COMPLETING FORM I-765, APPLICATION

COMPLETING FORM I-765, APPLICATION FOR EMPLOYMENT AUTHORIZATION updated by Sonal J. Mehta Verma, George S. Newman, and Dustin J. O Quinn * NOTE: Always check the website for the most recent version of this form and current filing fees! Many noncitizens and non-permanent resident foreign nationals who are temporarily in the United States are eligible for employment authorization. 1 In order to obtain work permission, these applicants may file Form I-765, Application for Employment Authorization, with U.S. Citizenship and Immigration Services (USCIS) to obtain an Employment Authorization Document (EAD). The EAD allows the applicant to work for any U.S. employer during the validity period of the EAD card. Typically, an EAD is issued in one-year increments. However, in certain circumstances the EAD will be issued for less than a year and in other circumstances it can be issued for up to two years. 2 While Form I-765 generally is a simple form to complete, there are some issues that immigration attorneys need to consider when completing the form. The more complicated part of applying for work authorization is figuring out when and how to file the form, especially for applicants in removal proceedings who are filing adjustment of status, cancellation of removal, or asylum applications. It is important for attorneys to understand that the EAD is a distinct document issued by USCIS. An EAD is actually Form I-688, Form I-688A, Form I-688B, Form I-766 or any successor document issued by USCIS as evidence of employment authorization. The EAD card looks very similar to a lawful permanent resident card. HOW TO FILL-OUT FORM I-765 The first part of the form asks the applicant to check a box indicating for which type of EAD the applicant is applying. An eligible applicant requesting permission to accept employment for the first time will receive an EAD. A renewal EAD is issued to an eligible applicant upon the expiration of a previous EAD issued under the same category. A replacement EAD is issued to an eligible applicant when the previously issued EAD has been lost, stolen, damaged, or contains incorrect information. Questions 1 8 ask for simple biographic information about the applicant. Be sure to list all nicknames, variations of the applicant s name, and all other names used. As requested on the form, the family name (last name) should be written or typed in all capital letters. Articles do not necessarily reflect the views of the American Immigration Lawyers Association. * Sonal J. Mehta Verma is an attorney with Fragomen, Del Rey, Bernsen & Loewy LLP in Washington, D.C. She is a former AILA Washington D.C. Chapter chair, and has served on several AILA national committees. She provides advice and counsel on all business immigration matters. George S. Newman is a partner at Stinson, Morrison Hecker LLP in St. Louis and is head of its immigration practice group. He has been a member of the AILA Board of Governors for over 25 years. He is a past faculty appointee at Washington University and St. Louis University law schools. Mr. Newman has a B.A. from McGill University (1967) and a J.D. from the College of William & Mary (1970), where he was published in the law review and chaired the Moot Court Board. He is listed in Best Lawyers in America, and has been listed in International Who s Who of Corporate Immigration Lawyers since immigration law listings began. Dustin J. O Quinn is an associate with Gardere Wynne & Sewell, LLP in the firm s Dallas office. He counsels clients of all sizes from all industries on the full range of immigration issues, specializing in employment-based matters. Mr. O Quinn has been active with AILA locally, and with the Texas, Oklahoma, and New Mexico Chapter. 1 See 8 Code of Federal Regulations (CFR) 274a.12.14. 2 8 CFR 274a.12(a), see also FAQs, USCIS to Issue Two-Year Employment Authorization Documents (June 12, 2008), published on AILA InfoNet at Doc. No. 08061362 (posted June 13, 2008). 1

2 AILA S IMMIGRATION FORMS TOOLBOX Question 9 asks for the applicant s Social Security number as well as all Social Security numbers ever used. For the majority of applicants, this question is simple to answer. However, if an applicant has used a fake Social Security number or card, then the attorney will need strategize how to respond to this question. Although to the authors knowledge this has not been an issue, it is possible that USCIS will be able to detect the use of a fake Social Security number or card and this might be problematic for the applicant later on. Question 10 asks for the applicant s alien registration number, which is an eight- or nine-digit number prefaced by the letter A. It is typically called an A-number. Some but not all applicants will have an alien registration number. The A-number can be found on previous EAD cards, USCIS receipt notices, and approval notices. If the applicant does not have an A-number, then list the I-94 number which is found on the white I-94 card that the applicant filled out when he or she entered the United States. Question 11 asks about previous employment authorization applications and decisions. The applicant checks the appropriate box to indicate if he or she was previously issued an EAD card. If the applicant was previously authorized to work in the United States, then the applicant needs to indicate which USCIS service center (Nebraska NSC, California CSC, Texas TSC, or Vermont VSC) approved or denied the prior application, as well as the date of approval or denial. The applicant then needs to indicate whether the application was approved or denied and include copies of the EAD card or denial with the current application. Questions 12, 13, and 14 ask about the applicant s last entry into the United States, the place of last entry, and the manner of last entry. If the applicant does not know the answer to these questions, then enter unknown on the form. If the applicant entered without inspection, state so in Question #14. Question 15 asks for the applicant s current immigration status. List the applicant s type of visa (F-1, H- 1B, etc.) or state that the applicant is an adjustment of status applicant, is the beneficiary of an approved I-360 based on a VAWA (Violence Against Women Act) self-petition or has a pending application for asylum or cancellation of removal. Practice Pointer: Be careful to make sure that the applicant s current immigration status matches the employment eligibility category selected in Question 16. Question 16 is probably the most complicated question on Form I-765. Here the applicant is asked to fillin the appropriate employment authorization category indicated in the Form I-765 instructions. The applicant is provided three bracketed spaces to fill-in with the appropriate code: Eligibility under 8 CFR 274a.12(_)(_)(_) 8 CFR 274.a12 is the section of the Code of Federal Regulations (CFR) that articulates under which visa categories foreign nationals may apply for employment authorization. The code given in the Form I-765 instructions corresponds to the subsection of 8 CFR 274a.12 that authorizes each visa category to apply for work permission. For example, if the applicant qualifies for employment authorization because he or she is an applicant for adjustment of status, then you would enter (c)(9) in the first two brackets. The form would look like this: Eligibility under 8 CFR 274a.12(c)(9)(_). The Form I-765 instructions provide all of the employment authorization category codes. Practice Pointer: Failure to list the appropriate employment authorization code on the form can lead to a request for evidence or even a denial of the application. Thus, it is critical for attorneys to make sure that the appropriate code is entered. Question 17 refers to F-1 students who are applying for 17-month STEM (Students with degrees in Science, Technology, Engineering, and Mathematics) extensions of their Optional Practical Training. Thus, the question asks for the student to list his or her STEM qualifying degree. Practice Pointer: The student s foreign student advisor or designated school official is required to track STEM OPT extensions and therefore should be able to verify if the student s degree is a STEM degree. The list of STEM degrees is also available on AILA InfoNet. 3 3 www.ice.gov/sevis/stemlist.htm.

COMPLETING FORM I-765, APPLICATION FOR EMPLOYMENT AUTHORIZATION 3 In order to qualify for a STEM extension, the student s employer must register in E-Verify. Thus, the question also asks for the employer s name as it is registered in E-Verify and the employer s E-Verify Company Identification Number or a valid E-Verify Client Company Identification Number. Both the applicant and the attorney are required to sign and date the Form I-765. Failure to do so will result in USCIS rejecting the filing. DOCUMENTS THAT MUST BE FILED WITH FORM I-765 The following documentation must be filed with the application: Form G-28 indicating attorney representation; A copy of the front and the back of Form I-94, Arrival-Departure Record, unless the applicant is filing for work authorization as an adjustment of status applicant or if the applicant entered without inspection; A copy of the front and back of the applicant s previous EAD card; or, if no previous EAD is submitted, then a copy of an official valid photo identification document such as a passport biographic page with photograph, driver s license, birth certificate with photo identification and/or fingerprint, a visa issued by a foreign consulate, or a national identification document with photo and/or fingerprint. Practice Pointer: The copy of the photograph must clearly show the facial features of the applicant. A color copy is best. If the applicant has a valid state issued driver s license or identification card, then it is recommended that you submit a clear copy of it with the application. Two identical color 2" x 2" passport-style photographs taken within 30 days of filing; and The filing fee of $380, if required; or Form I-912, Request for Fee Waiver. Please note that certain applicants are not required to pay a filing fee. These include adjustment of status applicants that have paid the combined fee with their adjustment of status applications filed on or after July 30, 2007; initial EAD filings for refugees, asylees, applicants for asylum, individuals granted withholding of removal, T-1 and U-1 visa holders, and VAWA self-petitioners. Please see the instructions to Form I-765 for a complete listing of fee exempt categories. Applicants have the option of filing Form G-1145, E-Notification of Application/Petition Acceptance, for e-mail or text notification that the I-765 application was filed and receipted. WHERE TO FILE THE FORM I-765 The USCIS website will have the most current and up-to-date information about where to file the Form I- 765. Generally speaking, Form I-765 applications for U, T, and VAWA applicants are filed with the Vermont Service Center. The majority of Forms I-765 are filed with the Chicago, Dallas, or Phoenix lockboxes. It is imperative to frequently confirm the location of filing, as the locations can change from time to time. Applicants who are in removal proceedings file their Form I-765 with the Chicago lockbox. In addition to the documents listed above, applicants who are in removal proceedings will need to file a copy of the receipt notice from the Texas Service Center showing that an adjustment of status, asylum or cancellation of removal application has been receipted, and/or proof that the application is pending with the immigration court. 4 Practice Pointer: Many attorneys have reported problems filing EAD applications for applicants in removal proceedings. While USCIS will check all its databases, the burden is on the applicant to prove that the underlying adjustment, asylum, or cancellation of removal application is pending with the immigration court. 5 If the court does not issue hearing notices indicating that a particular application has been filed, then file a motion with the court to submit the application in advance of a hearing and then include the date-stamped copy of the motion with the Form I-765 to prove that the application is pending with the court. 4 See Liaison Minutes from the National Benefits Center/AILA Meeting on November 5, 2010, published on AILA InfoNet at Doc. No. 10122230 (posted Dec. 22, 2010). 5 Id.

4 AILA S IMMIGRATION FORMS TOOLBOX TIMING ISSUES WITH FORM I-765 All Forms I-765, except those for applicants with pending asylum applications, must be adjudicated within 90 days of filing. 6 After the Form I-765 is filed and receipted, the applicant will receive a biometrics appointment letter. The processing of the EAD will not occur until the biometrics have been taken. If 75 days have passed and the EAD application is still pending, then the applicant can make a status inquiry. 7 The issuance of a request for evidence will delay the processing of EAD cards in some cases. Asylum applicants must wait 150 days after filing their asylum applications to be eligible for an EAD. 8 If the asylum case is granted or denied within 150 days, then the applicant may not apply for an EAD. 9 Any delay by the applicant in processing the asylum application will toll the 150 days. 10 After the 150 days have passed, asylum applicants can file for an EAD. USCIS must adjudicate the Forms I-765 within 30 days of filing or the applicant can apply for an interim EAD card. In order to make sure that the EAD card is approved prior to the expiration of the current EAD, attorneys should file renewal applications at least 90 days (but not more than 120 days) in advance of the expiration of the current EAD. 6 8 CFR 274a.13(d). 7 See Memorandum by M. Aytes, Acting Director, titled, Response to Recommendation 35, Recommendations on USCIS Processing Delays for Employment Authorization Documents, published on AILA InfoNet at Doc. No. 09020665 (posted Feb. 6, 2009). 8 8 CFR 208.7(a)(1), 1208.7(a)(1). 9 Id. 10 8 CFR 208.7(a)(12), 1208.7(a)(12).

COMPLETING FORM I-765, APPLICATION FOR EMPLOYMENT AUTHORIZATION 5 Sample Form I-765, Application for Employment Authorization