AILA info from NBC on EAD for Administratively Closed Cases

Eligibility for employment authorization for aliens whose removal proceedings have been administratively closed.

Question 5:

An alien who has submitted an application for relief, such as an application for asylum (Form I-589), application for adjustment of status (Form I-485), or application for cancellation of removal (Form EOIR-42A/B), and whose case has been administratively closed in the exercise of prosecutorial discretion, continues to have an application “pending” for purposes of eligibility for employment authorization under 8 C.F.R. § 274a.12(c)(8), (9), or (10). Please describe the evidence that an applicant for employment authorization should submit to establish that the application for relief remains pending.

The burden is on the applicant to establish that he/she is eligible for employment authorization at the time of filing per 8 CFR 103.2(b)(1).

An applicant for work authorization under the (c)(9) subparagraph should submit initial evidence with the application which establishes that a Form I-485, pursuant to Section 245 of the INA, is currently pending with the court. If the applicant establishes eligibility, and USCIS determines that the applicant warrants a favorable exercise of discretion, USCIS will approve the application. If the applicant does not establish that he/she is eligible for employment authorization at the time of filing, the application may be denied. Acceptable proof that a Form I-485 is pending before the Immigration Judge may be a copy of the file stamped I-485 received by the Immigration Court, or other Court or USCIS document which indicates an I-485 application is pending with the Court at the time the I-765 is filed.

If proceedings are administratively closed before the judge adjudicates the I-485, the I-485 remains pending. A copy of any record or order of the court indicating the proceedings have been administratively closed should be submitted at the time of filing. An applicant for work authorization under the (c)(10) subparagraph should submit initial evidence with the application which establishes that a Form EOIR-42A/B, or EOIR-40, is currently pending with the Court. Acceptable proof that Form EOIR42A/B, or EOIR 40, is currently pending before the Immigration Judge may be a copy of the file stamped EOIR-42A/B, or EOIR-40, received by the Immigration Court, or other Court or USCIS documents that indicate that the EOIR-42A/B, or EOIR-40, is pending at the time the I-765 is filed.
If proceedings are administratively closed before the judge adjudicates the EOIR-42A/B, or EOIR-40, the application remains pending. A copy of any record or order of the court indicating the proceedings have been administratively closed should be submitted at the time of filing.

Please note that NBC does not adjudicate I-765 applications based on an asylum application for persons in proceedings.

AILA InfoNet Doc. No. 12072351. (Posted 07/23/12)

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