sphyrapicus

See: http://a257.g.akamaitech.net/7/257/2...4/04-16938.htm

[Federal Register: July 30, 2004 (Volume 69, Number 146)]
[Rules and Regulations]
[Page 45555-45557]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30jy04-1]


[[Page 45555]]

DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 274a
[BCIS No. 2152-01]
RIN 1615-AA63

Employment Authorization Documents

AGENCY: Bureau of Citizenship and Immigration Services, DHS.

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: This interim rule amends Bureau of Citizenship and Immigration
Services (BCIS) regulations governing issuance of Employment
Authorization Documents (EADs). Through this rule, BCIS will now
establish EAD validity periods based on certain criteria, including:
The applicant's immigration status; general processing time for the
underlying application or petition; required background checks and
response times for background checks by other agencies, as necessary;
other security considerations and factors as deemed appropriate by
BCIS. BCIS will have discretion to modify EAD validity periods both for
initial, renewal, and replacement cards. BCIS also will be able to
establish EAD validity periods for classes of aliens and for
individuals within those classes whose cases warrant a lesser validity
period. The rule also removes current regulatory language limiting EAD
validity periods to one-year increments for certain classes of aliens
who are required to apply for employment authorization. Finally, the
rule amends BCIS regulations to reflect that BCIS will issue EADs to
aliens granted asylum by the Department of Justice, Executive Office of
Immigration Review (EOIR), with validity periods of up to five years,
unless otherwise appropriate.

DATES: Effective date: This rule is effective July 30, 2004.

What Are the Current Requirements for EAD Issuance?

Under 8 CFR 274a.12(a), certain aliens are authorized employment
incident to their immigration status (e.g., lawful permanent residents,
lawful temporary residents, parolees, aliens in Temporary Protected
Status, etc.). Such aliens are eligible to work in the United States
regardless of whether they receive an EAD. However, these aliens must
apply to BCIS to receive an EAD evidencing their employment
authorization. Under 8 CFR 274a.12(c), certain aliens are required to
apply for employment authorization before they may begin to work in the
U.S. (e.g., students seeking to perform optical practical training,
aliens with pending applications for adjustment of status, etc.). Such
aliens must apply to BCIS to receive an EAD authorizing them to work in
the United States, as well as evidencing the fact that they are
employment authorized.
With limited exceptions, most classes of aliens who are employment
authorized under 8 CFR 274a.12(a) or 274a.12(c) are required to apply
for employment authorization using the Form I-765, Application for
Employment Authorization. If BCIS approves the Form I-765, it will
issue an EAD. For certain categories, the current regulations
specifically limit the EAD validity period to one-year increments. In
all other instances, and with limited exceptions, BCIS through policy
has set EAD validity periods at one year.


Why Is BCIS Removing the Current Regulatory and Policy Limitations on
EAD Validity Periods?

These regulatory and policy limitations often require an alien
whose underlying status is longer than one year, or whose underlying
application will remain pending with BCIS for longer than one year, to
apply for renewal of the EAD every year, creating a burden on the
applicant and an additional workload for BCIS. This rule gives BCIS the
discretion and flexibility to modify EAD validity periods for initial,
renewal, and replacement cards. BCIS also will establish EAD validity
periods for classes of aliens and will preserve the discretion to
establish validity periods of varying lengths for individuals within
those classes whose cases warrant a lesser validity period. BCIS will
issue field guidance to ensure that adjudicators use standard criteria
when exercising their discretion in establishing EAD validity periods.
For aliens who are employment authorized incident to status, BCIS
does not contemplate issuing employment authorization documents that
would expire only upon expiration of the alien's status. BCIS must
reserve the right to periodically expire such documents and, where
appropriate, issue new cards. This will allow BCIS to address any
security concerns and to ensure the integrity of the EADs process by
preventing fraud or misuse of such documents. BCIS intends to review
all classes of aliens who are employment authorized to determine a
general validity period for each class. For example, currently BCIS
issues

[[Page 45556]]

permanent resident cards (Form I-551) with ten-year validity periods.
Similarly, BCIS intends to issue EADs to asylees with a validity period
of five years, unless otherwise appropriate. An expiration date on the
card reflects only that the card must be renewed, not that the bearer's
work authorization has expired.

See: http://a257.g.akamaitech.net/7/257/2...4/04-16938.htm
for the entire text.

Folinskyinla

Hi:

Please forgive me -- I feel a need to gloat after that obnoxious "AILA, oh AILA ..." string intiated by Archie Wilson. My first reply in that string was:

"Hi:

I don't know. To be quite frank, I don't care. Trying to anticipate regulatory change is the path to madness. If it happens, it will happen when it happens.

Proposed regulations come out all the time, comments are submitted, and then nothing happens. [Although sometimes you see the Service Centers start apply the proposed standards rather than the legal ones in existence and by and by you see litigation]. Notice of Regulatory Agendas will come out and then not even a proposed regulation comes out.

I can envision this item being part of an Interim Regulation rather than a proposed regulation.

A long time ago, I received a legal response to a motion I had made in court [non-immigration case -- an attorney should not represent relatives, but I digress] which stated "Any myopic first year law student can see the error in counsel's arugment." Well, any "myopic first year law student" has had a class in legal research. Find one of those -- they are cheap and eager to please."

Well, I hit the nail on the head. It DID come out as an "interim regulation" -- that means that the regulation is effective TODAY via a legal shortcut around the usual "proposed reguation" with a comment period.

This is the FIRST official [e.g. Federal Register] notice that Mr. Wilson was asking about. Later on in the string, I had told him where to look -- www.uscis.gov has a law & regulation link which leads you to a "what's new" link which has a link to "Federal Register" postings. I just looked -- its there. AILA just published it on the member's site LAST NIGHT.

With vindication and with malice in my heart and letting my dark angel speak: Go to hell, Archie.

ian-mstm

Wahoo! Give 'im hell.

Ian

ironporer

Spot on Mr. F., and well said.

Bluegrass Lass

Tsk, tsk..such anger MrF.

Archie Wilson

Hi Mr. F,

Not much class on your part, sir.
And you really have nothing to gloat about.

You, sir, missed the keys parts of the thread I started saying there was an important need to know by list members as to this new development with USCIS.

You said you didn't care about this need, and you pooh poohed it as not important.

Your not caring about something this important reflects only upon you.
Maybe you have practiced law so long that you have become jaded with your profession and your practice emphasis.
The "Aila, Oh Aila" thread was apparently clarevoyant because it sought needed information on behalf of list members, and a week passes, and lo and behold, it appears in the Federal Register, and then on the AILA list.

The key is the information requested was important.

You were correct, and kudos to you, that this change did emerge in the form on an interim regulation. And kudos also to you that you were able to find it on the AILA site, just last night.

I started the "Aila, Oh Aila" thread to stimulate interest and obtain information for the list. It looks like I was successful in obtaining your full undivided attention.

With kindness in my heart and charity toward all your darker angels, I say to you, go in peace and always remember the charge of your profession to serve those who are in need.

Sincerely,
Archie Wilson

Archie Wilson

For those who never saw my initial post on July 22, 2004, on "Aila, Oh Aila"
which stated the query on behalf of list members in need of information, here it is:

----------------------------------------------------------------------------------------------
22 Jul 2004 17:37 _
------------------------------------------------------------------------
Aila, Oh Aila . . .

It would be nice if an AILA member could post the answers to the list so members would know what the deal is:

What is the status of the regulation change proposed by USCIS to increase the term of EAD to match the estimated time of the AOS adjudication???

Has it made the Federal Register, yet? What date??

If so, where is it in the process of going into effect? Date?

-------------------------------------------------------------------------------

mrseze

I hope he takes all unqualified, immoral and immature attorneys along with him. Hmmmm.

Ray

MR Fs words say
"I don't know. To be quite frank, I don't care. Trying to anticipate regulatory change is the path to madness. If it happens, it will happen when it happens"

Archies interpretation
"You said you didn't care about this need, and you pooh poohed it as not important"

Seems to me a very different thing..

And sorry Mrseze.. your comment is incomprehensible

mrseze

And yet you chose to direct a comment to me. Interesting.

Ranjini

You just blew it, Archie Wilson. Your patronizing attitude has cost you any help you may have got on this forum from one of our most helpful posters, Mr. Folinsky. And probably the rest of us who value the service rendered on this forum by him and Mr. Matt Udall.
He and Mr. Udall can choose whom they serve with their pro bono services. And I don't think you are going to be one of them.

Archie Wilson

Hi Rene,
Please don't get your panties in a wad.
F. does a good job . . . when he is focused.
He has a lot to do, and so does U.
They both are significant contributors here.
F. was on top of this subject, but a list member was the one who saw the USCIS change and posted it here first. Then my friend Mr. F. chimed in.
F. and I understand each other better than you think we do.
And always remember one thing . . . the question I posed on July 22, 2004 was for the benefit of the list.
Sincerely,
Archie Wilson

Noorah101

Excuse me,

I'm Rene....you need to respond to "Ranjini".

Thanks,
Rene

Archie Wilson

Sincere apologies to Rene.

Archie Wilson

Hi Ranjini,
Stay calm.
F. does a good job . . . when he is focused.
He has a lot to do, and so does U.
They both are significant contributors here.
F. was on top of this subject, but a list member was the one who saw the USCIS change and posted it here first. Then my friend Mr. F. chimed in.
F. and I understand each other better than you think we do.
And always remember one thing . . . the question I posed on July 22, 2004 was for the benefit of the list.
Sincerely,
Archie Wilson