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You Can No Longer Count On Automatic Employment Authorization

Posted by Richard J. Tasoff | Jul 15, 2020 | 0 Comments

The Citizenship and Immigration Service issued a Policy Alert on July 15, 2020, consolidating exiting policy on the application of discretion by immigration officer when adjudicating applications.  Most immigration applications include an element of discretion that needs to be made by the immigration service officer.  It is the applicants burden to show that a favorable exercise of discretion is warranted and that the application should be granted.  

Although this is not a new policy the fact that it has been consolidated and reiterated could mean that the government is viewing the subject of discretion as another way of denying benefits to foreigners.   For example, when the foreign spouse of a U.S. citizen files an application to adjust his or her status to permanent resident an application for employment authorization is also filed.   Approval of the employment authorization was all but automatic for the past 30 years.  If the Citizenship and Immigration Service now performs a discretion analysis with each application it may be that persons who positive factors do not outweigh the negative factors in their life.  

Here is a partial list from the policy manual:

  • Whether the requester is eligible for the benefit sought;

  • The applicant or beneficiary's ties to family members in the United States and the closeness of the underlying relationships;

  • Hardship due to an adverse decision;

  • The applicant or beneficiary's value and service to the community;

  • Length of the applicant or beneficiary's lawful residence in the United States and status held during that residence, including the age at which the alien began residing in the United States;

  • Service in the U.S. armed forces;

  • History of employment;

  • Property or business ties in the United States;

  • History of taxes paid;

  • Nature and underlying circumstances of any inadmissibility grounds at issue, the seriousness of the violations, and whether the applicant or beneficiary is eligible for a waiver of inadmissibility or other form of relief;

  • Likelihood that lawful permanent resident (LPR) status will ensue soon;

  • Evidence regarding respect for law and order, good character, and intent to hold family responsibilities (for example, affidavits from family, friends, and responsible community representatives);

  • Criminal history (in the United States and abroad) and whether the applicant or beneficiary has rehabilitated and reformed;

  • Community service beyond any imposed by the courts;

  • Whether the alien is under an unexecuted administratively final removal, deportation, or exclusion order;

  • Public safety or national security concerns;

  • Moral depravity or criminal tendencies reflected by a single serious crime or an ongoing or continuing criminal record, with attention to the nature, scope, seriousness, and recent occurrence of criminal activity.

  • Findings of juvenile delinquency;

  • Compliance with immigration laws;

  • Previous instances of fraud or false testimony in dealings with USCIS or any government agency;

  • Marriage to a U.S. citizen or LPR for the primary purpose of circumventing immigration laws;

  • Other indicators of an applicant or beneficiary's character.

We will need to see what happens in the future.

About the Author

Richard J. Tasoff

Senior Partner Richard J. Tasoff is a senior partner in Tasoff & Tasoff, one of the oldest "AV" rated (highest Martindale-Hubbell rating) law firms in Los Angeles specializing in immigration law. Richard, a Certified Specialist in Immigration & Nationality Law (State Bar of California Board of L...


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