Employment Authorization Card Delays – A New Twist On An Already Age-Old Problem

This week, we were faced with one of the most frustrating things an immigration lawyer can face but cannot control thanks to the way things are done by the immigration agencies: delay in our ability to file an application for employment authorization for our clients (in New York City) who are applicants for adjustment of status in immigration court.

In the past, an applicant for adjustment of status in removal proceedings was required to submit his or her application directly to the immigration judge upon a visa petition approval or a visa number becoming available.  Then, on April 1, 2005 the U.S. Citizenship and Immigration Services (“USCIS”) implemented a new policy.  At first, all immigration lawyers thought that the policy was an “April Fool’s Day” joke because the policy outlined an extremely tedious process for submitting relief applications for foreign nationals in removal proceedings.  Under this new policy, for anyone who was in removal proceedings and seeking discretionary relief (such as adjustment of status, cancellation of removal, etc.) a copy of that individual’s relief application, together with the filing fee for that application, was required to be sent to Texas for the initial filing and processing.  When a fee receipt was issued, it could be shown to the immigration judge to prove that the filing fee had been paid.  The immigration judge would then accept the original application.

However, the filing of the application in Texas, the receipt issuance by the Service Center in Texas, and the judge’s acceptance of the receipt and application did not occur within matter of days.  Often, this process took weeks or months. In fact, most immigration court cases take months, if not years, to be completed.  Of course, once a legitimate relief application is filed, a foreign national, in most circumstances, is entitled to request from the USCIS an authorization for employment during the pendency of his or her removal proceedings.  An application for employment authorization (commonly referred to as an employment authorization document (“EAD”) or a work permit), allows a foreign national, with no lawful immigration status, to work lawfully in the United States while his or her case is being litigated in immigration court.  Indeed, this is an important privilege, because it allows foreign nationals to become active members of the community, pay taxes, contribute to the economy and to their own families, and to demonstrate to the government that he is she is a responsible person, willing to work hard if allowed to, and that he or she is likely to become a productive member of society.

Since a foreign national is entitled to an EAD on the basis of having filed a legitimate relief application, the common practice among immigration practitioners (at least in New York), is to send in the EAD application to Texas along with a copy of the relief application for a client.  Logically, USCIS would see that the relief application is being filed and, on that basis, an EAD should be issued.  Our firm never had a problem obtaining an EAD for a client under this procedure.However, recently, we began to receive a waive of EAD denials for our clients who are applicants for adjustment of status in removal proceedings.  The denials simply stated that our clients were not entitled to EADs because the USCIS “had no proof” that a “relief application was pending in immigration court.”  Perplexed by such denials, we contacted the USCIS on our clients’ behalf.  After explaining to a USCIS representative that, in the past, a relief application and an EAD application were routinely submitted together at the Service Center as per the April 2005 policy, we were told that the Service Center no longer accepts concurrent filing of the relief application and the EAD application.  According to a USCIS supervisor with whom we spoke, when a foreign national’s relief application is mailed as required along with the EAD application, the Service Center “no longer accepts an EAD application until there is proof from the immigration court that the relief application has actually been filed with the court.”  The supervisor, who refused to give us her name or direct us to any written memorandum that outlined this policy, simply said “this is our policy.”  Of course, this unannounced “policy” change cost our clients the opportunity to obtain their EADs in a timely manner because the EAD application was “adjudicated” (but denied).  This means our clients who wish to re-file the EAD application will be required to pay the current filing fee of $340.

While furious with this unannounced USCIS policy, as immigration lawyers, our job is to do what is best for our clients, so that they can obtain the necessary authorization to which they are entitled, such as an EAD.  To comply with the USCIS policy, we went to the NYC immigration court to submit our clients’ relief applications (adjustment of status applications) with a copy of the filing receipt showing that the filing fee had been paid.  We took an extra copy of each client’s submission and asked that the court place a “received” stamp on our copies, so that we could then submit that as proof to the USCIS to comply with its “policy” in order to file our clients’ EAD applications.

We were stunned by the response:

No.  The Court will not stamp as “received” any copies of the relief applications.

We again explained what we were told by the USCIS supervisor from the Texas Service Center about what would be required to submit our clients’ EAD applications (proof from the court that relief application was filed).

The new answer:

No.  The Court will not give any “proof” that you submitted the application.

As defenders of our clients’ interests, we asked to speak with a supervisor, who was kind enough to call our office later on in the day.  The supervisor informed us that this “problem” of EAD denials is apparently a “national problem” (and not just a localized NY problem) and it is happening everywhere throughout the United States.  Immigration agencies at a national level are “working on it,” but until some specific guidance is issued, the NYC immigration court will not stamp any copies of applications for lawyers or pro se litigants to provide proof of having filed an application with the court.  Of course, our clients’ applications were accepted by the court and deemed properly filed and “pending” before the Court.  We just won’t be provided with any proof.  Mailing in the application to the immigration court via certified mail or any courier service, according to the USCIS, would not be “proof” that the application was properly accepted by the Immigration Court.

This is a classic case of Catch-22: a true no-win situation.  We cannot win with the USCIS without proof from the Court.  And the Court will not provide us with the required proof.  While as immigration lawyers, we understand (although greatly dislike) the bureaucratic process, it is the foreign national who suffers the most.  This new “policy” by the USCIS wastes time, money, and patience.  There does not appear to be any legitimate reason behind this “policy.”  It does not appear to speed anything up.  It does not appear to make anything administratively or fiscally efficient.  In fact, it has the opposite effect; it is overly burdensome on lawyers, foreign nationals and the immigration system as a whole.  There simply is no reason why a foreign national, who is an applicant for adjustment of status, should not be able to file an EAD application at the same time as he or she pays the current $1,010 filing fee for the adjustment of status application (which includes the fee for the EAD) and which payment the USCIS happily accepts.

Ruchi Thaker

Ruchi Thaker is New York City-based immigration attorney with extensive experience and excellent reputation for effective legal representation in simple and difficult immigration cases. I have experience in areas of deportation defense (criminal and non-criminal), federal court litigation, representation on appeals and motions with the immigration courts and the Board of Immigration Appeals, family-based immigration, asylum, naturalization, and consular processing.
Ruchi Thaker
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