USCIS held one of its regular listening sessions today on various employment-based immigration changes under consideration. The session concentrated on green card issues. I was one of the first to ask a question and brought up an issue that’s bothered me for a while.

In adjustment of status applications, would be immigrants are able to obtain interim work authorization (the Employment Authorization Document) and travel permission (Advance Parole). To get work and travel permission, applicants must submit separate applications and have to wait a couple of months.

But is this really necessary? I suggested USCIS look at making employment and travel benefits “incident to status” rather than dependent on issuing a document. There is no real case-by-case review of these applications. I’d venture a guess that the approval rate for each type of application is over 99%.

EADs and APs create a massive workload for USCIS examiners and since there is not a separate application for them anymore, it’s no longer a profit center. Couldn’t USCIS divert the workers handling these applications to other product lines where they’re needed?

My idea is for the receipt for the I-485 adjustment application to serve as documentation of permission to work and travel. This is not so far-fetched. There are examples where a receipt is all that is needed for work. For example, filing an H-1B extension entitles the applicant to an automatic 240 day extension of H-1B status and the receipt is the only thing the worker needs to demonstrate employment authorization.

I think the EAD and AP documents have been around so long, no one even knows why they’re considered necessary. A colleague and I researched the statute and don’t see where USCIS is required to issue separate documents. USCIS regulations call for these benefits to be provided via separate documents. But the White House is looking to issue new regulations where warranted. And I think this is warranted.

I’m interested in your feedback. Am I off my rocker? Am I wrong on the law? Are there good policy arguments for producing these documents that I’m missing?

Greg Siskind

Greg Siskind

Greg Siskind is a partner with Siskind Susser, PC - Immigration Lawyers. After graduating from Vanderbilt University, he received his law degree at the University of Chicago. He created the first immigration law web site in 1994 and the first law blog in 1997. He's written four books and currently serves on the board of governors of the American Immigration Lawyers Association. He can be reached by email at gsiskind@visalaw.com.
Greg Siskind

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3 Responses to Why Do We Need Work and Travel Cards in Adjustment Cases?

  1. Don Riding says:

    The Advance Parole policy was first issued in the days when no fee was charged for this benefit. The only reason for being strict about granting Advance Parole was the time it took to issue this benefit when no fee was collected. When the INS started charging a fee, the rules were relaxed, but many officers still didn’t want to grant advance parole unless the applicant had a very good reason. As the INS Officer in Charge in Fresno from 19843 to 2003, and later the USCIS Field Office Director until the end of 2011, I found that employees did not understand there is no down side to granting Advance Parole. I would ask, “Why deny the benefit?” Nobody could answer the question with a good response. A few suggested the applicant may not return to the U.S. “And how is that bad?” I would ask.

    Work Authorization was not a big deal in the days before employer sanctions. Now, even if an applicant has no intention of working, work authorization is often needed to get a driver’s license or a social security number (which is needed to put a name on a joint bank account -presumably with a spouse). Both should be automatic with the filing of the Adjustment of Status package. Why charge separate fees? To get more money is the logical answer. USCIS is self funded and so many fee waivers are granted that somebody has to make up the difference.

    • Greg Siskind says:

      Thanks for the history. It would be great if someone at USCIS would at least offer an explanation of why the current process is needed or what the downside to making employment and travel authorization incident to status. Having a process that costs tens of millions (a guess) per year and is tremendously inconvenient to the public should at least come with a good explanation.

  2. Don Riding says:

    The original idea was to raise the adjustment fee and give everyone employment authorization and advance parole. As you point out, no new forms should be needed. However, government rarely works as planned.

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