On July 16, 2018, the U.S. Citizenship and Immigration Services (USCIS) updated Form I-765, Application for Employment Authorization. The form is now seven pages long and includes new questions about previous arrests and convictions.
How will this affect individuals applying for employment authorization?
The new form asks that applicants who fall in the three specific categories below disclose information about their previous arrests and convictions and submit relevant documentation:
- Applicants with Pending Asylum Applications - Eligibility Category: (c)(8). These are individuals who are currently in the United States, have applied for asylum, and at least 150 days have passed since the application has been filed and no decision has been made on the case.
- Applicants with an Approved Employment-based Immigrant Petition but there are no visas available - Eligibility Category: (c)(35). These are principal beneficiaries of approved Form I-140s who are currently in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status. USCIS may grant employment authorization for up to one year for applicants who may be caught in the continually expanding backlogs for immigrant visas and face compelling circumstances. This stopgap measure is intended to address certain particularly difficult situations, including those that previously may have forced individuals on the path to lawful permanent residence to abruptly stop working and leave the United States.
- Applicants who qualifying dependent spouses and children of a principal beneficiary granted employment authorization under category (c)(35) - Eligibility Category (c)(36). These are dependent spouses and children of individuals currently in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status and face compelling circumstances, including those on the path to lawful permanent residency.
What documentation do I need to submit?
For initial and renewal applications, you are required to submit evidence of any arrests and/or convictions. Asylum applicants who are convicted of an aggravated felony, cannot be granted employment authorization under this eligibility category. USCIS will make the determination as to whether your convictions meet the definition of aggravated felony. Applicants who fall under the (c)(35) and (c)(36) eligibility categories who are convicted of a felony or two or more misdemeanors committed, cannot be granted employment authorization under this eligibility category. USCIS will make the determination as to whether your crimes fall into either of these categories.
You must provide information and any supporting documentation on all crimes which you were convicted of so USCIS can make an appropriate decision. Provide a certified copy of all arrest reports, court dispositions, sentencing documents, and any other relevant documents. Arrests include political arrests that did not result in any formal criminal charges. NOTE: USCIS may, in its discretion, deny your application if you have been arrested and/or convicted of any crime.
I have been arrested or convicted of a crime. What should I do?
If you fall within one of the three categories above and have been arrested or convicted of a crime, it is important that you speak with an immigration attorney who can advise on the types of documents that should be attached to the work permit application of someone with an arrest or conviction history. USCIS will continue to accept the current version of the work permit application until September 16, so applicants who are eligible to either apply for a work permit or renew an existing work permit before September 16 should do so.
If you are affected by this development and would like more information or have any questions, please contact us. Follow us on Instagram, Twitter, Facebook, LinkedIn or Tumblr for up-to-date immigration news.
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