrant options because their lawful status has lapsed, would be able to work and to
contribute to our economy.
4. EAD may only be granted to individuals who are in ~ertain lawful nonimmigrant status, t.e.
excluding H·1i3sor l-lAs.
Population Included:
• Individuals inspected and admitted in a lawful nonimmigrant status whose status has not
expired (including all departure preparation periods, e.g., "grace periods" provided by
regulation), except for individuals who are in H-1B or L-1A status."
Population Excluded:
• Individuals in H-1B or L-1A status;
• Parolees, as they are not admitt¢d in a nonimmigrant status;
• Nontrrnnigrants who haveoverstav~~ their authorized period of admission;
• Ncntrnmigrants with pending applications for change of status or extension of stay whose
authorized stay has expired while such application is pending;
• Ncnimmlgrants who fail to maintain their lawful nonimmigrant status (includes working
without authorization, students and exchange visitors whose status has been terminated by
SEVP, among others);
• Individuals with pending asylum applications;
S In enacting AC21 as amended by DOJ 21, Congress specifically provided a means by which 1i-18 nonirnrnigrants may
remain and work in the United States even if an immigrant visa is unavailable. Under the new H-4 fAD rule, certain H-4
dependents of prlnclpal H-1Bs may now work in the United States outside of the adjustment of status context. Given these
existing legal provisions, it is unclear how many H-1B and H-4 nonlmmigrants this proposed EAD provision would benefit.
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7. • Individuals admitted as refugees (but note that they are lawfully admitted and authorized to
work);
• Individuals afforded temporary protection and work authorization, including those with valid
grants of TPS and DED, individuals granted deferred action, and DACA recipients, among others;
• Individuals in removal proceedings;
• EWls; and
• Individuals with an approved 1-140 petition and their family members who are overseas.
Pros:
• It may lessen the litigation risk for this EAD rule. First, Congress has already spoken on this
point via statutory authority in AC21 and provided a means by which H-1Bs may remain. To
expand this statutory benefit beyond the plain language of the statute may make the rule more
vulnerable to a challenge in court. Second, as AC2! was meant to alleviate INS backlogs and
not the unavailability of immigrant visas, distancing the rule from AC21 could further help
insulate it from litigation.
• By not excluding 1i-1Bs, the rule may reduce the number of H-IB petitions filed. This could
provide a means to circumvent H-'tB wage protections. A reduction in H filings would reduce H
fees used for training U.S. workers, combating fraud, arid border protection. Of the amounts
deposited into the H-1B Nonimmigrant Petitioner Accountt55% ofthe fee revenue is provided
to the Department of tabor, 40% is provided to the National Science Foundation and 5%
percent is retained by USCIS.
• Based on sections 110 and 111 of AC21 and theaccompanvlng legislative history, any
EAD/advance parole program that could result in reduced fees to the. H-1B Nonimmigrant
Petitioner Account would run directly contrary to one of the main purposes of AC21, which was
to boost funding to help educate Americans such that continued reliance on the H-IB program
to address this shortage of high skilled workers would no longer be needed. See section 286(s)
of the Act, 8 U.S.c. § 13S6(s).
• Employers utilizing the H-lB program may be less likely to oppose the general EAD rule.
• The proposed relief can be used by individuals who have an approved 1-140 and are within a
grace periodcontemplatedjn.the draft AC21 regulations. Such individuals may apply for the 1-
140 EAD and remain in the United States in order to secure other employment, while they wait
for their immigrant visa number to become available.
Cons:
• Includes all the cons enumerated for Option 3.
• It would remain difficult, but not impossible, for H~la workers to change employers until an
adjustment of status application has been filed and remained pending for 180 days.
• Specifically excluding H-1Bs would not comport with the policy goals of the WH, particularly as
AC21 addresses the situation of those individuals who are in H-1B status and those who have an
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8. 1~485application that has been pending for more than 180 days, but not those individuals who
fall in between.
• Results in disparate treatment of high-skilled workers and therefore carries litigation risk.
• H-1Bs (other than those who benefit from A(21) and L-1Asare subject to a maximum period of
admission and therefore, through no fault of their own, may fall out of status while they are
awaiting a visa number to become immediately available. Other nonimmigrant categories, such
as ESt Fs,as, certain Psdo not have a maximum limitation of admission that would necessitate
a measure to address the gap that may be created by needing to wait for the visa number to
become immediately available.
Final Note:
The Administrative Appeals Office has raised a concern. that issuing an tAD off of an approved 1-140
would grant a benefit directly from the !-140 alone. This has never been done and it has always been
contingent on having an 1-485 filed. To grant a benefit directly from the 1-140 may increase beneficiary
standing claims in cases of revocation. In this instance, the beneficiary would have a tangible benefit
to lose. This raises a question: would the beneficiaries be able to successfully contest standing even in
caseswhere the 1-14Q is denied, as they would not later receive an expected benefit?
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