Employment Authorization Generally
What documentation must be submitted with the EAD application?
• Proof of filing with USCIS or the Executive Office for Immigration Review (EOIR);
– USCIS receipt notice or
– EOIR-stamped copy of filing;
• Copy of previously issued EAD if applicable; government issued photo ID; visa issued by foreign consulate; national ID document with photo and/or fingerprint; or birth certificate plus photo ID;
• Two passport-style photos;
• Filing fee or fee waiver, if applicable (initial application with asylum has no fee):
→Consult the I-765 instructions for special filing instructions and details about required evidence for applicants seeking a (c)(8) EAD.
Asylum Applicants
How long must an asylum applicant with a pending case wait to apply for an initial EAD?
The applicant must wait until the application has been pending for 150 days before applying for the EAD, excluding any periods of applicant-caused delay that cause an asylum “clock” to stop. The applicant may be granted employment authorization after 180 days have elapsed since filing the asylum application (again, excluding any periods of delay caused by the applicant).
What is the filing fee for an EAD based on a pending asylum application?
There is no filing fee for an initial EAD based on pending asylum for any applicant. Renewal EADs have a filing fee. The current filing fee can be found online at https://www.uscis.gov/feecalculator. U.S. Citizenship and Immigration Services (USCIS) fees will increase on April 1, 2024. Those unable to pay the fee for a renewal EAD may apply for a fee waiver on Form I-912.
Replacement EADs based on pending asylum require a filing fee.
A fee waiver request may also be filed on Form I-912.
Are asylum applications still considered “pending” for EAD purposes if they are on direct appeal to a federal circuit court?
Yes. The applicant may continue to renew his or her EAD while the case is on direct appeal with a U.S. Court of Appeals.
May a derivative asylum applicant apply for an EAD?
Yes, derivative asylum applicants are also eligible for EADs. However, the derivative must be both listed and included on the I-589 in order to be considered a derivative. For applicants in removal proceedings, USCIS takes the position that the derivative asylum applicant must be in consolidated proceedings before the same immigration judge in order for the derivative to be “included” on the I-589.
U VISA PETITIONERS
May someone with a pending U visa petition apply for employment authorization?
On June 14, 2021, USCIS updated its Policy Manual to indicate that it will review pending Form I-918 and issue Bona Fide Determination (BFD) EADs and deferred action for four years to U petitioners and derivative family members present inside the United States.3 Previously, U visa petitioners had to wait many years for the issuance of an EAD—until they were granted “deferred action” and placed on a waiting list for final issuance of a U visa.
How does a client qualify for a BFD EAD?
To qualify for a BFD EAD, the U petitioner must have submitted a properly filed and completed Form I-918 and Form I-918 Supplement B, as well as a signed statement in support of their application. The individual is also required to have completed biometrics. For derivatives to qualify for a BFD EAD, there must be evidence of a properly filed Form I-918 Supplement A, credible evidence of the qualifying relationship with the principal, and completed biometrics. USCIS will only issue an EAD to a U visa petitioner or derivative who it determines does not pose a risk to public safety or national security and merits an EAD in the exercise of discretion.
Therefore, a criminal history may disqualify a U petitioner or a derivative from a BFD EAD. If USCIS does not issue the BFD, then the case will be reviewed for the U visa waitlist.
Should the I-765 be submitted together with the U visa petition?
For those filing new Form I-918 petitions, it makes sense to include Form I-765 under category (c)(14) for the principal and any derivatives present in the United States. It also makes sense to include a second EAD application in the (a)(20) category for any derivatives present in the United States. U visa principals present in the United States are automatically issued an EAD upon approval of the I-918 and do not need to file a separate EAD application apart from the EAD application based on deferred action.
BENEFICIARIES OF TPS AND DED
Can a TPS applicant apply for work authorization?
Can someone protected under DED obtain an EAD?
Most executive orders designating a country for Deferred Enforced Departure (DED) authorize work authorization for protected individuals through the duration of the designation. To be work authorized, eligible individuals should file an I-765 in the (a)(11) category according to the instructions published in the Federal Register, which are later posted on the USCIS website. Fee waivers are available. Like in the TPS context, DHS may sometimes provide automatic extension of expiring EADs, which would be announced in the relevant Federal Register Notice.
DACA RECIPIENTS
Applicants for Deferred Action for Childhood Arrivals (DACA) may apply for work authorization, and EADs are issued for the duration of the DACA grant in two-year increments. Initial and renewal DACA applicants are currently required to file an I-765 in category (c)(33) and Form I765WS, together with their Form I-821D application. The DACA filing fees cannot be waived, but some limited fee exemptions are available.7
Note that USCIS is not currently adjudicating Initial DACA applications or associated I-765s.
DEFERRED ACTION (NON-DACA) GRANTEES
The regulation at 8 CFR § 274a.12(c)(14) provides USCIS the discretion to issue an EAD to someone who has been granted deferred action. The (c)(14) EAD is typically issued for the entire deferred action grant period. Applicants must establish an economic necessity for employment and should include Form I-765WS with their I-765, along with proof of the deferred action grant. EADs for someone with deferred action are typically provided at the discretion of USCIS, based on whether the positive factors in an individual case outweigh the negative ones. However, certain deferred action recipients are exempt from the discretionary analysis, including VAWA self-petitioners and their derivatives, U nonimmigrant petitioners and their derivatives, and witnesses or informants for law enforcement with pending S status requests.
SPECIAL IMMIGRANT JUVENILE CLASSIFICATION
Can an individual with an approved SIJ self-petition be granted employment authorization?
In 2022, USCIS announced an update to its Policy Manual regarding a grant of deferred action for many noncitizens with Special Immigrant Juvenile (SIJ) classification.8 USCIS indicates that it will consider the approval of Form I-360 and the ability to adjust status to be a particularly strong positive factor that weighs heavily in favor of granting deferred action. The guidance indicates that deferred action will be granted for a period of four years. Once deferred action is granted, the individual may apply for employment authorization to be granted for the period of the deferred action. As of April 1, 2024, all SIJS EADs are fee exempt.
The practice of providing SIJS classified children an EAD while they are waiting for their priority date to become current may end under Trump.
VAWA SELF-PETITIONERS
Are VAWA self-petitioners eligible for employment authorization?
Yes, a self-petitioner under the Violence Against Women Act (VAWA) is eligible for an EAD under the category (c)(31) once an I-360 self-petition is approved. A self-petitioner can request an EAD on Form I-360 and is not required to file a separate Form I-765. If requesting an EAD under (c)(31), the self-petitioner should mark “yes” on page 14, part 10, item 12 that states: “I am currently residing in the United States and I request an employment authorization document.” There is no category to request an EAD based on a pending I-360; the petition must be approved before the EAD will be issued.
Are VAWA self-petitioners eligible for an EAD based on any other category?
Yes, VAWA self-petitioners with an approved I-360 and a grant of deferred action are also eligible for an EAD based on the category (c)(14). If applying for an EAD based on deferred action, the self-petitioner should mark “no” on page 14, part 10, item 12 of the I-360 and submit an I-765 application. If a self-petitioner is filing an I-485 concurrently with the I-360, or already has an I-485 pending, the applicant is eligible to apply for employment authorization under the category (c)(9).
Applying based on a pending adjustment of status application will generally be quicker than waiting for the I-360 petition to be approved. When applying under the (c)(9) category, selfpetitioners can include the I-765 with the I-485 or submit it later with proof of the pending adjustment application. What is the filing fee for a VAWA-based I-765? As of April 1, 2024, all I-765s associated with VAWA are issued without fee, including renewal and replacement I-765s.
REFUGEES AND ASYLEES
Are refugees eligible for an EAD?
Yes, an asylee is eligible to apply for an EAD under 8 CFR § 274a.12(a)(5). When asylum is granted by the USCIS Asylum Office, the EAD application process is generated by the Asylum Office and the document will be mailed directly to the asylee. If asylum was granted by an immigration judge (IJ), the asylee will need to apply for an EAD through USCIS by filing Form I765. Note that if an asylee wins their case before the IJ with a (c)(8) EAD already pending, USCIS typically automatically converts the EAD into the proper (a)(5) category. What documentation is needed to apply for an EAD as an asylee? When filing for an EAD as an asylee, the I-765 should be submitted under category (a)(5) with evidence of asylee status, such as: a copy of the stamped I-94 Arrival/Departure Record, an order granting asylum by an IJ, or the I-797 approval notice based on a Form I-730, Refugee/Asylee Relative petition, if the derivative is in the United States.
Do refugees and asylees need an EAD to work?
No, since refugees and asylees are authorized to work incident to their status, they do not necessarily need an EAD. Refugees and asylees can present other documents to prove eligibility to work, such as an I-94 card, a social security card, and a government-issued identification document.
PAROLEES
Are parolees eligible for work authorization?
The regulations provide for the issuance of an EAD for individuals granted section 212(d)(5) parole. However, an individual in expedited removal under INA 235(b)(1)(A) or in expedited removal who has a pending credible fear determination under 8 CFR 208.30 is not eligible for an initial EAD under the (c)(11) eligibility category.9 Most noncitizens must be in possession of a valid EAD in order to work lawfully in the United States. There are two important exceptions to this general rule. As of Nov. 21, 2022, certain Ukrainian and Afghan parolees can work for up to 90 days in the United States without having an EAD.10 For these parolees, their unexpired Form I-94 is an acceptable receipt they may present to their employer to show their identity and employment authorization for I-9 employment verification purposes.
This policy allows Ukrainian and Afghan parolees to begin working while waiting for USCIS to approve their Form I-765, Application for Employment Authorization. After 90 days, these parolees must present additional documentation to show their valid employment authorization, including an EAD or an unrestricted social security card and List B document.
Can an individual with a pending application for parole (such as parole in place) apply for work authorization?
No, the regulations do not provide for the issuance of employment authorization while a parole application is pending. The parole must have been granted in order to apply for an EAD.
What documents are needed to submit an application for work authorization for a parolee?
In order to file an application for employment authorization based on a grant of parole, the applicant must submit the following documentation:
• G-28 and Form I-765, Application for Employment Authorization.
- The relevant employment authorization category is (c)(11);
• Copy of Form I-94, passport, or other travel document showing a grant of section 212(d)(5) parole;
• Copy of government-issued ID (such as a passport), copy of visa, copy of national ID, or birth certificate plus photo ID;
• Two passport-style color photographs; and
• Filing Fee or Form I-912, Request for Fee Waiver.
Note that Afghan and Ukrainian parolees only are fee exempt.
How long is employment authorization based on a grant of parole valid?
An EAD is valid for the length of the validity of the parole period. Given that the EAD is matched only to the validity of the parole period, this can make it very difficult for individuals granted a one-year parole to maintain valid employment authorization. Individuals granted multi-year parole pursuant to certain nationality-specific parole programs may find the parole EAD provision more practically useful for their clients. Processes to apply for EADs and wait times for those EADs may vary depending on the special program the parole was granted under.
See resources regarding the various special programs in effect on our “Resources on Parole” page.
ORDERS OF SUPERVISION
Can an individual with an order of supervision with ICE apply for employment authorization?
Yes, individuals with an administratively final order of removal who are under an order of supervision may be able to apply for a work permit under category (c)(18). This category may include individuals granted protection pursuant to the Convention Against Torture. It may also include others who cannot be removed from the United States because the designated country of removal refuses to receive the person or because removal is otherwise impracticable or contrary to the public interest.
To apply for an EAD, the applicant would need to include proof of the order of removal as well as proof of compliance with the order of supervision, which is generally done through submission of a copy of the order of supervision documenting compliance. The agency will consider the following factors in determining whether to grant a discretionary EAD under category (c)(18):
• Existence of a dependent spouse and/or children in the United States who rely on the applicant for support;
• Existence of economic necessity to be employed; and • Anticipated length of time before the applicant can be removed from the United States.
Can someone who checks in regularly with ICE but does not have an order of removal apply for an EAD under category (c)(18)? No, the regulations at (c)(18) require an administratively final order of removal to obtain an EAD on this basis.
A noncitizen’s case was denied by the IJ and is on direct appeal to the BIA. The noncitizen checks in regularly with ICE. Can the noncitizen apply for an EAD under category (c)(18) based on being under an order of supervision? No, if the case is still on direct appeal to the BIA, the removal order is not administratively final, so the applicant would not qualify for an EAD under (c)(18).
RENEWALS, AUTOMATIC EXTENSIONS, AND EMPLOYER ISSUES
When can an EAD renewal application be submitted?
USCIS advises that renewal applications be submitted no earlier than 180 days before the current EAD will expire.
What categories of EAD holders are eligible for automatic extension of their employment authorization while a renewal application is pending?
The following renewal applicants are eligible for an automatic extension:
• Asylees and refugees: (a)(3) and (a)(5)
• Asylum applicants: (c)(8) • TPS holders: (a)(12)
• TPS initial applicants with prima facie case eligible for EAD as “temporary treatment benefit”: (c)(19)
• Adjustment of status applicants: (c)(9)
• Registry applicants: (c)(16)
• Legalization, LIFE Legalization and SAW applicants: (c)(20), (22), and (24) • VAWA self-petitioners: (c)(31)
• Withholding of deportation or removal granted: (a)(10)
• Applicants for suspension of deportation and cancellation of removal, including NACARA cancellation: (c)(10)
• Citizen of Micronesia, Marshall Islands, or Palau: (a)(8) • N-8 and N-9 nonimmigrants: (a)(7)
• Spouse of principal E nonimmigrant: (a)(17) • Spouse of principal L nonimmigrant: (a)(18)
• Spouse of certain H-1B nonimmigrant: (c)(31) A timely renewal application submitted by an applicant in one of the categories listed above will automatically extend the existing EAD if the renewal is for an EAD in the same category.
For TPS beneficiaries, the current EAD and the renewal request may be in either the (a)(12) or (c)(19) categories, but they do not have to match.
How do I prove that my EAD was renewed?
The USCIS Handbook for Employers (M-274) advises employers about when an EAD qualifies for automatic extension. The handbook explains that an employee’s expired EAD, in combination with Form I-797C showing that the EAD renewal was timely filed and in the same qualifying eligibility category as that of the expired EAD, is an acceptable proof for employment eligibility verification. This combination of documents is considered an unexpired EAD for I-9 purposes under List A.
'What recourse does a noncitizen have if an employer does not want to accept his or her receipt notice as proof of continued employment authorization?
The Department of Justice (DOJ) has a section called Immigrant and Employee Rights (IER). IER has a hotline for employers and another for workers and can help solve issues regarding the following: Form I-9, Employment Eligibility Verification; E-Verify/SAVE; auto-extending EADs; background checks; and social security number requirements.
Employers or employees can call anonymously, and DOJ will reach out to employers over email or phone. The hotlines are open Monday through Friday from 9 a.m. to 5 p.m. ET, are accessible in English and Spanish, and have a language line for interpretation to other languages.
Employer: 1-800-255-8155
Worker: 1-800-255-7688
What can be done if an employer is asking for proof of permanent residency instead of an EAD?
When verifying a worker’s employment authorization, employers are not allowed to demand more or different documents than necessary or to request specific documentation. Violations of this can be reported to IER. FEES
What is the current fee for Form I-765?
Applicants should always check the USCIS website for the most up-to-date information on filing fees. USCIS has a new proposed fee schedule due to go into effect on April 1, 2024, that makes several changes to filing fees. The USCIS fee calculator is a useful tool for accurately determining the correct filing fee depending on the category. Certain humanitarian categories are fee exempt, and fee waivers are available for many other categories based on inability to pay.
ONLINE FILING
• (a)(12) – Temporary Protected Status granted;
• (c)(3)(A) – F-1 student, pre-completion Optional Practical Training (OPT);
• (c)(3)(B) – F-1 student, post-completion OPT;
• (c)(3)(C) – F-1 student, 24-month extension of OPT for science, technology, engineering and mathematics (STEM) students;
• (c)(8) – Asylum application pending for a minimum of 150 days;
• (c)(11) – Paroled for urgent humanitarian or significant public benefit purposes;
• (c)(19) – Certain pending TPS applicants whom USCIS has determined are prima facie eligible for TPS.
• (c)(33) – Consideration of Deferred Action for Childhood Arrivals (DACA).
There is a $50 discount for filing online. Note that fee waivers cannot be processed online, so any application for an I-765 that is accompanied by a formal fee waiver request on Form I-912 must be filed through the mail. I-765 applications that are fee exempt can be filed online.
MISCELLANEOUS
Can an applicant request a Social Security number with the I-765 application?
Are minors eligible for an EAD even if they don’t plan to be employed?
Yes, there are no age restrictions on applying for an EAD if otherwise eligible based on the underlying category.
Minors often obtain an EAD for identification purposes. If an applicant previously received an EAD in one category and is now applying based on a different category, is this considered to be an “initial” or “renewal” EAD application? The I-765 instructions define “initial EAD” as an EAD issued to an eligible applicant for the first time under a specific eligibility category. Therefore, the applicant would check “initial permission” to accept employment, even if previously issued an EAD in a different category.
What is the validity period of an EAD?
This can vary. Some EADs are tied to an underlying status, such as parole or nonimmigrant U or T status. A listing of the validity periods of all EADs can be found in the USCIS Policy Manual.
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