New policy on work authorization

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By Atty. Chris Caday Lozano

In another Trump Administration effort to reduce legal immigration, the USCIS updated its policy manual to make it harder for applicants to obtain work authorization.

U.S. Citizenship and Immigration Services (USCIS) has imposed new requirements on its officers for exercising discretion that will substantially increase time and expense for the agency and applicants. Applications for work authorization will be particularly impacted.

On July 15, 2020, USCIS issued updates to its Policy Manual. This manual contains the agency’s official policies and “assists immigration officers in rendering decisions.”

USCIS claimed it was “consolidating” prior guidance about how officers apply discretion when they decide petitions or applications. Instead, the agency has created a chart of applications and petitions it considers to be subject to its discretionary analysis and imposed new decision-making procedures.

Under this new guidance, when making a decision on a petition or application, an officer must perform a separate analysis weighing “all positive factors” in a case against “any negative factors” in the applicant’s entire record. The Policy Manual has a non-exhaustive list of more than 20 possible factors an officer can consider.

Previously, officers would assess eligibility—and if ineligible, deny solely on that basis. If a person established eligibility but a discretionary analysis also was required, the officer would exercise discretion favorably in the absence of negative information.

But gathering documentation to highlight positive factors and minimize negative ones is an enormous burden for applicants. Those who are most at risk—like asylum applicants or victims of domestic violence—may be unable to get such documents. This leaves them incapable of getting work authorization and supporting themselves and their families while they wait for a decision on their application.

Work authorization for a person applying to become a lawful permanent resident (LPR) is one example of the unnecessary burden and delay that this policy imposes. In the Baltimore-Washington, D.C. corridor, USCIS’ posted processing time for LPR applications is 11 to 36 months.

Under past agency practice, USCIS would decide the work authorization application based on a relatively manageable amount of documentation, such as photo identification.

But the factors listed in the Policy Manual include the “likelihood [LPR] status will ensue soon,” employment history, and “history of taxes paid.” What purpose—other than delay—is served by having an applicant submit documentation that will be reviewed in making the final decision on the LPR application? The time it takes for the officer to analyze the documentation also adds to the delay.

The delay and expense to the agency is compounded by the Policy Manual’s directive that the officer prepare a written analysis of the evidence—for a benefit requested while the LPR application is pending. USCIS has imposed these new burdensome requirements at the same time it has asked Congress for money to continue operations and has sent furlough notices to 13,000 workers.

The Policy Manual changes also exceed USCIS’ authority for deciding various categories of petitions and applications. For example, the Immigration and Nationality Act provides that the agency “shall” approve employment-based immigrant petitions after finding that the facts presented are true. This is not a discretionary action.

Note:  This is not a legal advice.

SUCCESS STORIES

  1. For the month of July 2020, we received two approvals of Naturalization applications from USCIS.
  2. For the month of June 2020, we received approvals from USCIS two naturalization applications, two renewal of green card and one adjustment of status.
  3. For the month of May 2020, we received approvals from USCIS for three green card renewals, two adjustment of status, and one naturalization application.
  4. For the month of April 2020. we received approval of one adjustment of status, three removal of condition on residence and one renewal of green card.
  5. For the month of March 2020, we received six Adjustment of Status and three Naturalization approvals from USCIS.
  6. For the month of February 2020, we received approvals from USCIS of five Adjustment of Status application andthree Naturalization application.
  7. For the month of January 2020, we received approvals from USCIS of five Adjustment of status applications,three N-400 applications for naturalization and three fiancé visa application.
  8. For the month of December 2019, we received four approvals of naturalization applications, five approvals of Adjustment of Status applications, two approvals of Petition to remove condition on residence, one renewal of green card approval and one green card application at the U.S. Embassy.
  9. For the month of November 2019, we received approvals of one naturalization application, one renewal of green card, one Petition to remove condition on residence and one adjustment of status.
  10. For the month of October 2019, we received five naturalization application approvals and two renewal of green card and one DACA approval.
  11. For the month of September 2019, we received approval of two naturalization applications, one adjustment of status and one application to remove condition on residence.
  12. For the month of August, 2019, we received approval from Immigration Court for a waiver of misrepresentation for a client who has committed marriage fraud.We also received approval from USCIS of two naturalization applications and two fiancé visa petition.

If you have immigration problems the Law Offices of Crispin C. Lozano can help you find a solution before your problem gets worse which could lead to deportation and family separation.

Chris Caday Lozano, Esq. is an active member of the State Bar of California, the American Immigration Lawyers Association and San Francisco Trial Lawyers.  He practices immigration law, bankruptcy and personal injury law since June 1999.  His contact phone is 1-877-456-9266, email: info@CCLlaw.net  Chris Caday Lozano is currently running as Councilmember for Hayward City Council for November 3, 2020 election.

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