Termination Of 274a.12(c) Employment Authorization
The conventional wisdom spoken by many attorneys is that once an I-485 application is denied, the Employment Authorization Document (EAD) is no longer valid because the basis for the application no longer exists. However, the I-765 is an independent application. Although the I-765 often requires a separate and independent basis (e.g., an I-485 application) in order for it to be accepted, processed, and serve as a basis for the issuance of the EAD, once it is accepted and the EAD is issued, the EAD acquires a life of its own.
For example, in the H-1B context an analogous situation has been recognized. When there are no more cap-subject H-1B numbers available for a given year, it is permissible for a cap-subject employer to file for a new H-1B petition as long as it is concurrent with a previously approved H-1B petition from a cap-exempt employer. USCIS has agreed that concurrent employment is authorized in spite of the fact that an H-1B number is not immediately available for what would otherwise be cap-subject employment.
Furthermore, should the employee cease the cap-exempt employment after the approval of the "cap-subject" concurrent petition, the employee remains authorized to work for the cap-subject employer for the duration of the petition's approval, but will be subject to the cap with a renewal or transfer petition. See the 30 May 2008 Donald Neufeld memorandum (HQ 70/6.2), item 3, pages 6 and 7. Thus, although the underlying cap-exempt H-1B petition that formed the basis for the "cap-subject" petition approval may be no longer valid, whether through expiration of the petition or through termination of employment, the subsequent petition remains valid for the duration of its approval.
An H petition may be revoked automatically or by Notice of Intent to revoke. 8 CFR 214.2(h)(11). Grounds for revocation by Notice include the circumstance where the beneficiary employee is no longer employed by the petitioner employer. Similarly, the EAD is subject to automatic termination under 8 CFR 274a.14(a) and revocation upon Notice under 8 CFR 274a.14(b). Automatic termination occurs upon the happening of just three events, none of which is the denial of the I-485 application:
Section 8 CFR 274a.14(b)(1) provides for revocation of the employment authorization by the District Director when:
i. . . . any condition upon which it was granted has not been met or no longer exists, or for good cause shown; or
While it can be argued that the denial of an I-485 application meets either or both of the revocation conditions, that is not the end of the matter. Section 8 CFR 274a.14(b)(2) requires a notice of intent to revoke for the conditions specified in subsection (1):
Notice of intent to revoke employment authorization. When a District Director determines that employment authorization should be revoked prior to the expiration date specified by the Service, he or she shall serve written notice of intent to revoke the employment authorization. The notice will cite the reasons indicating that revocation is warranted. The alien will be granted a period of fifteen days from the date of service of the notice within which to submit countervailing evidence. The decision by the District Director shall be final and no appeal shall lie from the decision to revoke the authorization.
As can be seen by the regulations, any such revocation by the director requires both a Notice of Intent to revoke and then a subsequent revocation after the applicant is granted 15 days to respond to the Notice of Intent to revoke. It cannot be accomplished instantaneously by fiat.
Reasons for not revoking the EAD can include evidence that the I-485 application is the subject of a Motion for Reconsideration/Reopen or Appeal. Showing good cause for the Motion might be sufficient to persuade the District Director not to revoke the authorization. Indeed, Section 274a.12(c) contemplates such an event:
Aliens who must apply for employment authorization. An alien within a class of aliens described in this section must apply for work authorization. If authorized, such an alien may accept employment subject to any restrictions stated in the regulations or cited on the employment authorization document. BCIS, in its discretion, may establish a specific validity period for an employment authorization document, which may include any period when an administrative appeal or judicial review of an application or petition is pending (emphasis supplied).
Some I-485 denials contain language that the EAD authorization is revoked pursuant to Section 274a.14(a). However, as discussed above, that section applies only to automatic revocations unrelated to a denial of the underlying I-485. A declaration such as this simple statement effectuates neither a notice nor an actual revocation of the employment authorization.
If the I-485 is eventually reinstated pursuant to a Motion or Appeal, it appears that the above provisions permit the employee who continued to work under the terms of the EAD to continue his or her adjustment application without being considered an "unauthorized alien" under Section 245(a):
245(a) Status as person Admitted for permanent residence on application and eligibility for immigrant visa. The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if
245(c) Alien crewmen, aliens continuing or accepting unauthorized employment, and aliens admitted in transit without visa. Other than an alien having an approved petition for classification as a VAWA self-petitioner, subsection (a) shall not be applicable to--
…(8) any alien who was employed while the alien was an unauthorized alien, as defined in section 274A(h)(3), or who has otherwise violated the terms of a nonimmigrant visa.
274A(h)(3) Definition of unauthorized alien.--As used in this section, the term "unauthorized alien" means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.
Similarly, if the I-485 is eventually denied after the Motion or Appeal, and the EAD has not been revoked by the District Director, the above may be used to argue that employment during that time was authorized. Indeed, one may argue that employment authorization continues for the duration of the authorized period unless and until such time as a 274a.14(a) automatic revocation event occurs, e.g., a Notice To Appear is issued, or a 274a.14(b) revocation is effectuated. Making that argument, however, does not translate that period of time into a type of "lawful" or "authorized" status. It likely would be a rare case (perhaps related to 245k) where such circumstances would be beneficial to the individual, particularly for future immigration status purposes, other than to permit payment for services rendered during the applicable time period.
This view is consistent with the current regulatory and practice frameworks, at least within the context of an I-485 based EAD. Where there are significant I-485 issues, or the Service believes that an NTA is otherwise warranted, the Service is authorized to issue an NTA upon the I-485 denial. This results in the automatic revocation of the EAD. Where the NTA is not yet warranted in the Service's discretion, a Notice of Intent to revoke the EAD can be issued in conjunction with the I-485 denial. The Applicant's response must be filed within 15 days and can include information regarding a filed or to be filed Motion or Appeal. If the Motion/Appeal is filed, the decision on the EAD can be held in abeyance during the pendency of the Motion or Appeal. If the Motion is granted, the Notice of Intent to revoke the EAD can be withdrawn. If the Motion is denied, the EAD can be revoked as provided in the regulations, perhaps as part of the decision on the Motion. If no Motion or Appeal is filed, the District Director may revoke the EAD after the end of the time provided to file the Motion or Appeal.
Scot A. Silzer is Attorney at Law at Silzer Law Chartered and a former Attorney for the Human Resources Office of the Florida Board of Regents and a former General Counsel for the University of Central Florida and Metropolitan State College of Denver. Mr. Silzer has extensive experience in labor and employment arbitrations and human resource issues. He has worked with universities and private businesses advising on complex cases. For the past fourteen years, Mr. Silzer has been in private practice focusing on immigration and employment law. He works directly with employers, businesses and individuals to plan immigration strategies to meet their immigration objectives.
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