USCIS issuing RFE’s on I-765 EAD Applications questioning why USCIS should exercise discretion in approving the application

December 31, 2020
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Many legal practitioners have reported that they are receiving Request for Evidence (RFE's) for the I-765, Application for Employment Authorization filed requesting the applicant to provide favorable factors warranting a grant in the exercise of discretion. The new RFE's have made the I-765 Applications more complex. USCIS recently changes its policy and made the approval of EAD's as a matter of discretion.  The new change was updated in the policy manual. While employment authorization for certain aliens is automatic or non-discretionary by virtue of their immigration status, other aliens must affirmatively apply for employment authorization and USCIS may grant employment authorization as a matter of discretion. The regulations outlined at 8 CFR 274a.12(c) specify categories of aliens who must apply for employment authorization and may be granted employment authorization as a matter of discretion. For those Category C applicants seeking both employment authorization and an employment authorization document (EAD), the applicant must generally file an Application for Employment Authorization (Form I-765) with USCIS with the appropriate fee (unless waived), and in accordance with the form instructions. In addition to verifying the applicant’s identity and that the applicant meets all other eligibility criteria, USCIS must determine if a favorable exercise of discretion is warranted in granting employment authorization to a Category C applicant. USCIS determines whether to grant discretionary employment authorization on a case-by-case basis by taking into account all factors and considering the totality of the circumstances. The ultimate decision to grant discretionary employment authorization for a Category C applicant depends on whether, based on the facts and circumstances of the case, USCIS finds that the positive factors outweigh any negative factors that may be present, and that a favorable exercise of discretion is warranted. The denial of employment authorization is not subject to administrative appeal.    

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