Responses to 60-day FRN Public Comments
Form I-765 Comprehensive Revision
Several recurring issues or themes ran through the public comments on the proposed revision of Form I-765. Rather than repeat our response to those issues multiple times, USCIS is providing a list of the recurring items and our responses at the beginning of this document. Responses to other unique issues can be found in the table below.
Commenters should also review the Form, Instructions, and Tables of Changes posted in the 30-day Federal Register Notice for the edits that USCIS has made in response to public comments.
1) Part 3. Biographic Information – Many commenters recommended that USCIS remove Part 3. Biographic Information.
USCIS response: This Part has been removed from the revision of Form I-765 and Instructions.
2) Government Issued Identification Document – Many commenters expressed concern about the requirement that applicants for an Employment Authorization Document submit a copy of a government-issued identification document with their application. Issues raised included the difficulty asylum seekers, refugees, minor children, or victims of crime or trafficking might have obtaining such documentation.
USCIS response: Submission of a government issued ID is not a new requirement. The current I-765 instructions require submission of a government-issued ID if there has been no prior EAD issued. Information about providing secondary evidence when a required document is not available is outlined under “Evidence” in the General Instructions section of the Form I-765 Instructions.
T &U nonimmigrants are issued an EAD upon approval of either the Form I-914 or Form I-918. Therefore, T &U nonimmigrants applying for renewal or replacement of an EAD card using Form I-765 can use their previously issued EAD card as their government issued ID.
3) Item Numbers collecting information about prior I-765 filings – Many commenters raised concerns about Item Numbers 20.a.-20.d. on the 60-day version of Form I-765. These Item Numbers collected information about previous Form I-765 filings.
USCIS response: These Item Numbers have been part of Form I-765 for many years; however, USCIS has removed them from the versions of Form I-765 submitted for 30-day public comment.
4) Length of Form I-765 – Many commenters expressed concern about the length of Form I-765.
USCIS hopes that removing Part 3 and several Item Numbers from the Form will shorten it somewhat.
5) Safe Mailing Address – Many commenters stated that a Safe Mailing Address should be added to Form I-765.
USCIS is not adding a separate Safe Mailing Address section to the form at this time. Instructions regarding the use of a Safe Mailing Address are located in the Specific Instructions section. USCIS may take this recommendation into consideration in a future form revision.
With respect to comments that Special Immigrant Juveniles (SJIs) and asylum applicants need a Safe Mailing Address: the Safe Mailing Address option is for applicants protected by 8 USC 1367. SIJs and asylum applicants do not fall under this category.
6) Form Field Length – Many commenters stated that the length of data fields on Form I-765 was insufficient.
USCIS is not making changes to the form field lengths at this time. Form I-765 allows 30 characters each for Family Name (Last Name), Given Name (First Name), and Middle Name fields. There may be similar character limits in other fields. If additional space or explanation is needed to provide completely information, Part 7. Additional Information can be used.
7) Note To All Applicants in Part 4. – Several commenters felt that this note was too harsh.
The NOTE on page 4 is standard information provided to applicants and petitioners across USCIS forms to remind them to provide all information needed for USCIS to make an eligibility determination. If an application is accepted and the supporting documentation is deemed to be insufficient to determine eligibility, generally, USCIS will issue an RFE for additional evidence.
8) Use of “Sex” instead of “Gender”
USCIS has changed the wording on Form I-765 to say “gender” instead of “sex.”
9) Removal of three separate parenthetical boxes at Part 2, Eligibility Category 27 – several commenters expressed concern that a single, free text field here would be confusing.
USCIS has added the three separate parenthetical boxes back to the form at this Item Number.
10) Submission of information about arrests and convictions by asylum applicants – Many commenters expressed concern about the submission of information about arrests and convictions by asylum applicants.
USCIS officers are required by regulation to evaluate aggravated felonies for asylum applicants and have been trained at doing this for many years. Arrests/convictions are specific to c35, c36, c8 and are regulatory.
Comment # |
Public Comments |
USCIS Response |
Comment 1. |
Commenter: Armando Borges |
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Good Afternoon!
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Response: Thank you for your comment.
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Comment 2. |
Commenter: Jean Pubileee |
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i am not in favor of giving employment to either illegal immigrants, lottery winers, pregnant women who come here to have their babies so they can be automatic american citizens which is stupid becaues no other country in the world does thise, and refugees. we dont need them here. we are losing all of our companies and businesses. it is time to keep our companies here and not allow those who move to sell t hose products to americans. we aer not in a pickle. we have the largest purchasing power in this world and that purchasing power can buy us regulations that favor us. dont let all these sneak lawbreakers get jobs. dont let the greedy profiteers here who want to pay lower wages get away with that. they want to reduce labor to peons again and slaves and serfs in america. keep foreigners out.
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Response: Thank you for your comment. Our responses are limited to addressing comments about Form I-765.
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Comment 3. |
Commenter: Scott Keller |
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I am commenting as a university PDSO, and I would like to advocate against this new I-765. It is unnecessarily long and asks questions that are irrelevant, such as weight and height.
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Response: USCIS is required to run background checks for an I-765 applicant. These "other names used" fields provide a place for applicants to give USCIS all names used by the applicant (such as nicknames, maiden names, shortened names and spelling variations). Including this information prevents delays in identifying potential name variations and allows background checks to be completed more timely.
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Comment 4. |
Commenter: Lori Jones
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The addition of clarifying language is helpful for non-native
English speakers (e.g. Question 24 in Part 2).
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Response: Thank you for your comment. The issue you raise is addressed above.
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Comment 5. |
Commenter: Christin Kim
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I would like to suggest adding an "In Care Of" line for mailing address or a safe mailing address option for VAWA self-petitioners who would like to receive their EAD card or SSN card to a safe address. Thank you.
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Response: The revised form includes an “In Care Of” line in the mailing address section. |
Comment 6. |
Commenter: Donald Duck |
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4.b. Street Number and Street Name
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Response: Thank you for your suggestions. USCIS is not making changes to Item Numbers 4.b. – 6.e.at this time. USCIS will change Item Number 17. to “Gender,” but will not add a box for “Other.” USCIS is removing Part 3. Biographic Information from this revision of Form I-765. |
Comment 7. |
Commenter: Alexis Akagawa
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Please shorten the proposed I-765 form. Reducing the number of information fields is possible by eliminating redundant and variable conditions.
For example international student applications for employment benefits for Optional Practical Training, c3A, c3B and c3C categories ask for copies of previous Employment Authorization Documents.
The Alien Registration Number (page two, field #7) is unnecessary because the adjudicating officer will see the number on the EAD cards or will be able to retrieve information from USCIS' databases. The same logic applies for page 3, field 20a, 20B, 20c and approved check box for 20d.
Passports are included for OPT applications so 21b is redundant. If you deem travel document as necessary please provide in-form descriptions as to how it differs from a passport and I-94 record and what to do if there is no number or ID available to an international student.
The Student and Exchange Visitor Information System number 26 can be removed because students must include the form I-20 with OPT recommendation with their applications and USCIS should have viewing capability to the SEVIS system.
Please remove the Ethnicity and Race boxes as these are US constructs which may not apply to international students.
The weight and hair color are also conditions which can change frequently so I don't see the point in asking. Also even if USCIS should want to know, wouldn't this information be more easily ascertained through facial recognition software?
For the reasons mentioned above, please eliminate unnecessary fields and questions which may cause confusion or are changeable for young people. A succinct I-765 will not only save applicants time and reduce confusion, but eliminate adjudicator's time assessing long forms and reduce the chances for Requests for Evidence.
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Response: Thank you for your comment. Some of the issues you raise are addressed above. Unique issues you raise are addressed below.
Form I-765 is used by applicants in various employment authorization categories and cannot be revised to be specific to the student OPT categories. The questions asked on the form provide information necessary for USCIS adjudication officers to determine eligibility for employment authorization and issuance of an EAD.
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Comment 8. |
Commenter: Sarah Stevens
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I am a DSO who frequently assists F-1 students with the I-765 application for the post-completion OPT category (c3B).
1) I think the option to apply for SSN smoothly with the EAD application process is a good one and I hope it works as planned.
2) This new form needs longer field lengths in most every spot, but particularly on questions 1 and 2. Many parts of the world have multiple family and/or middle names that simply will not fit in the space in the revised form.
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Response: Thank you for your comment. USCIS is not making a change to the field lengths at this time. If additional space or explanation is needed, Part 7. Additional Information can be used. |
Comment 9. |
Commenter: Robert Phipps |
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Field 21 on the I-765 requires the name of the employer and the employer's E-verify number. The E-verify field is much too long for the E-verify number and the field for the employer's name is much too small. Please consider revising.
Also, field 3 needs an additional line for "in care of" addresses as many of the applications are filed by third parties.
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Response: Thank you for your comment. USCIS is not making changes to the field lengths at this time. If additional space or explanation is needed, Part 7. Additional Information can be used. USCIS notes that this revision of Form I-765 includes an “In Care Of” line in the mailing address section for the applicant. |
Comment 10. |
Commenter: Jennifer Kenyon |
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The proposed revisions to the form I-765, Application for Employment Authorization, include a significant increase in information collected, much of which seems completely irrelevant and necessary for a student or other individual applying for work authorization.
In particular, Part 3, Biographic Information includes questions about height, weight, eye color, and ethnicity that are cumbersome, invasive, and in no way pertain to work authorization. I believe that Part 3 should be deleted from the revised form.
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Response: Form I-765 is used by applicants in various employment authorization categories and cannot be revised to be specific to the student OPT categories. These questions provide information necessary for USCIS adjudication officers to determine eligibility for employment authorization and issuance of an EAD. USCIS is removing Part 3. Biographic Information from this revision of Form I-765. |
Comment 11. |
Commenter: Andrea Pietrzyk
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With regard to the changes on the form, it would be helpful if the character limit on Question 1 (Full name) is extended. Frequently, applicants have names that exceed the current character limit in those boxes. There could be issues with the applicant's documents (EAD and now the Social Security Card, since applicants can now apply for both simultaneously), if the applicant cannot enter in the full name.
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Response: Thank you for your comment. Form I-765 allows 30 characters each for Family Name (Last Name), Given Name (First Name), and Middle Name fields. USCIS is not making changes to the field lengths at this time. If additional space or explanation is needed, Part 7. Additional Information can be used.
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Comment 12. |
Commenter: Heather Jacobson |
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Regarding the proposed Form I-765 revisions, the additional
information being collected will significantly increase the time
needed for an individual to complete this form and many of the new
items seem unnecessary given the supporting documents that are
included in the I-765 application. For instance, with Part 3,
Biographic Information, not only does this information seem
unnecessary for employment authorization but several of these
traits could be determined to some extent from the passport
photos. Similarly, asking for the SEVIS number in Part 2 Item 26
is redundant because the student would be submitting a copy of
their I-20 with the application.
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Response: Thank you for your comment. Many of the issues you raise are addressed above. We have responded to unique issues you raise below.
Form I-765 is used by applicants in various employment authorization categories and cannot be revised to be specific to the student OPT categories. These questions provide information necessary for USCIS adjudication officers to verify identify, determine eligibility for employment authorization and issuance of an EAD, and make an informed decision.
USCIS uses information in the mailing address fields for mailing notices to the applicant. The physical address identifies the applicant’s residence. USCIS has tried to reduce the burden on applicants by including a checkbox that can be used if the applicant’s mailing and physical addresses are the same.
USCIS has added language in the Instructions to clarify the type of information being requested in the Item Number requesting the applicant’s degree and major.
USCIS offers the daytime telephone number and mobile telephone number fields as options across all our forms.
An applicant should submit all pages of the application.
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Comment 13. |
Commenter: Kathy Harrington |
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I work with students applying for OPT. Many students have Macs and
use Safari or Chrome browsers and often the I-765 form does not
work well with this combination of computers and browsers. I
respectfully request the following of any new form that USCIS
distributes:
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Response: Thank you for your comment. Some of the issues you raise have been addressed above.
In order to view, fill out, save, and print USCIS’s PDF forms, you should use the latest version of Adobe Acrobat Reader, which you can download for free at https://get.adobe.com/reader/. Filling out USCIS forms when opened in a browser or used in a different program may cause issues.
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Comment 14. |
Commenter: Deborah Parris |
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On the recent changes to the I-765 form, the spaces for the Family name, First name, and Middle name (item # 1) are too small. Many people from foreign countries have multiple names. Space should be given to provide the name that matches their other documents, like the passport.
Also space for address (#3) is too restrictive, Space in # 5 for place of birth is too small. Item # 21 is too small for degree and employer's name. Many PDF programs change the font size as the text grows larger than the box, but this one does not.
It would be helpful to have an "in care of" line for the address and a second address line anyway.
With the new social security boxes, some browsers will not let you type the information in, even after checking the Yes box.
I am not sure why # 2 other name used needs three boxes, but perhaps some additional room could be obtained from that area.
The form has become too difficult to work with and we find we have to add cover letters providing the information that won't fit or hand writing it, but that makes it difficult for USCIS staff to read.
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Response: Thank you for your comment. Many of the issues you raise have been addressed above. Responses to unique issues you raise are addressed below.
The mailing address section of this revision of Form I-765 includes an “In Care Of Name” field.
In order to view, fill out, save, and print USCIS’s PDF forms, you should use the latest version of Adobe Acrobat Reader, which you can download for free at https://get.adobe.com/reader/. Filling out USCIS forms when opened in a browser or used in a different program may cause issues.
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Comment 15. |
Commenter: Megan Popick |
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Upon review of the draft I-765, there is information that appears to be both redundant, unnecessary and confusing. My bulleted comments are below:
4) 23. It appears that the State is
required, but it is unclear what the applicant should do if they
went through CBP outside the US such as in Canada. 5) 30: It is unclear why this
information is relevant to the application
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Response: Thank you for your comment. Many of the issues you raise have been addressed above. Responses to unique issues you raise are addressed below.
USCIS is not making a change to the Apt., Ste. and Flr. Item Numbers at this time. This format is consistent across all USCIS forms and corresponds with USPS validation standards.
Information requested in Item Numbers 21.b, 21.c. and 26 is necessary for USCIS adjudication officers to verify identify, determine eligibility for employment authorization and issuance of an EAD, and make an informed decision. USCIS adjudication officers use both responses to questions on the form and evidence to make their determinations.
USCIS is not making any changes to Item Number 23 at this time. Part 7. Additional Information can be used if more space or an explanation is needed.
Item Number 30. is relevant to the applicant’s eligibility for (c)(8) EAD.
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Comment 16. |
Commenter: Emily Lee |
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Item 1. Please expand the fields for names. As a DSO I often have
students whose names do not fit within the fields. We then run
into issues with how the names are printed on the EAD (even if we
include passport and an explanation page). Also, it might be
possible to remove the "Middle Name" field as most
passports just have 2 name fields (given & family) and
therefore applicants wouldn't have to decide what is their "middle
name". |
Response: Thank you for your comment. USCIS is not making changes to the field lengths at this time. If additional space or explanation is needed, Part 7. Additional Information can be used.
The mailing address section of this revision of Form I-765 includes an “In Care Of Name” field.
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Comment 17. |
Commenter: Derek Yan |
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Regarding the newly revised I-765 application, I noticed that the space for the Family Name is not sufficient for some of our students who came from South American and African countries, where their origins tend to have longer or combined names when compare to other students. I will appreciate the further modification or adjustment to the Form I-765 or provide additional guidance(s) on how we can fit longer names into the spaces already exist on the form.
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Response: Thank you for your comment. The issues you raise are addressed above.
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Comment 18. |
Commenter: Nina Morganlander |
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The form going from one-page one year ago to the current two-page form seems unnecessary. To make the form seven pages is excess and wastes the time of students, International Student Advisors (ISAs), refugees, asylees, (attorneys and whomever else uses the form. ISAs, such as myself, are asked to do more work, such as reviewing I-983 forms, with no staff or pay increase. This form just creates a longer form for us to review. (Over three times longer.) The new draft version is lengthy and now includes unnecessary irrelevant information; particularly Part 3 - Biographic Information. Applicants height, weight, ethnicity, race, hair and eye color has nothing to do with whether or not they qualify for OPT, Economic Hardship, etc.
In Summary, the form is already too long and should be kept as short as possible and not include unnecessary information. Thank you for your time and consideration.
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Response: Thank you for your comment. The issues you raise are addressed above.
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Comment 19. |
Commenter: Anonymous (M S) |
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This form is too long. Until very recently, the I-765 was one page long. Now, within a year, it has gone to two pages and now seven pages. This form asks for too much information. The unnecessary length will waste USCIS resources as officers spend more time reviewing extraneous information. The result will be more delays in issuing employment authorization documents, more inquires to the National Customer Service Center, more inquiries to the Service Centers and the Service Center Operations Directorate, and more pointless lawsuits for USCIS to defend, including wasted U.S. Attorney time. When will the insanity of ever-expanding USCIS forms end? This form also adds to USCIS legacy costs by increasing the size of each file. The drafters of this form will not be around to witness all these negative consequences, but I ask that you consider these consequences before finalizing the form.
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Response: Thank you for your comment. Your issues are addressed above.
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Comment 20. |
Commenter: Katie Pettet, American University |
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Overall Comments In general, this revised I-765 asks for too much information that is not needed to adjudicate an OPT application for F-1 students. We recommend a separate and shorter application for OPT employment authorization. The instructions that go with the new I-765 are too long and complicated. Specific Comments Part 2. Information about You
Your Full Legal Name Comment: We support more space for names.
1.c Middle Name: Comment: Depending on the browser or if you download the document, you cannot put a slash ( / ). When the applicant needs to write N/A for not applicable, they cannot.
Your US Mailing Address, 4.c Comment: You cannot type in anything in this open field.
Other Information Comment: This is unclear. Information for what purpose? To apply for SSN?
8. USCIS Online Account Number (if any). Comment: Students do not have this. Would be better to say “if applicable” instead of “if any.”
20.c Enter the date your Form I-765 was adjudicated Comment: The application should ask for the dates of any prior OPT authorizations, not when an application was adjudicated. Students often do not have this information.
Information about Your Last Arrival in the United States 23. Place of Your Last Arrival into the United States Comment: Does this mean port of entry? Last arrival could be a connecting flight to a small regional airport, not necessarily where a port of entry is. There are ports of entry outside the US: Toronto, Dublin, etc., which means there needs to be space to select “country” in addition to City and State.
25. Your Current Immigration Status or Category (for example, B-2 visitor, F-1 student, parolee, deferred action, or no status or category) Comment: The instructions say to write F-1, not F-1 student.
Part 3. Biographic Information Comment: OPT applicants do not need to submit biographical information to qualify for eligibility for OPT. This section could be made optional.
Part 7. Additional Information Comment: This is a very helpful section to include because some applicants run out of space on the current I-765.
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Response: Thank you for your comment. Many of the issues you raise have been addressed above. Responses to unique issues you raise are addressed below.
Form I-765 is used by applicants in various employment authorization categories and cannot be revised to be specific to the student OPT categories.
Information collected under “Other information” includes information necessary is issue an applicant a Social Security Number and/or Social Security card, if requested.
USCIS is not making any changes to Item Number 23 at this time. Part 7. Additional Information can be used if more space or an explanation is needed.
USCIS has updated the instructions language for Item Number 25. to ensure alignment with the Form.
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Comment 21. |
Commenter: Rebecca Curran, International Student Advisor at Wichita State University |
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Summary: I support a redesign of the I-765, but I would like to recommend the following modifications be made before the final version is published.
Part 2, Item 1 Make the fields on the I-765 consistent with the fields on the EAD. The name fields on the EAD are “Surname” and “Given Name” and it would be more clear if the name fields on the I-765 were identical. Here are my suggested changes to the 10/10/17 draft:
Part 2, Items 12 & 13 Make the fields on the I-765 consistent with the fields on the EAD. The name fields on the EAD are “Surname” and “Given Name” and it would be more clear if the name fields on the I-765 were identical. Here are my suggested changes to the 10/10/17 draft:
Part 2, Item 20 Item 20.c. asks for the date that the most recently filed form I-765 was adjudicated. Where can the applicant find this information? There is a date on the paper to which the EAD is attached for mailing. Is this the adjudication date or the card printing date? Please add instructions to form indicating where this information can be found.
Part 2, Item 21 Item 21.c. asks for “Travel Document Number” which is something that not all applicants will have. Please add the phrase “(if any).”
Part 3, Item 2 This item asks applicants to choose a race and only gives 5 options. Additional guidance is needed for applicants to know how to correctly answer this question. For example, what race should a student from India mark, who is from the continent of Asia but doesn’t fit the typical American definition of “Asian”? How about a Russian, Iranian, or Moroccan applicant?
Part 3, Item 6 This item asks for the applicant’s hair color but does not specify whether it should be the applicant’s natural hair color or their hair color at time of filing (if, for example, they have died their hair.)
In closing, I would like to thank DHS for inviting me to participate in this public comment period and look forward to seeing the new form after the comments received from me and from other interested parties have been taken into account.
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Response: Thank you for your comment. Many of the issues you raise have been addressed above. Responses to unique issues you raise are addressed below.
USCIS is not making changes to the data field labels on Form I-765 at this time.
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Comment 22. |
Commenter: Makeda King- Smith
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After reviewing the proposed changes to the I-765, there seems to be information requested that is confusing, unnecessary, and redundant. Please see below for my comments.
Part 2. Information About You
Part 3. Biographic Information This information seems unnecessary as it will not be available on the EAD. This type of biographic information is not relevant to an applicant’s eligibility for OPT.
Thank you for reviewing my comments!
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Response: Thank you for your comment. Some of the issues you raise are addressed above.
The Alien Registration Number and I-94 Number fields have been separated to ensure that an EAD is not issued under an incorrect number.
USCIS is not making any changes to the Mother’s Name and Father’s Name fields at this time.
USCIS has changed Item Number 17. to “Gender” and removed Item Numbers requesting information about prior Form I-765 filings.
Item Numbers 21.b. – 21.e. and 26. provide information necessary for USCIS adjudication officers to verify identify, determine eligibility for employment authorization and issuance of an EAD, and make an informed decision. USCIS adjudication officers use both responses to questions on the form and evidence to make determinations.
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Comment 23. |
Commenter: Andrew Shiotani
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I am a Designated School Official / Alternate Responsible Officer
for the University of Oregon. Our primary use of Form I-765 is for
F-1 students applying for post-completion Optional Practical
Training (c03b), the 24-month STEM extension of Optional Practical
Training (c03c), and in rarer cases, pre-completion Optional
Practical Training and F-1 Severe Economic Hardship
employment.
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Response: Thank you for your comment. The issues you raise are addressed above.
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Comment 24. |
Commenter: Alison Champeaux, College of St. Scholastica
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The new I-765 is cumbersome and has a significant increase in the amount of data being gathered on students that is already provided through SEVIS, CBP in I-94 records and available through SSA. The biographic information is unnecessary and has no bearing on their eligibility to receive work permission and is a disturbing trend in requirements for applying for a benefit students are eligible for. |
Response: Thank you for your comment. DHS/USCIS may not have access to systems managed by other Federal government agencies. Information requested from applicants on USCIS’s forms is necessary for USCIS to verify identity and make informed decisions on applications.
USCIS has removed Part 3. Biographic Information from this revision of Form I-765.
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Comment 25. |
Commenter: Rakia Johnson (2nd Comment)
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In the Biographic Section, you have listed African American,
American Indian or Alaska Native, and Native Hawaiian or Other
Pacific Islander in the option for "race". It's my
understanding this form is to be used for non-immigrant, non-US
citizens who are requesting permission for employment
authorization. Yet in the question regarding "race", you
have two options listed that you do not specify as Americans. The
very fact that you have listed "American Indian or Alaska
Native", "African American" and "Native
Hawaiian or Other Pacific Islander" as options for "race"
on a form specifically for non-immigrants to apply for employment
authorization either means you do not think these Americans have
the legal right to employment in the United States as citizens of
the United States or you don't know what "race"
means. |
Response: Thank you for your comment. The issue you raise is addressed above.
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Comment 26. |
Commenter: Erik Simons
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Please expand the fields for names. It is common for international students to have long names that will not fit into these boxes. Part 3 is unnecessary, since the information collected in that part is irrelevant when determining eligibility for employment authorization. Overall, the form is too long. These changes would expand the form from 2 pages to 7 pages, leading to increased work for international students, DSOs, and USCIS adjudicators, as well as increased costs and processing times. |
Response: Thank you for your comment. The issues you raise are addressed above. |
Comment 27. |
Commenter: Cory Owen
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The Good: |
Response: Thank you for your comment. The issue you raise is addressed above.
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Comment 28. |
Commenter: Rakia Johnson
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It appears the purpose of the new I-765 form is to eliminate
having to send supporting documents or a photo since it asks for a
large amount of information that the supporting documents already
answer. If this form would like to be used in-house for those
adjudicating, that would be fine. Students, who are not required
to give biometrics, should not be asked to attest to an
appointment for biometrics. You already are unable to adjudicate
items in a timely manner, why add more work to people who have
already been vetted and endured administrative
processing? |
Response: Thank you for your comment. Some of issues you raise are addressed above.
Information requested on Form I-765 is used by USCIS adjudication officers to verify identify, determine eligibility for employment authorization and issuance of an EAD, and make an informed decision. USCIS adjudication officers use both responses to questions on the form and evidence to make determinations.
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Comment 29. |
Commenter: David Zaret |
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On behalf of Indiana University, I write in response to the USCIS adjustments to Form I-765 “Application for Employment Authorization.” Indiana University enrolls more than 114,000 students on its eight campuses: the flagship campus in Bloomington, which is a residential campus; an urban campus in Indianapolis, which also includes the IU Medical Center; and six regional campuses in the Indiana cities of Gary, South Bend, Fort Wayne, Kokomo, Richmond, and New Albany. The University offers 1,124 degree programs, has more than 250 research centers and institutes, and employs more than 20,000 faculty, professional, and support staff. Internationally known for the quality of its academic programs and strong international student and scholar support services, Indiana University enrolls more than 8,500 international students, and also processes immigrant and non-immigrant work petitions for international faculty, researchers, physicians and support staff and obtain J-1 waivers through the Conrad 30 program. While we appreciate the effort by USCIS to combine work authorization with a Social Security application, the result has produced a form that is over-burdensome and complicated. To go from a one-page form to a seven-page form, especially when much of the information requested is already recorded in USCIS or SEVP systems and is easily accessible to adjudicators, is not necessary. More specific comments and suggestions are outlined below.
Instructions:
Application Form Part 1. Reason for Applying:
Part 2. Information About You:
Part 3. Biographic Information: If this section is for the SSN application, it should be made optional and not required for those applicants who do not need a new SSN at the time of I-765 application.
Part 4. Applicant’s Statement, Contact Information, Declaration, Certification, and Signature: Much of the information here could be covered in the instructions attached to this document, or reflected by the completion of other sections (specifically the questions related to an interpreter or preparer). Contact information could be included in Part 2, leaving only the signature line as part of this section.
Part 7. Additional Information: We appreciate the separate page for additional information.
In general, this form is asking applicants to reiterate or, in some cases, resubmit information that has either been previously vetted as part of another application, or is readily available in the applicant’s record. Examples include asking students to submit evidence that documents DOE accreditation and certification by SEVP. The institution is issuing the I-20 and has already established accreditation. In question 28 in Part 2, “Information About Your Eligibility Category”, applicants are instructed to “Include evidence that the degree that is the basis for the current OPT is in one of the degree programs currently listed on the STEM Designated Degree Program List.” Since USCIS has this information and the CIP code is actually on the I-20, what further evidence must students submit? Many parts of this form are unnecessary, redundant, create extra review time for adjudicators, and make what should be a straightforward application unduly complicated. We appreciate the intent behind combining forms and adding a new service to those applying for employment authorization and are grateful for the opportunity to comment on it. Simplification would be greatly appreciated.
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Response: Thank you for your comment. USCIS has removed several Item Numbers from this revision of Form I-765, which will shorten the form. Item Numbers relating to an applicant’s ability to request a Social Security Number and/or Social Security card are not being removed.
Instructions:
Application Form Part 1. Reason for Applying:
Part 2. Information About You:
Although USCIS has access to various systems, the burden is on the applicant to establish their eligibility. Applicants do not always submit the required evidence with the I-765. USCIS adjudicators use both responses to questions on the form and evidence to determine eligibility for employment authorization and an EAD.
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Comment 30. |
Anonymous |
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I like changes on eligibility of each type of EAD (e.g. better and
clearer explanations). That's a big improvement.
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Response: Thank you for your comment. The issue you raise is addressed above.
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Comment 31. |
Commenter: Elana Rodman
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The new requirement of having a government issued ID for certain types of EADs is a huge obstacle. Asylum seeking a who fear persecution should not be required to obtain a government issued ID from their home country. They are fleeing their home country and would be put at risk by getting a passport. Furthermore, minor children often have obstacles in getting a government issued ID without the consent of both parents. This is problematic in any context where one or both parents has been a persecuted, trafficker, or has abused, abandoned and neglected the child. There are additional obstacles for those who have been detained or placed on an order of supervision where the government ID has been confiscated and is difficult to impossible to replace. This requirement is extremely burdensome for vulnerable clients. There should be easier ways to confirm the identiity of these individuals. Finally, the determination of whether someone has a conviction which is an aggravated felony is a complex legal issue that should be resolved for a judge. |
Response: Thank you for your comment. The issues you raise are addressed above. Responses to unique issues you raise are addressed below.
USCIS adjudication officers are trained in evaluating aggravated felonies for any type of benefit request. |
Comment 32. |
Commenter: Helen Leonard
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My institution hosts over 17000 international students, many of
whom complete this form to apply for OPT and STEM OPT. The draft
of the new I 765 would make this process significantly more labor
intensive for the applicant, as well as create more administrative
burden for international student advisors. Upon review of the
draft I-765, there is information that appears to be both
redundant, unnecessary and confusing. Our institution therefore
has an interest in ensuring the form is both effective for USCIS
and not overly complicated and burdensome for applicants and staff
of our University. Overall, this form has moved from 1 page, to 2
pages to now a draft of 7 pages which is much too long. Please see
the bulleted comments are below on additional specific
items: 26) Why is the SEVIS ID on the form
when it is relevant only to F1 or M-1 applicants and F1 students
include a copy of their current sevis ID number. It should also be
recognized that the instructions on the form request prior sevis
numbers yet there is no place for prior numbers to be entered. Part 3: |
Response: Thank you for your comment. Many of the issues you raise have been addressed above. Responses to unique issues you raise are addressed below.
26) SEVIS numbers are issued by ICE/SEVP and are not always visible to USCIS adjudicators. There are times when a student is issued more than one SEVIS number and USCIS adjudicators need the numbers to search SEVIS for a full “student” history. USCIS has added language to the Instructions that prior SEVIS numbers can be provided in Part 7. Additional Information.
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Comment 33. |
Commenter: Jane Nucup
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[All red colored font and highlighting is from the commenter’s submission.]
Thank you for the opportunity to comment on the revised proposed Form I-765. As a PDSO, this is a document that F-1 students use frequently, and is key to their educational experience in the US.
Part 2. Information About You 1.a. Thirty characters might be too short for students with long last names, especially those who have multiple family names 1.b. Eighteen characters might be too short, especially for students who have multiple given names, and no middle name 1.c. This field does not accept “/” (needed since many students will indicate N/A) nor a hyphen in fillable .pdf. Same issues for questions 2 & 3. 4.a. Thank you for including a field for “In Care of Name” – this acknowledges the fact that students often move between the time of filing and the adjudication and will help ensure proper delivery of the EAD. 4.b. Could this read, “Street Number and Name or P.O. Box”?
For U.S. Physical Address, on page 2, I suggest, “U.S. Physical Address (at time of filing)” since very often students are applying while they are living on campus, but will move shortly thereafter. Continuing on page 2, second column: Since the “Father’s Name” and “Mother’s Name” is only needed if the applicant is also requesting a SSN, could this be changed to “Father’s Name (required only if applying for Social Security Number)” and “Mother’s Name (required only if applying for Social Security Number)”. This will prevent people from filling out this section who don’t really need to, since it is currently unclear that this is part of the SSN question. 17. Suggest “Gender” (which would then require more options) or “Sex Assigned at Birth” with the current Male/Female option
Page 3 22. & 23. Suggest including language about the Port of Entry (POE) since that is the entry that is documented. Otherwise, students may think this refers to their final destination.
Questions such as 30. & 31.b. do not allow applicants the option of N/A, since many applicants are not required to answer the questions, but don’t want to leave an empty question.
Part 3. Biographic Information – F-1 students do not have biometrics done for OPT petitions. Please include language that only certain categories are required to provide this information. This will prevent applicants from providing and adjudicators from reviewing unnecessary information.
Comments for draft version of instructions for proposed Form I-765 p. 3 A. Pre-Completion OPT - “Include evidence of having been lawfully enrolled on a full-time basis for one full academic year at a college, university, conservatory, or seminary approved by the U.S. Immigration and Customs Enforcement (ICE) Student and Exchange Visitor Program (SEVP) for attendance by F-1 foreign students.” Question: Could you please specify the evidence that students should provide, for example, an official transcript? However, what evidence should students provide if they are eligible to apply, but have not been in school for one academic year per the instructions, “The one full academic year need not necessarily have been completed while you were in F-1 status; if you completed the one year requirement while in a valid nonimmigrant status and you are now in valid F-1 status, you are eligible to apply for OPT”? Suggestion to clarify that the copies of the I-20 are acceptable: Also, include all previously used Student and Exchange Visitor Information System (SEVIS) numbers and evidence of any previously authorized curricular practical training (CPT) or OPT and academic level at which it was authorized. You must include a copy of the Certificate of Eligibility of Nonimmigrant (F-1) Student Status (Form I-20) endorsed by the Designated School Official (DSO) before filing Form I-765.
B. Post-Completion OPT--(c)(3)(B). File Form I-765 up to 90 days before, but no later than 60 days after, your program end date. Include all previously used SEVIS numbers and evidence of any previously authorized CPT or OPT and the academic level at which it was authorized. You must include a copy of the Form I-20 endorsed by the DSO within 30 days before filing Form I-765.
C. 24-Month Extension for STEM Students (Students With a Degree in Science, Technology, Engineering, or Mathematics)--(c)(3)(C). File Form I-765 up to 90 days before the expiration of your current OPT, but no later than 60 days after your program is complete, if you are requesting a 24-month STEM extension. Include evidence the degree that is the basis for the current OPT is in one of the degree programs currently listed on the STEM Designated Degree Program List. Additionally, submit the employer’s name as listed in E-Verify, along with the E-Verify Company Identification Number, or a valid E-Verify Client Company Identification Number for the employer with whom you are seeking the 24- month STEM OPT extension. You must provide this information in Item Numbers 28.a. - 28.c. of Form I- 765. You must include a copy of the Form I-20A-B or Form I-20D endorsed by the DSO within 60 days before filing Form I-765. NOTE: If you are applying for a STEM OPT extension based on a previously earned STEM degree, you must also include a copy of your prior STEM degree and evidence that the institution is currently accredited by the U.S. Department of Education and certified by the SEVP.
Concerning, “Include evidence the degree that is the basis for the current OPT is in one of the degree programs currently listed on the STEM Designated Degree Program List.” What qualifies as evidence? A printout of the degree as listed on the ICE website? https://www.ice.gov/sites/default/files/documents/Document/2016/stem-list.pdf
And along the same lines, respectfully, does USCIS have access to SEVP’s information that a particular school has been accredited and is certified (or is the process of recertification) by SEVP? If this information cannot be shared among the branches of DHS, then will a print-out of the website of the accrediting agency’s participating schools and a print-out of the school’s page of the I-17 suffice?
D. F-1 Student Offered Off-Campus Employment Under the Sponsorship of a Qualifying International Organization--(c)(3)(ii). File Form I-765 with the international organization’s letter of certification that the proposed employment is within the scope of its sponsorship and a copy of the SEVIS Form I-20 with the employment page completed by the DSO certifying eligibility for employment.
E. F-1 Student Seeking Off-Campus Employment Due to Severe Economic Hardship--(c)(3)(iii). File FormI-765 with a copy of the SEVIS Form I-20 that includes the employment page completed by the DSO certifying eligibility for off-campus employment due to severe economic hardship caused by unforeseen circumstances beyond your control.
Page 15 Item Numbers 1.a. - 1.c. Your Full Name. Provide your full legal name as shown on your birth certificate or legal change of name document in the spaces provided. Is it possible to include passport here? Our students usually don’t have their birth certificates on them.
Item Numbers 5. - 6.e. Physical Address. Type or print your physical address on the date of filing in the spaces provided.
Finally, thank you for taking into account the mobile situations of the applicants, especially students. I understand the desire to have one employment authorization application form, but with a 7 page application and 27 pages of instructions, I wonder if F-1 students could have a separate, shorter application? |
Response: Many of the issues you raise have been addressed above. Responses to unique issues you raise are addressed below.
USCIS is not making changes to Item Number 4.b, the Physical Address section, or the Mother’s Name/Father’s Name sections of the form at this time.
Page 3 USCIS is not making any changes to Item Number 23 at this time. Part 7. Additional Information can be used if more space or an explanation is needed.
The instructions on the form for Item numbers 30. and 31. clearly state the circumstances under which information should be provided. If these Item Numbers are left blank when there should be a response, USCIS will generally issue an RFE.
Instructions
It is the applicant’s burden to prove they are eligible for the requested benefit. USCIS leaves the type of evidence to provide to the discretion of the applicant. If insufficient evidence is provided, USCIS will generally issue an RFE.
USCIS has made the recommended edits to add “copy of the” to the instructions language.
USCIS is not adding “passport” to the full legal name instructions or making changes to the Physical Address section at this time.
This Form I-765 is used by many employment authorization categories and cannot be revised to be specific to the student OPT categories. |
Comment 34. |
Commenter: Jenna Gilbert, Human Rights First
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1. Regarding the requirement to provide a passport or US or foreign government-issued ID applies to those with asylum-pending or withholding granted (as well as SIJs, and T & U nonimmigrants); this is a major break with past practice, and huge obstacle. Asylum seekers and those with withholding in particular are fleeing persecution from their government, and cannot be expected to avail themselves of their government to seek foreign government-issued IDs. For those seeking asylum, they typically do not yet have a US government-issued ID, and therefore cannot comply.
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Response: Thank you for your comment. The issues you raise are addressed above. |
Comment 35. |
Commenter: James Kendrioski |
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Dear USCIS Official,
PART 3: Questions 1 & 2 ask for details about race which
are not usually collected for foreign nationals as these racial
categories are a social construct in the U.S. A foreign national
is not going to identify as or in some cases even understand what
these mean. For example, a Ukrainian student isnt necessarily
going to identify as WHITE, a Venezuelan wont identify as
Hispanic/Latin; a Ugandan person wont choose BLACK and a NATIVE
AMERICAN/NATIVE HAWAIIAN/AFRICAN AMERICAN is an American, so when
would they use this form? I ask that these be completely
removed. |
Response: Thank you for your comment. Some of the issues you raise are addressed above.
Although USCIS has access to various systems, the burden is on the applicant to establish their eligibility. The more systems USCIS need to check to verify information, the longer it takes to render a decision. Further, applicants don't always submit the required evidence with the I-765. USCIS adjudicators use both responses to questions on the form and evidence to determine eligibility for employment authorization and an EAD.
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Comment 36. |
Commenter: Hannah Bar- Giora, Thomas Jefferson University |
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As the PDSO at a medium-sized university in Philadelphia I have helped numerous students use Form I-765 to apply for work permission in the 18 years I have been in this position. I strongly urge you to keep this form down to 2 pages. The excessive amount of information in the new form has no bearing on the application and will add time and energy to the applicants and therefore my job as well and also to each application's processing. Not to mention money to pay the reviewers. It already take a very long time to review the I-765 and we fear this will only add more time to the process. |
Response: Thank you for your comment. The issue you raise is addressed above.
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Comment 37. |
Commenter: David Wright
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The proposed amendments to the I-765 Employment Authorization
Application form and instructions will cause problems for asylum
applicants. |
Response: Thank you for your comment. Many of the issues you raise have been addressed above.
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Comment 38. |
Commenter: Steve Springer, NAFSA: Association of International Educators
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NAFSA: Association of International Educators commends the United
States Citizenship and Immigration Services (USCIS) for its
efforts to revise Form I-765 "Application for Employment
Authorization" to streamline the process for obtaining a
Social Security number in addition to the Employment Authorization
Document. NAFSA is the world's largest association of
international education professionals with over 10,000 members,
many of whom work with international students, faculty, and
researchers who may be eligible to file Form I-765. We offer
several specific suggestions that we believe will improve the
proposed revised form. |
Response: Thank you for your comment. Many of the issues you raise have been addressed above. Responses to unique issues you raise are provided below.
USCIS Is not making any changes to the SSA fields at this time, but may take these recommendations into consideration during a future revision.
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Comment 39. |
Commenter: Phillppe Dwelshauvers
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to require a passport for applying for work permit may be very problematic for young minor children, if one of the parents lives in the home country and refuse to give the authorization for a passport |
Response: Thank you for your comment. The issue you raise is addressed above.
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Comment 40. |
Commenter: Paul Belmonte, Union County College |
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The modified I-765 has a section that is now asking for hair color and weight. I do not see why there is a need for USCIS to be asking for this information from international students on student visas. Hair color and body weight information could be used as a form of discrimination or profiling by USCIS. Those categories need to be removed from the proposed I-765. |
Response: Thank you for your comment. The issue you raise is addressed above.
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Comment 41. |
Commenter: Jean Bruggeman, Freedom Network USA |
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The Freedom Network USA (FNUSA), established in 2001, is a coalition of 51 nongovernmental organizations and individuals that provide services to, and advocate for the rights of, trafficking survivors in the United States. Our members include former prosecutors, civil attorneys, criminal attorneys, immigration attorneys, and social service providers who have assisted thousands of trafficking survivors. Together, our members provide services to over 175 trafficking survivors who are under the age of 18 each year. The children served by FNUSA members have limited resources and face formidable challenges: healing from a history of trauma, overcoming language and educational barriers, and navigating the immigration system, among others. At times, there has been a misperception that youth do not require an employment authorization document (EAD). However, for a variety of reasons, an EAD is an important asset for many young immigrants, ranging from a 5-year-old needing official identification for purposes of medical treatment, to a 20-year-old saving money for college. Some youth may seek employment authorization due to a lack of continuous, stable support. For others, accepting employment is a formative step in progressing toward adulthood. For still others, an EAD may be the sole accessible form of government-issued photo identification. For such children, an EAD plays a critical role in promoting safety, justice system participation, and economic survival. Accordingly, FNUSA has a compelling interest in a fair and efficient application and adjudication process for the EAD. FNUSA commends USCIS for working with the Social Security Administration to allow EAD applicants to request a Social Security number through the I-765 application. However, other revisions to the Form and Instructions, if implemented, are likely to be detrimental to unaccompanied children and other vulnerable applicants. Respectfully, FNUSA recommends that USCIS adopt the recommendations set forth below.
Officers Who Adjudicate EAD Applications Should Receive Training That Establishes Why an EAD is an Appropriate Benefit for an Eligible Minor As an initial matter, to avoid misperceptions about the appropriateness of an EAD for minors, it is important that adjudicators understand the range of reasons that make EAD availability crucial to minors as well as adults. Some of the reasons include the following: • An EAD is one of the few forms of government-issued photo identification available to unaccompanied children, who may need identification for medical services, for entering government buildings, or for opening a bank account. • The inability to work lawfully may render a child vulnerable to sex and labor trafficking, or expose youth to hazardous, hidden working environments. Children forced or coerced into working illegally may feel unable or ineligible to report exploitation or crimes committed against them, fearing punishment. This may cause such children to fear law enforcement and be unable to meaningfully participate in the justice system. • Further, the lack of an EAD may leave a child financially vulnerable in the event that a caregiver’s support is withdrawn, and may limit a child’s ability to separate from an unfit or even abusive caregiver. In contrast, with access to an EAD and lawful employment opportunities, a child may avoid exploitation, and previously exploited youth are positioned to report abuses to authorities. • Working lawfully allows older youth to integrate into their communities, learn vocational skills, save for future educational and professional opportunities, participate in internships and work-study programs, gain experience with planning and budgeting, and learn other skills essential to financial and emotional independence. • The opportunity to work during lengthy legal processes can promote emotional development and provide a sense of affirmation that the legal case is progressing. • With an EAD, a child may receive a Social Security number, which is necessary for completing government forms such as those for college financial aid. Given these and other factors, any inappropriate barriers in the proposed revised Form and Instructions, that may inhibit eligible minors’ access to an EAD, should be eliminated, as further discussed below.
The Revised Form Fails to Provide Appropriate Exemptions from the Requirement to Provide a Passport or Government-Issued Photo Identification. 1. Under the “Required Documentation” section of the proposed revised Instructions, only category (c)(9), Adjustment Applicants, is identified as exempt from providing: Form I-94, a passport, or other travel document. Instructions, p. 20, Item 3.A.
2. The Instructions require those who have not previously received an EAD, without exception, to submit one of the following: “a copy of a government issued identity document (such as a passport) showing your picture, name, and date of birth; a birth certificate with photo ID; a visa issued by a foreign consulate; or a national ID document with photo and/or fingerprint.” Instructions, p. 20, Item 3.B. 3. Part 2., Items 21.b. through 21.e. call for information about the applicant’s passport or travel document, without indicating that the question may be marked “none” or “not applicable” by applicants who lack such documents.
In a break with past practice, no exception is made for categories of immigrants for whom obtaining such documents is a practical impossibility. Children and youth who have fled violence, trafficking, neglect, and other harsh circumstances often have never held any government-issued identity document. Even a child who has been issued such a document may have since lost it or had it withheld by persons who exploited or maltreated the child. Under no circumstances should asylum applicants, asylees, or those granted withholding of removal or deportation be compelled to contact the government of the country of persecution to obtain a government-issued identity document. Children and youth who are eligible to apply for adjustment of status on the basis of special immigrant juvenile status (SIJS) are, by definition, abused, abandoned, neglected, or similarly maltreated by one or both of their parents. Often they cannot satisfy a foreign government’s requirement for the signature of two parents for issuance of a passport. For victims of crime or trafficking and their derivatives, government documents may be unobtainable, particularly where the trafficking or other crime was perpetrated by, or in collaboration with, foreign government officials. In fact, the EAD itself is often the only form of government-issued photo ID available to unaccompanied children, asylum applicants, and other vulnerable immigrants.
Recommendation: FNUSA recommends that the documentation requirements at Parts 3.A. and 3.B (Instructions, p. 20) provide for alternative responses for the following categories of EAD applicants: (c)(8) Pending Asylum and Withholding of Removal; (a)(10) Granted Withholding of Deportation or Removal; (a)(16) and (c)(25) T Nonimmigrant categories; (a)(19) and (a)(20) U Nonimmigrant categories; and, in the case of Part B., (c)(9) Adjustment Applicants who apply on the basis of SIJS. Instead of an absolute requirement to produce documents on a limited list, applicants in these categories should be allowed to provide other evidence of their identity and avoid being excluded from an essential benefit. Similarly, Form items 21.b. through 21.e. should be annotated “if any,” to indicate that the requested data (passport number, etc.) is requested if available, but is not absolutely required. In addition, question 20.b., “Which USCIS office adjudicated your Form I-765?” should be eliminated, as the information it calls for will be unknowable for many applicants, yet should be readily accessible to USCIS.
Questions and Documentation Requirements Pertaining to Arrests and Criminal Convictions, Directed Solely to Applicants With Pending Asylum or Withholding, Should be Eliminated. 1. Proposed Form I-765, Question 30, is directed solely to applicants in the (c)(8) eligibility category, Pending Asylum or Withholding of Deportation or Removal. It asks, “have you EVER been arrested for and/or convicted of any crime?” Form, p. 3. 2. Similarly, in the revised Instructions, “Special Filing Instructions for Those With Pending Asylum Applications – (c)(8)” provides as follows: “Proof of Arrests and Conviction. For initial and renewal applications, you must submit proof of any arrests and/or convictions. If you have been convicted of an aggravated felony, you 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. You must, however, 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. NOTE: USCIS may, in its discretion, deny your application if you have been arrested and/or convicted of any crime.” Instructions, p. 21
Persons who meet the stringent standards for asylum or withholding are, by definition, victims of persecution and other horrendous conduct. Applicants for such relief have long been extended the benefit of an EAD so that they may work to support themselves and their families during the often long periods required for adjudication of such applications. An arrest does not inevitably result in a conviction, or even a charge. Charges, if lodged, are often downgraded to less serious charges at a later stage of the process; accordingly, arrest information typically presents an incomplete or inaccurate picture. Many arrests, particularly those of juveniles, are not associated with any crime at all. Moreover, the phrase “any crime” is far broader than the category of convictions that may result in statutory ineligibility for asylum. The denial of an EAD for conduct that would not result in the denial of asylum or withholding is counterproductive, since a person eligible for the protection of the United States government would thereby be stripped of the ability to support himself or herself, and to present government identification. The evaluation of whether a conviction is incompatible with a grant of asylum or withholding is an ultimate question for the adjudicator of that application. It undermines due process to pretermit or prejudice that adjudication by making police records a part of the EAD evaluation, which will often be cursory and based on incomplete or premature information.
Recommendation: FNUSA recommends that Question 30 be eliminated from the revised Form I-765, along with the entirety of Instruction number 6 on page 21 of the revised Instructions.
The Safe Mailing Address Option Needs Greater Visibility and Broader Availability 1. On proposed revised Form I-765, Part 2, Items 4.a. through 6.e. call for both the mailing address and physical address of the applicant, without indicating any option to substitute a “safe address” for applicants whose safety or application progress could be jeopardized by receiving mail. 2. Only on page 15 of the Instructions is that option disclosed, but it is limited to those with approved VAWA petitions or T or U Nonimmigrant applications.
Recommendation: The option to use a safe mailing address should be extended not just to those with approved VAWA or T or U Nonimmigrant applications, but to any EAD applicant who has reason to be concerned for safety. The availability of the option should be clearly noted at the start of Item 4 on the Form, with a reference to where to find more detail in the Instructions.
FNUSA recognizes the importance of a fair and efficient adjudication process for applications including Form I-765. We believe that the recommended changes will help to ensure that the process better accounts for the particular circumstances of unaccompanied children and other vulnerable immigrants. I can be reached at jean@freedomnetworkusa.org if you have any questions or need any further information or explanation |
Response: Thank you for your comment. Many of the issues you raise have been addressed above. Responses to unique issues you raise are addressed below.
USCIS has been issuing EADs for minor applicants for many years. There has been no change to this policy.
Follow the instructions for using N/A (none) when the question is not applicable.
USCIS will not make any changes to Item Number 30 or page 6 of the Instructions at this time. This question is part of the eligibility determination.
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Comment 42. |
Commenter: Stephen Yale-Loehr
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I am concerned about the proposed changes to the I-765 Employment
Authorization form and instructions that would affect asylum
seekers. First, there would be a requirement to provide a passport
or US or foreign government-issued ID, which now applies to those
with asylum pending or withholding granted (as well as to SIJ, T
and U nonimmigrants). This is problematic for asylum seekers, in
particular, or those fleeing persecution (who are also granted
withholding) because often asylum seekers have left their
identifying documentation behind or it has been destroyed or
stolen en route. Further, replacing these documents may put an
asylum seeker at risk if they approach their home government, or
at risk of later being accused of "reavailment" by the
U.S. government. |
Response: Thank you for your comment. The issues you raise are addressed above.
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Comment 43. |
Commenter: Geri Greenspan
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I object to some of the proposed changes to the I-765 Application
for Employment Authorization form and instructions, especially as
they relate to and affect asylum seekers and applicants for SIJ,
T, and U nonimmigrant status. |
Response: Thank you for your comment. The issues you raise are addressed above.
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Comment 44. |
Commenter: Toni Maschler |
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The proposed amendments to the I-765 Employment Authorization form
and instructions will adversely affect asylum seekers, as well as
SIJ, T, and U nonimmigrants. Arrest and/or conviction records are also problematic. USCIS is
proposing to evaluate the arrest records to adjudicate whether or
not someone has been convicted of an aggravated felony. This legal
determination is best made by an asylum officer or immigration
judge. It is inefficient for this adjudication to occur twice, and
this will lead to unnecessary litigation. Asylum seekers will be
forced to challenge work authorization denials based on any USCIS
aggravated felony determination in APA actions in Federal District
Court, as their hearings before the asylum office or Immigration
Judge may be delayed for years. Because District Court rulings
would have a preclusive effect on asylum officer and Immigration
Judge decisions, the new requirements could create a parallel
track of litigation, with the asylum merits being heard by an
asylum officer or immigration judge, and the criminal issues being
heard separately in the Federal Courts even prior to a decision on
asylum. Further, denying someone with criminal charges or
convictions the right to lawfully work may actually have a
negative effect of drawing them, with no legal means to support
themselves, into abusive situations or work environments, or into
potentially criminal situations. For those with even minor
offenses, this new requirement will cause even further delays in
the already backlogged work authorization queue. The legal
determination of the immigration consequences of convictions
should remain with the asylum office and the immigration judges
for adjudication. |
Response: Thank you for your comment. The issues you raise have been addressed above.
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Comment 45. |
Commenter: David Gonzales on behalf of the Immigration Section of the University of Iowa Legal Clinic
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On October 13, 2017, the United States Customs and Immigration Service ("USCIS") issued a notice in the Federal Register of an intent to alter the information collected by USCIS on Form I-765, the Application for Employment Authorization. USCIS requested written comments and suggestions about the changes to the form addressing one of four points. First, whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility. Second, the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used. Third, enhancing the quality, utility, and clarity of the information to be collected. Finally, minimizing the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Following a review of the proposed changes to 1-765 the immigration section of the University of Iowa Legal Clinic respectfully submits the following comment on the proposed changes to the form. The comments address each of the four areas of concern li s ted in the USCIS notice.
The proposed change to the 1-765 work authorization is an ultra vires attempt to increase the amount of information collected by USCIS on a standard form for work authorization. The proposed additional information to be collected does not bear on the determination of USCIS regarding the eligibility of an applicant to receive work authorization within the United States. Further, collections of interpreter information will act as a deterrent to individuals willing to assist in the completion of required USCIS forms.
The attempted collect ion of additional data of both immigrants app lying for work authorization and private citizens working with them to complete a n exceedingly expanded form could lead to litigation for the unauthorized collection of data. Those filings will lead to additional cost far in excess of the already excessive proposed $649, I 07,900 cost currently projected in the filing. USCIS should abandon the proposed changes and either retain the current I-765 form or, better, pare down the current form by should also eliminating previously added questions that do not bear on work authorization eligibility.
I. Adding "Biographic Information" to Form I-765 is an Unnecessary and Irrelevant Addition to Information Collected by USCIS
USCIS states in their filing material s that additional information will be collected if the New Form I-765 is approved. See Table of Changes Form 1-765. The listed additions to the data collected includes a new part titled "Biographic Information." The "Biographic Information" questions ask for the applicant's race, ethnicity, height, weight, eye color, and hair color. This data is not relevant for a determination of work eligibility which is strictly determined by the applicant's immigration status as defined in 8 C.F.R. §274a.12.
The work eligibility of an applicant is determined by an individual determination of whether the applicant is within one of the classes of aliens authorized to accept employment as defined in 8 C.F.R. § 274a.l2. The entirety of Part 3 of the new form I-765 has no bearing on the work eligibility of an applicant. No work eligibility information is gained by gathering racial and ethnicity data from applicants. No work eligibility information is gained by gathering height and weight information from applicants. No work eligibility information is gained by gathering eye and hair color information from applicants. Furthermore, the department gathers this information after a grant of work authorization and subsequent biometrics appointment at the USCIS office.
Question 17 requests the "sex" of the applicant. This is a regression to an outdated term that was previously updated to "gender" on the currently used I-765. The two terms are not interchangeable and could lead to confusion on how to answer this question by transgender immigrants, including those seeking asylum due to persecution in their home country on the basis of their gender identity. A possible alternative is a two-step approach to identifying gender asking first "what gender were you assigned at birth," and second "what is your current gender identity."
The entirety of Biographic Information in the new form I-765 has no bearing on the work eligibility of an applicant. All the information contained in Biographic Information is adequately supplied by a follow up biometrics appointment required by USCIS. The new section of "Biographic Information" on the proposed Form I-765 should be stricken.
II. Form 1-765 Can Be Streamlined by Elimination of Additional Unnecessary and Overly Burdensome Questions
Questions regarding Social Security Numbers or requests for a Social Security card are unnecessary on Form 1-765. The list of acceptable documents employers are required to review before employment includes an Employment Authorization Document that contains a photograph as a document that establishes both Identity and Employment Authorization. No Social Security Card is needed by the employee for the employer to complete the required I-9 Form.
Question 10, which also appears on the current version of Form I-765 allows the applicant to request a social security card is unnecessary to prove work authorization. It also allows the applicant to release information provided to the Social Security Administration ("SSA") "as required for the purpose of assigning me an SSN and issuing me a Social Security card." The definition of "required" is unclear. For example, the applicant's information may be compared to current SSA databases and used in any investigation of inconsistencies. An affirmative response to this question by an applicant who does not obtain work authorization could be used by the Department of Justice in an attempt to charge the applicant with Social Security fraud leading to deportability even for applicants who have no intent to seek a social security number without authorization to do so.
Part 2 Question 20 requests several pieces of information from the applicant about their most recently filed I-765." Parts b and c are confusing. Part b asks "Which USCIS office adjudicated your Form I-765. This information is supplied by the Receipt Number requested in Question 20a. Part c requests the date the previous I-765 was adjudicated. An applicant will search their I-797 receipt in vain to find this information. The prompt for Part c should be changed to "Notice Date", a field listed clearly on the I-797 to avoid confusion for the applicant.
The added length and complexity of the form make the potential cost to the applicant overly burdensome. Due to the new length of the form, 7 pages, many applicants may be unable to complete the form without the assistance of an attorney. By using the department's own projections of 2,135,224 applicants and a preparation time projection of 4.5 hours per response this form will require over 9.5 million billable hours by attorneys at a modest cost of $1.9 billion (assuming a modest rate of $200 per hour). Even if no counsel is sought, 4.5 hours is overly burdensome for an individual applicant.
III. The Requirement for Interpreters and Others Assisting in Completing Form 1-765 Will Have a Deterrent Effect Interpreters and Preparers
The form collects information not just from the applicant, but also from private citizens who assist the applicant in completing the application. For example, interpreters assisting applicants with the form will be required to turn over private information such as their mailing address and telephone numbers for contact information. Additionally, instead of limiting the collection of information of a preparer to attorneys required to file a G-28 in addition to the I-765, the new form will require reporting of information by any private citizen assisting with the completion of the form.
Forcing interpreters and private individuals assisting applicants complete an overly complicated form to submit their addresses and phone numbers is unnecessary. The name, address, and phone number of an interpreter is not relevant to the applicant's eligibility to obtain a work authorization document. There is no need to gather information from a non-attorney preparer of an I-765. Indeed, doing so may have a chilling effect on potential interpreters who are unsure of their own immigration status and may be wary of identifying themselves to DHS. Additionally, any attorney preparing the form will be required to submit an accompanying G -28. The language of Part 6 Question 7.b. is misleading in the responsibilities of an attorney preparing an I-765.
The collection of personal information from an interpreter or private individual assisting in the completion of Form I-765 is not relevant to the determination of the applicant's qualification to receive an EAD. Contact information for an attorney representing the applicant is obtained through the concurrent filing of a Form G -28 negating the need for the information to be provided on the I-765.
Determination of qualification for work authorization through a submitted I-765 is based on the applicant's classification under 8 C.F.R. § 274a.12. If an applicant fits into one of the classifications authorized to obtain an EAD listed in the regulation, the applicant will receive be approved. If the applicant does not qualify, then the EAD request is denied. The fact that a translator was used and the personal information of that translator is not relevant. The personal information of a preparer filling in the questions of the I-765 in order to make the form more legible for USCIS agents is not relevant to the determination of the applicant's work authorization qualifications.
The regulatory filing increasing the amount of questions asked on the proposed I-765 does not address the extent to which the information is used. Information such as name, address, and phone number of interpreters allows USCIS to create a database of individuals willing to help immigrants with filing documents. There is nothing in the proposed filing that gives information about if or how USCIS will later share information with other governmental organizations such as Customs and Border Patrol (CBP) or Immigration and Customs Enforcement (ICE). The possible sharing of this information with other organizations is likely to shrink the amount of individuals willing to help translate forms.
Requesting an unnecessary amount of personal information about translators for the I-765 without clear definition for use presents the risk of the USCIS compiling a "translators list" complete with contact information that it would then be able to share with sister agencies without limit. The possibility translators placed on a list due to association with immigrants will likely decrease the amount of individuals willing to assist in translation. The message sent by USCIS in gathering this information is that association and assistance of immigrants seeking a benefit from the United States government will submit the translator to some type of monitoring by the government in violation of the translator's First Amendment right of association. Parts 5 and 6 of the proposed I-765 should be stricken in their entirety.
IV. Providing Unnecessary Information Increases the Possibility of Personal Bias by Individual USCIS Agents
The additional questions give an administrator access to a wealth of information that is not relevant to their individual decision based on the applicant's categorization under 8 C.F.R. §274a.12. By collecting this information and providing it to individual decision makers, it allows personal bias towards a particular race or ethnicity to create inconsistencies within their determinations that would not be possible in the absence of the newly requested information.
An individual agent may have a preconceived notion about whether an applicant for work authorization should possess fluency in English. This bias can manifest in several different says with differing outcomes. For an agent who believes that English fluency is required, in spite of the lack of fluency requirement under 8 C.F.R. § 274a.12, they may incorrectly deny a request for work authorization inconsistent with stated department policies.
The classifications described in 8 C.F.R. § 754a.2 do not include a requirement that the applicant be fluent in English. By gathering information on whether an interpreter assisted in completing the form, the department is gathering data irrelevant to its determination. Furthermore, the fact that an interpreter assisted completion of the form does not give information on English fluency. It is possible the applicant used an interpreter for convenience rather than necessity. The forms extraordinary length would discourage an applicant from attempting to translate for themselves unfamiliar terms such as abbreviations and English weights and measures. As mentioned above this would only add additional time to complete an already onerous form adding additional cost to the applicant.
The applicant may have used an interpreter out of convenience in spite of being fluent in English. If that applicant using an interpreter for convenience is denied it provides a result not only inconsistent with stated policy, but based on an incorrect assumption of an individual agent. By removing the questions requesting information irrelevant to the work authorization requirements it provides clear guidance to individual agents supporting consistent results for similarly situated applicants.
Due to the risk of an increased amount of subjective determinations by USC IS agents, the questions added to the proposed I-765 should be abandoned in their entirety.
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Response: Thank you for your comment. Many of the issues you raise have been addressed above. Responses to unique issues you raise are provided below.
USCIS is providing notice to the public and an opportunity to comment on the changes to this collection of information in accordance with the Paperwork Reduction Act and 5 CFR 1320. Information gathered in Form I-765 is covered by Systems of Records Notices issued by both the Social Security Administration and USCIS, as well as Privacy Impact Assessments issued by USCIS.
USCIS is not making any changes to the SSN section of the form at this time. This collection of information is covered by Systems of Records Notices issued by both the Social Security Administration and USCIS, as well as Privacy Impact Assessments issued by USCIS.
Thank you for your comment regarding the time burden for this information collection. USCIS believes 4.5 hours is a reasonable estimate for the time it may take an applicant to review instructions, fill out the form, and gather required evidence. USCIS reevaluates time burden estimates for each PRA package, so this estimate may change in the future.
Information about preparers and interpreters is collected on most USCIS forms, which are covered by Privacy Impact Assessments (PIA) issued by the agency. PIAs address what personally identifiable information is being collected, why it is being collected, and how it will be collected, used, accessed, shared, safeguarded and stored.
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Comment 46. |
Commenter: Candice Marshall
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As a DSO/ARO at a small, private college, I find that there are
some good points, but also some very concerning points about this
draft of the I-765.
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Response: Thank you for your comment. The issues you raise are addressed above.
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Comment 47. |
Commenter: Elizabeth Balck Monsma
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I have represented asylum seekers, SIJ, U and T nonimmigrant
clients for over 8 years. There are already several barriers for
these vulnerable populations to secure employment authorization.
It seems ludicrous to add even more barriers as this proposed
amendment would do. |
Response: Thank you for your comment. The issues you raise have been addressed above.
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Comment 48. |
Commenter: Cory Smith, Kids in Need of Defense (KIND)
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Kids in Need of Defense (KIND) appreciates the opportunity to comment on the United States Citizenship and Immigration Services’ (USCIS) proposed revision of the Application for Employment Authorization, Form I-765 (the “Form”), and related instructions (the “Instructions”), as announced in the Federal Register under Docket ID Number USCIS-2005- 0035, OMB Control Number 1615-0040. KIND is a national nonprofit organization dedicated to providing free legal representation and protection to unaccompanied immigrant and refugee children in removal proceedings. Since January 2009, KIND has received referrals for over 15,300 children from 70 countries, and has trained more than 24,000 attorneys to represent such children. KIND has field offices in ten cities: Los Angeles, San Francisco, Atlanta, Baltimore, Boston, Houston, Newark, New York City, Seattle, and Washington, DC.
As minors who have fled violence, persecution, and other unsafe situations, the children served by KIND arrive in the U.S. with limited resources, and face formidable challenges: healing from a history of trauma, overcoming language and educational barriers, and navigating the immigration system, among others. At times, there has been a misperception that unaccompanied children do not require an employment authorization document (EAD) due to the support of responsible adults during the children’s formative years. However, for a variety of reasons, an EAD is an important asset for many young immigrants, ranging from a 5-year-old needing official identification for purposes of medical treatment, to a 20-year-old saving money for college. Some youth may seek employment authorization due to a lack of continuous, stable support. For others, accepting employment is a formative step in progressing toward adulthood. For still others, an EAD may be the sole accessible form of government-issued photo identification. For such children, an EAD plays a critical role in promoting safety, justice system participation, and economic survival. Accordingly, KIND has a compelling interest in a fair and efficient application and adjudication process for the EAD.
KIND commends USCIS for working with the Social Security Administration to allow EAD applicants to request a Social Security number through the I-765 application. However, other revisions to the Form and Instructions, if implemented, are likely to be detrimental to unaccompanied children and other vulnerable applicants. Respectfully, KIND recommends that USCIS adopt the recommendations set forth below.
A. Officers Who Adjudicate EAD Applications Should Receive Training That Establishes Why an EAD is an Appropriate Benefit for an Eligible Minor As an initial matter, to avoid misperceptions about the appropriateness of an EAD for unaccompanied minors, it is important that adjudicators be trained to understand the range of reasons that make EAD availability crucial to minors as well as adults. Some of the reasons include the following: An EAD is one of the few forms of government-issued photo identification available to unaccompanied children, who may need identification for medical services, for entering government buildings, or for opening a bank account. The inability to work lawfully may render a child vulnerable to sex and labor trafficking, or expose youth to hazardous, hidden working environments. Children forced or coerced into working illegally may feel unable or ineligible to report exploitation or crimes committed against them, fearing punishment. This may cause such children to fear law enforcement and be unable to meaningfully participate in the justice system. Further, the lack of an EAD may leave a child financially vulnerable in the event that a caregiver’s support is withdrawn, and may limit a child’s ability to separate from an unfit or even abusive caregiver. In contrast, with access to an EAD and lawful employment opportunities, a child may avoid exploitation, and previously exploited youth are positioned to report abuses to authorities. Working lawfully allows older youth to integrate into their communities, learn vocational skills, save for future educational and professional opportunities, participate in internships and work-study programs, gain experience with planning and budgeting, and learn other skills essential to financial and emotional independence. The opportunity to work during lengthy legal processes can promote emotional development and provide a sense of affirmation that the legal case is progressing. With an EAD, a child may receive a Social Security number, which is necessary for completing government forms such as those for college financial aid.
Given these and other factors, any inappropriate barriers in the proposed revised Form and Instructions, that may inhibit eligible minors’ access to an EAD, should be eliminated, as further discussed below.
B. The Revised Form Fails to Provide Appropriate Exemptions from the Requirement to Provide a Passport or Government-Issued Photo Identification Under the “Required Documentation” section of the proposed revised Instructions, only category (c)(9), Adjustment Applicants, is exempt from the requirement to support Form I- 765 with a copy of one of the following documents: Form I-94, a passport, or other travel document. Instructions, p. 20, Item 3.A. Moreover, the Instructions require those who have not previously received an EAD, without exception, to submit one of the following: “a copy of a government-issued identity document (such as a passport) showing your picture, name, and date of birth; a birth certificate with photo ID; a visa issued by a foreign consulate; or a national ID document with photo and/or fingerprint.”
Instructions, p. 20, Item 3.B. Similarly, proposed revised Form I-765, Part 2., Items 21.b. through 21.e. call for information about the applicant’s passport or travel document, without indicating that the question may be marked “none” or “not applicable” by applicants who lack such documents. In a break with past practice, no exception is made for categories of immigrants for whom obtaining such documents is a practical impossibility. Children and youth who have fled violence, trafficking, neglect, or other harsh circumstances often have never held any government-issued identity document. Even a child who has been issued such a document may have since lost it or had it withheld by persons who exploited or maltreated the child. Under no circumstances should asylum applicants, asylees, or those granted withholding of removal or deportation be compelled to contact the government of the country of persecution to obtain a government issued identity document. Children and youth who are eligible to apply for adjustment of status on the basis of special immigrant juvenile status (SIJS) are, by definition, abused, abandoned, neglected, or similarly maltreated by one or both of their parents. Often they cannot satisfy a foreign government’s requirement for the signature of two parents for issuance of a passport. For victims of crime or trafficking and their derivatives, government documents may be unobtainable, particularly where the trafficking or other crime was perpetrated by foreign government officials. In fact, the EAD itself is often the only form of government-issued photo ID available to unaccompanied children, asylum applicants, and other vulnerable immigrants.
Recommendation: KIND recommends that the documentation requirements at Parts 3.A. and 3.B (Instructions, p. 20) be relaxed for the following categories of EAD applicants: (c)(8) Pending Asylum and Withholding of Removal; (a)(10) Granted Withholding of Deportation or Removal; (a)(16) and (c)(25) T Nonimmigrant categories; (a)(19) and (a)(20) U Nonimmigrant categories; and, in the case of Part B., (c)(9) Adjustment Applicants who apply on the basis of SIJS. Instead of an absolute requirement to produce documents on a limited list, a more flexible standard would allow applicants in these categories to provide other evidence of their identity and avoid being excluded from an essential benefit. Similarly, Form items 21.b. through 21.e. should be annotated “if any,” to indicate that the requested data (passport number, etc.) is requested if available, but is not absolutely required. In addition, question 20.b., “Which USCIS office adjudicated your Form I-765?” should be eliminated, as the information it calls for will be unknowable for many applicants, yet should be readily accessible to USCIS.
C. Questions and Documentation Requirements Pertaining to Arrests and Criminal Convictions, Directed to Applicants With Pending Asylum or Withholding, Should be Eliminated Proposed Form I-765, Question 30, is directed solely to applicants in the (c)(8) eligibility category, Pending Asylum or Withholding of Deportation or Removal. It asks, “have you EVER been arrested for and/or convicted of any crime?” Form, p. 3. Similarly, in the revised Instructions, “Special Filing Instructions for Those With Pending Asylum Applications – (c)(8)” provides as follows: “Proof of Arrests and Conviction. For initial and renewal applications, you must submit proof of any arrests and/or convictions. If you have been convicted of an aggravated felony, you 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. You must, however, 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. NOTE: USCIS may, in its discretion, deny your application if you have been arrested and/or convicted of any crime.” Instructions, p. 21.
Persons who meet the stringent standards for asylum or withholding are, by definition, victims of persecution and other horrendous conduct. Applicants for such relief have long been extended the benefit of an EAD so that they may work to support themselves and their families during the often long periods required for adjudication of such applications. An arrest does not inevitably result in a conviction, or even a charge. Charges, if lodged, are often downgraded to less serious charges at a later stage of the process; accordingly, arrest information typically presents an incomplete or inaccurate picture. Many arrests, particularly those of juveniles, are not associated with any crime at all. Moreover, the phrase “any crime” is far broader than the category of convictions that may result in statutory ineligibility for asylum. The denial of an EAD for conduct that would not result in the denial of asylum or withholding is counterproductive, since a person eligible for the protection of the United States government would thereby be stripped of the ability to support himself or herself, and to present government identification. The evaluation of whether a conviction is incompatible with a grant of asylum or withholding is an ultimate question for the adjudicator of that application. It undermines due process to pretermit or prejudice that adjudication by making police records a part of the EAD evaluation, which will often be cursory and based on incomplete or premature information.
Recommendation: KIND recommends that Question 30 be eliminated from the revised Form I- 765, along with the entirety of Instruction number 6 on page 21 of the revised Instructions.
D. The Safe Mailing Address Option Needs Greater Visibility and Broader Availability On proposed revised Form I-765, Part 2, Items 4.a. through 6.e. call for both the mailing address and physical address of the applicant, without indicating any option to substitute a “safe address” for applicants whose safety or application progress could be jeopardized by receiving mail. Only on page 15 of the Instructions is that option disclosed, but it is limited to those with approved VAWA petitions or T or U Nonimmigrant applications.
Recommendation: The option to use a safe mailing address should be extended not just to those with approved VAWA or T or U Nonimmigrant applications, but to any EAD applicant who has reason to be concerned for safety. The availability of the option should be clearly noted at the start of Item 4 on the Form, with a reference to where to find more detail in the Instructions.
KIND recognizes the importance of a fair and efficient adjudication process for applications including Form I-765. We believe that the recommended changes will help to ensure that the process better accounts for the particular circumstances of unaccompanied children and other vulnerable immigrants. I can be reached at csmith@supportkind.org or (202) 361-1442 if you have any questions or need any further information or explanation. |
Response: Thank you for your comment. Many of the issues you raise have been addressed above. Responses to unique issues you raise are provided below.
USCIS has been issuing EADs for minor applicants for many years. There has been no change to this policy.
Instructions Follow the Specific Instructions for using N/A (none) when the question is not applicable.
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Comment 49. |
Commenter: Jessica Swensen |
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I am an immigration attorney who has represented dozens of asylum
seekers, among others, in their applications for work
authorization. I am very concerned about the amendments to the
I-765 Employment Authorization form and instructions. |
Response: Thank you for your comment. The issues you raise have been addressed above.
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Comment 50. |
Commenter: Oliva Kilbride, The Office of International Services at Johns Hopkins University
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Thank you for the opportunity to comment on the proposed revisions to the I-765 form. We are from the Office of International Services at Johns Hopkins University, working with over 5,000 students and scholars from over 70 countries at 5 different campuses. The Form I-765 is something we are all very familiar with through OPT for F-1 students and work authorization for J-2 dependents and others.
Comments: In general, the form is too long. It is difficult to comprehend the need to increase the form from two to seven pages. There are a substantial number of questions or sections that may not be applicable to large groups of applicants, in addition to the vaguely worded or seemingly unnecessary questions, which could very likely cause confusion and that confusion will result in incomplete and/or incorrect applications. Please reconsider the necessity for this extraordinary expansion of a form that has, for the most part, been adequate and worked quite well for applicants up to now. On a positive note, we appreciate the changes to the name fields and mailing address. Breaking up the name fields for applicants with longer names is a much-needed addition and better embraces the nature of many naming conventions around the world. Also, including an “in care of” option within the mailing address section should eliminate many of the undeliverable EADs, saving time, money, and aggravation for applicants and USCIS. Suggested revisions in order of appearance on the draft I-765: The second box on the first page needs a clarification. Is this required for everyone or only the attorney representing an applicant? A format similar to the box above, which says “For USCIS use only”, would help clarify that; i.e., “For attorney use only” or “Completed by all applicants.” Part 1 • 1.b. – Suggest the “NOTE” be removed and put in the instructions or possibly as a footnote at the end of the form. It clutters the form, adding confusion instead of clarification. Adding ‘see ‘Replacement for Card Error’ in the ‘What is the Filing Fee’ section of the instructions would be much cleaner • 1.c. – Should this be ‘Renewal and/or extension’ instead of just ‘renewal’?
Part 2 • 20.d. – add option for ‘withdrawn’, since withdrawing an application is a legitimate action that is not covered by either ‘approved’ or ‘denied’
• 21.c. – add ‘if any’ – just listing the travel document leads visitors to believe they should have one, and causes confusion
• 28.a - Please specify if you want degree name, degree level, or degree CIP for the eligibility under c3c category.
Part 3 • The biographic section seems unnecessary and confusing for those applying for an employment authorization. • 2. Race – add boxes for ‘other’ or ‘mixed’ Part 4 • 1.a. – add information that 1.b. and 2 can be skipped if 1.a. is checked Part 5 • Provide information clarifying that page 5 and page 6 should be skipped if the applicant completed the form themselves. Part 6 • The "prepared by" section should also be removed because the applicant is required to include a G28 if their application was prepared by a legal entity, whereas Part 5 addresses information for a non-legal preparer. Part 7 • This should also be removed and offered as an additional page to be included only if needed. Thank you for your time and consideration of our suggested revisions. We greatly appreciate the opportunity to have our opinions considered in such matters. |
Response: Thank you for your comment. Many of the issues you raise have been addressed above. Responses to unique issues you raise are addressed below.
1.b. The NOTE is in the instructions and USCIS believes it adds clarity, as noted by other commenters.
1.c. No; the terminology used on the form for seeking another EAD under the same category after the expiration of the previous EAD is correct.
Please see the documents posted for 30-day Federal Register Notice for edits based on some of your recommendations.
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Comment 51. |
Commenter: Erin Skelly, University of California at Berkeley |
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University of California at Berkeley supports 6000+ F-1/J-1
international students and their dependents, as well as 3000+ J-1
scholars and dependents. Over 1000 F-1 students utilize the I-765
for F-1 post-completion or STEM OPT and many of our J-2 dependents
apply for employment authorization. We support students/scholars
in understanding how to properly completing the I-765, and would
like to submit the following comments based on our experience is
working with the form for F-1 OPT/STEM, and J-2 dependent
requests.
- Part 2, #5- "Current"
mailing address is confusing, especially if students want to send
to another person/address. Instead refer to "US mailing
address as listed in 4 a-f" - Part 2, 20.c: This is a very
difficult date for an applicant to ascertain. How can they confirm
the actual adjudication date of the prior I-765? It would be
better to indicate prior authorization dates, or the Receipt date.
Individuals do not always know the exact adjudication date.
- Part 2, 28.a: This section is verify vague. What is required? Major name? degree level? CIP code? Please specify or add additional boxes.
- Part 3: Why is this information being collected? This
information does not appear to apply for F-1 student or J-2
dependent categories (African American? Native American?). Please
specify if this section is required for specific application
categories. |
Response: Thank you for your comment. Many of the issues you raise have been addressed above. Responses to unique issues you raise are addressed below.
The revised form includes an “In Care Of” line in the mailing address section.
USCIS may take these recommendations into consideration during a future revision.
Part 2, 23. This question is asking for City and State. USCIS needs where the applicant entered the United States, regardless of how the applicant entered. An explanation can be provided in Part 7. Additional Information, if necessary.
Please see the documents posted for 30-day Federal Register Notice for edits based on some of your recommendations.
Signature Applicants are no longer required to sign completely inside the box. |
Comment 52. |
Commenter: Lori Walls |
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The amendments to the I-765 (Employment Authorization Form) should not be adopted! def First, asylum seekers often do not have passports--many have fled without any identity documents at all. This is also true for those with Special Immigrant Juvenile Status and for T and U visa applicants/recipients. People seeking asylum desperately need to work pending the long delays in adjudication of their cases. The Asylum Office is now interviewing applicants who filed in 2014! Prohibiting these applicants from work authorization is unconscionable. Furthermore, a question frequently asked by an Immigration Judge with regard to whether an asylum applicant as availed himself of his home country's protection is whether the applicant has a passport. Applying for work authorization should not negatively affect an asylum applicant's case. Second, CIS is proposing that asylum seekers be required to submit arrest and conviction records. USCIS is proposing to evaluate the records to determine whether the applicant has been convicted of an aggravated felony. This legal determination is complex, the case law in this area changes constantly, and this decision should not be made by a CIS officer before the applicant's asylum case is adjudicated. Further, asylum seekers who are denied based on such a determination will have to challenge the decision in Federal District Court, creating a mountain of needless litigation. |
Response: Thank you for your comment. The issues you raise are addressed above.
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Comment 53. |
Commenter: Kimberly Jordan |
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I am concerned about the amendments to the I-765 Employment Authorization form and instructions that affect special immigrant juveniles. First, there is now a requirement to provide a passport or US or foreign government issued ID, which now applies to those with SIJ pending. This is problematic for children, in particular, because often children do not have their identifying documentation from their home country and they are not able to get a US government issued ID without an approved immigration petition.
Additionally, the option to use a safe mailing address needs to be properly highlighted in the instructions and should be provided for SIJ and asylum applicants as well as individuals granted withholding of removal, in addition to VAWA, U and T applicants. |
Response: Thank you for your comment. The issues you raise are addressed above.
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Comment 54. |
Commenter: Erika Kreider |
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The requirement to provide a passport or government-issued ID may be impossible for many asylum seekers. They may never have had a passport. The government may be unwilling to issue such a document. And/or previously-obtained government-issued ID documents may have been lost or stolen. Usually an EAD is the first government-issued ID document many asylum seekers can get. Delaying and denying an EAD because an individual cannot get a passport/government-issued document will cause an asylum seeker and his/her family great harm, and burden an already strained social service providers.
Attempting to obtain documents may well put an asylum seeker at risk if he/she approaches their home government--advising that government of their whereabouts, of course. Asylum seekers could also be accused (by the US government) of reavailing themselves of the protection of their home government by the very act of soliciting a passport--thereby destroying a perfectly valid asylum case. Asylees should not be placed at greater risk when they decide to seek a work permit, nor should they be forced to make a Hobson's Choice between self-support and risk to themselves.
It makes no sense for persons other than the IJ to make a determination whether a crime is an aggravated felony. The IJ makes that decision based on the record. If EAD officers make routine decisions on whether something constitutes an aggravated felony, it will signifcantly delay the adjudication process. It would also creaste a simultaneous and legally confusing 2-track process (District Court/EOIR) for challenging aggravated felony findings.
Denying an asylee the right to work could also make applicants particularly vulnerable to abusive home situations, as well as to abusive employment situations.
For all these reasons, the legal determination of the consequences of any convictions should remain with the Asylum Office and the IJ for adjudication. |
Response: Thank you for your comment. The issues you raise are addressed above.
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Comment 55. |
Commenter: Elizabeth Madden, University of Minnesota- Twin Cities |
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[Can’t copy from the PDF. See URL: https://www.regulations.gov/document?D=USCIS-2005-0035-0105]
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Response: Thank you for your comment. The issues you raise are addressed above.
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Comment 56. |
Commenter: Shannon Shepherd
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I am very concerned about the amendments to the I-765 Employment
Authorization form and instructions that affect asylum seekers, as
well as SIJ, T, and U nonimmigrants. |
Response: Thank you for your comment. The issues you raise are addressed above.
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Comment 57. |
Commenter: Bernice Funk
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Allow me to introduce myself as Bernice Funk. I have practiced immigration law 33 years. I have prepared hundreds of form I765 applications for clients in various categories eligible for USCIS employment authorization. The above-referenced proposed changes are unlawful, unnecessary, impractical, and impossible for USCIS to perform. The persons lawfully entitled under the INA to work authorization should not be prohibited from work authorization, as the proposed changes obviously intend. Pre-judge criminal convictions by forcing people to submit criminal records in the process of applying for work authorization, and particularly for USCIS to adjudicate whether a person is an aggravated felon, is a task for which USCIS is particularly unsuited. This will cause unending delays and problems.
The proposed information is unnecessary and makes proper USCIS work authorization adjudication impossible. Information so collected is likely to have no utility based on inaccuracies. USCIS I-765 adjudicators are not qualified to evaluate the immigration consequences of criminal charges or convictions. The decisions involve complex legal questions; in my experience USCIS examiners (not trained as lawyers) often fail to fund the relevant law. USCIS will be over-whelmed with mistakes and delays in I-765 adjudication. The agency and the public fisc will be subject to litigation and potential damages and fees based on the lack of wise design in these proposed changes. Further, these proposed changes are all duplicative as the biometrics accompanying I-765 adjudication already include fingerprint identification of criminals. It will be impossible for USCIS to evaluate whether a person is an aggravated felon. The law of the aggravated felon is very complex even for expert immigration lawyers. This law is constantly changing, and subject to intense ongoing litigation, including in the US Supreme Court. There is no way USCIS can be accurate with such an assigned task; any methodology or agency assumptions will fail and waste public monies. The proposed changes will not enhance the quality, utility, and clarity of the information collected for I-765 adjudication, and will substantially maximize the burden for persons eligible to fair adjudication under the Immigration & Nationality Act.
I object to the proposed illegal amendments to the I-765 Employment Authorization form and instructions that affect asylum seekers, as well as SIJ, T, and U nonimmigrants. For asylum seekers, it is proposed to require a passport or US or foreign government issued ID. This is often impossible for those fleeing persecution who might have fled without identifying documents or the documents are destroyed or stolen en route. Delaying work authorization for otherwise eligible asylum seekers because they are unable to obtain an ID would cause families great harm, and further burden already overstrained social service providers. Replacing home country documents may put an asylum seeker at great legal risk. An I-765 should not place an asylum seeker in even more danger. |
Response: Thank you for your comment. The issues you raise are addressed above.
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Comment 58. |
Commenter: Victoria Neilson, Immigrant Justice Corps
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Dear Sir or Madam: We write to oppose aspects of the proposed revision to form I-765 application for employment authorization and its instructions. We believe that many of the revisions will harm the most vulnerable immigrants, particularly asylum seekers, and may not comply with international law concerning the United States’ treatment of asylum seekers. Immigrant Justice Corps (IJC) is the country’s first fellowship program dedicated to meeting the need for high-quality legal assistance for immigrants seeking citizenship and fighting deportation. IJC’s goal is to use legal assistance to lift immigrant families out of poverty – helping them access secure jobs, quality health care and life-changing educational opportunities. Inspired by the Katzmann Study Group on Immigrant Representation,1 IJC brings together the country’s most talented advocates, connects them to New York City’s best legal and community institutions, leverages the latest technologies, and fosters a culture of creative thinking that will produce new strategies to reduce the justice gap for immigrant families, ensuring that immigration status is no longer a barrier to social and economic opportunity. Now in our second year of existence, IJC has 70 fellows in the field providing legal representation to thousands of immigrants across the greater New York metropolitan area. Our fellows work primarily on removal defense as well as affirmative applications such as asylum, U visas, and T visas. In many of these applications, obtaining an EAD quickly is vital to the applicant and the applicant’s family.
Requirement for Government Issued Identification We are most concerned with the new requirement that individuals applying for an I-765 must provide a passport or other government issued identification that includes a photograph. In our experience, we have seen that many asylum seekers flee their country with almost nothing beyond “the shirt on their back.” U.S. immigration law has always made allowances for those fleeing persecution including generous grounds of admissibility waivers. Asylum seekers who fear their government should not be required to obtain a passport from that government in order to seek work authorization in the United States, and making that request could be seen as availing themselves of their government’s protection. With asylum seekers now routinely waiting more than two years for affirmative interviews and potentially many years more in backlogged removal proceedings, this change in the law seems particularly punitive.
Requirement Regarding Arrest Records Second, we are deeply disturbed that asylum seekers, and asylum seekers alone, are singled out and must provide records of arrest and conviction. In our experience, asylum seekers often flee their countries after being prosecuted for persecutory purposes, must those individuals now seek records of their arrests before they can work lawfully in the United States? Determining what effect, if any, an arrest in the home country or in the United States will have on an individual’s asylum eligibility requires a complicated analysis. This analysis is best conducted by asylum officers and immigration judges with specific training on the “particular serious crime” and “serious political crime” areas of law. Making this analysis requires an understanding of the law of the country or state where the crime allegedly took place as well as remaining current on constantly changing interpretations by the Board of Immigration Appeals and Federal Circuit Courts. An official in a Service Center who is processing forms should not be making substantive determinations about the merits of an asylum seeker’s claim.
Safe Address Instructions Third, it is important that the option for the applicant to use a safe mailing address be highlighted in the instructions for SIJS applicants, asylum applicants, and individuals granted withholding, in addition to VAWA, U and T applicants. There are many reasons that those seeking humanitarian relief may not be living in secure housing and it is important they receive proper notice about their rights regarding the ability to use a secure address.
We hope that you will take our comments into consideration and make changes to the regulations before finalizing them. |
Response: Thank you for your comment. The issues you raise are addressed above.
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Comment 59. |
Commenter: Lenni Benson
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I write as a law professor who regularly assists youth to secure status, including work authorization using the I 765. I also train and work with others, including a nonprofit organization that is currently representing over 700 youth and who has completed hundreds of additional applications. We work with a large number of pro bono attorneys as well.
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Response: Thank you for your comment. The issues you raise are addressed above.
Thank you for your comment about the estimated time burden. USCIS may reconsider the estimate during a future revision. |
Comment 60. |
Commenter: Yuki Watanabe |
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Thank you for the opportunity to review and comment on these
proposed changes to the I-765 Application for Employment
Authorization.
OVERALL COMMENTS: As a Designated School Official primarily working with F-1 students applying for OPT using the I-765 form, my first reaction to the proposed DRAFT form I-765 is that it is excessively long and complicated, with 27 pages in instructions alone. For our students, the I-765 form has gone from 1 page in recent years to 7 pages. There are many variable and conditional questions that are confusing to even English as a first language applicants. Many intrusive biographical info questions should be taken out altogether – as they seem irrelevant to employment authorization eligibility (especially for students applying for OPT). There are alarming errors on the instructions (some anti-regulatory) - specifically pertaining to the Foreign Students section. Please see my detailed section comments below. Please also note, that I have underestimated how long it would take to provide comprehensive comments. Upon first reading, I feel the instructions have many errors that need careful review and commenting, however, I have run out of time and cannot provide my thorough review. Please do not take my non-mentioning of certain sections of the DRAFT I-765 instructions as my endorsement.
Other Names Used
Nicknames? This seems excessing and irrelevant. Instructions do not address what level of “nickname” you are asking for – I presume those used on certain documents; not those used casually among friends or in school? Again, nickname seems irrelevant. Please take this out.
Your U.S. Mailing Address
THANK YOU for adding the “In Care Of Name” field.
Other Information
I would vote for taking the Social Security Card issuance option (and relevant sections 10 ~13.b.) completely out of the I-765 and continue to keep that a separate process among the two agencies. This section of the form is very confusing with too many variable and conditional instructions of which sections the applicant needs to answer.
If keeping in the option of applicant to request an SSN through this form, at least provide a separate section identified in a larger heading dedicated to “Request SSN” so that the conditional instructions are not as confusing as in the current draft. The applicant can easily mistake this section and inadvertently skip sections 14.a. ~ 19 thinking it is for those only requesting SSN.
Your Country or Countries of Citizenship or Nationality
It is not obvious enough that those who are not requesting SSN (SS card) must start completing the form again in this section.
Instead of “Place of Birth” should this be “Birth Information” as it asks for date of birth and sex?
18. Marital Status does not fall under “Place of Birth” heading…..
19. this question is also misplaced under the heading “Place of Birth” and should go into the next heading “Info on Most Recently Filed I-765” – although I don’t agree with the title of this header (see below).
Information About Your Most Recent Filed Form I-765
This header is misleading. Can be mistaken for this current application for I-765, while I believe what it is asking is information on any previous I-765s filed. The header should be “Information About Previously Filed Form I-765, If Any” (or If Applicable)
20.b Applicants will have a hard time knowing what the “date form I-765 was adjudicated” means or how to find that date.
I propose placing question 20.d “Was your form I-765 approved or denied” first, and then perhaps ask for the date of approval or denial (instead of 20.b. date of adjudication)
This question 21.b. conflicts with what is in the DRAFT I-765 instructions: Passport and Travel Document Numbers. If you used a passport or travel document to travel to the United States, enter either the passport or travel document information in the appropriate space on the application, even if the passport or travel document is currently expired
So is this asking for the passport number of the passport that was actually used at the most recent entry? Or should they enter the “most recently issued” passport, which could have been renewed while in the U.S. after the most recent entry into the U.S? Also what to do if an individual has dual citizenship and had the other country’s passport recently renewed that is not the country’s passport used for their most recent entry?
21.d. Again, is this asking for the country that issued the passport used at most recent entry? Or the country that issued most recent passport (which could be a renewal on a dual citizenship passport for a country NOT used at most recent entry).
Part 3. Biographical Information
This entire Part 3 needs to be taken out. None of this biographical information is relevant to the applicant’s eligibility for work authorization. Take out entire section Part 3.
Good clarification added here on “You must file Form I-765 while in the United States.”
Part 5. Interpreter’s Contact Information, Certification, and Signature
For many of our F-1 students applying for OPT, Parts 5~7 (pages 5-7) will not apply to them. As a general question, would it be okay for them not to include these pages that are left blank, or would they be required to mail all 7 pages even if these last 3 pages are left blank as they do not apply to them?
Partial Comments on DRAFT I-765 Instructions 10/10/2017 (below)
Page 3, Foreign Students Categories 1. F-1 Student Seeking Optional Practical Training (OPT) in a Position Directly Related to Major Area of Study
This section on “Foreign Student Categories” includes several categories that do not pertain only to students. “F. J-2 Spouse or Minor Child of an Exchange Visitor” should not be categorized under “foreign students” as the J-1 encompasses various categories within the EV program itself (ex. scholar, intern, professor)
Also, “1. F-1 Student Seeing OPT in Position Directly Related to Major Are of Study” should NOT include “D. F-1 Student Offered Off-Campus Employment Under the Sponsorship of a Qualifying International Organization” or “F-1 Student Seeking Off-Campus Employment Due to Severe Economic Hardship” (and also definitely not J-2) as they are NOT considered Practical Training under F-1 regulations.
C. 24-Month Extension for STEM Students (Students With a Degree in Science, Technology, Engineering, or Mathematics)--(c)(3)(C).
“File form I-765…… but no later than 60 days after your program is complete” – this statement is incorrect and anti-regulatory. For OPT STEM extension, there should not be a “program completion” limitation on filing. It should only be “up to 90 days before the expiration of your current OPT, but no later than the last day of your current OPT.” to be specific.
“Include evidence the degree that is the basis for the current OPT is in one of the degree programs currently listed on the STEM Designated Degree Program List.” – this is also anti-regulatory. The current post-completion OPT can be in any field as long as the degree program that is the basis for the current STEM OPT application is on the STEM Designated Degree Program list.
D. F-1 Student Offered Off-Campus Employment Under the Sponsorship of a Qualifying International Organization--(c)(3)(ii).
Internship with an International Organization should not be categorized under Practical Training – because it is not considered Practical Training. The employment does not have to be directly related to their major area of study. The instructions are incorrect and misleading.
This might be edited to reflect: 2. F-1 Student Offered Off-Campus Employment Under the Sponsorship of a Qualifying International Organization--(c)(3)(ii). (rather than “D”)
E. F-1 Student Seeking Off-Campus Employment Due to Severe Economic Hardship--(c)(3)(iii).
Similarly, F-1 Off-Campus Employment for Economic Hardship should not be categorized under Practical Training – because it is not considered Practical Training. The employment does not have to be directly related to their major area of study. The instructions are incorrect and misleading.
This might be edited to reflect: 3. F-1 Student Seeking Off-Campus Employment Due to Severe Economic Hardship--(c)(3)(iii). (rather than “E”)
F. J-2 Spouse or Minor Child of an Exchange Visitor--(c)(5).
J-2 Spouse or Minor Child of an Exchange Visitor Should not be categorized under “Foreign Students” or “F-1 Student Seeking OPT. This is incorrect.
G. M-1 Student Seeking Post-Completion OPT After Completing Studies--(c)(6).
(unable to comment on M-1 as I am not as familiar with this category)
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Response: Thank you for your comment. Many of the issues you raise have been addressed above. Responses to unique issues you raise are provided below.
Other names: It is a requirement for all USCIS filings that background checks be run against all names and “aliases” of an applicant.
USCIS is not removing the Social Security Card fields at this time. The instructions provided in this area walk an applicant through which fields to fill out and which to skip based on their responses.
Question 21.a and 21.d. fall under the heading titled Information About Your Last Arrival in the United States. Please provide the information that refers to the document(s) used most recently to enter the U.S.
All pages of the application should be submitted.
Thank you for these comments. Please see the documents posted with the 30-day Federal Register Notice. We may take your recommendations into consideration during a future revision of this form.
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Comment 61. |
Commenter: M. Andrea Popa, Boston University, Global Programs, International Students and Scholars Office
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(See attached PDF for complete itemized comments and
recommendations:
https://www.regulations.gov/document?D=USCIS-2005-0035-0118)
Proposed Changes to Form I-765 which are improvements:
We commend DHS for many modifications to the Form I-765, which we believe help to clarify the application process for nonimmigrant applicants,
Proposed Changes to the Form I-765 which are confusing or concerning:
We are quite concerned that the new form will be expanded from a 2-page to a 7-page application and that this will likely add to the significant backlog of I-765 adjudications.
The proposed I-765 Instructions are further confusing as they indicate (on page 18) that ”If you do not know your weight, or need to enter a weight under 30 pounds or over 699 pounds, enter “000.” It is unclear why this weight range limit has been established or why this information is pertinent to an applicant’s permission to accept U.S. employment.
While we appreciate the effort to give applicants space to answer questions in more detail, the formatting of Part 7 is extremely confusing and may lead to incorrect or inconsistent use of this section.
The numbering used on this page is particularly confusing:
Proposed Changes to updated I-765 Instructions:
With regard to the updated I-765 instructions, we generally appreciate the added clarification.
Improvements to the Instructions:
It is particularly helpful that the application windows and eligibility for each F-1 filing category are carefully outlined.
Edits to the Instructions that are confusing:
We would request review of the following proposed edits which we find to be concerning or confusing:
At the end of the F-1 employment categories (after employment with international organization and employment due to severe economic hardship) is a note which appears to be related to OPT only. (“If you are an F-1 student filing for initial or extension of OPT, please note that your OPT and your employment authorization will be automatically terminated if you change educational program levels or transfer to another school….”)
SUMMARY RECOMMENDATIONS
We would strongly urge DHS to keep the Form I-765 as short as possible in order to ensure timely adjudication of U.S. employment authorization for temporary nonimmigrants. We would particularly suggest removing sections added to the new form that are not pertinent to the applicant’s eligibility for work permission, including the biographical question in Part 3. We would urge correction of the filing instructions as noted above – in particular related to the filing window for STEM OPT applications.
We are grateful for the opportunity to review this form in draft and to submit comments to improve the form’s clarity and usefulness to DHS and to our student and scholar clients.
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Response: Thank you for your comment. Many of the issues you raise have been addressed above. Responses to unique issues you raise are provided below.
USCIS is not making a change to the form at this time.
The term endorsed has not presented a problem in earlier versions of the I-765 instructions and is used throughout the regulation.
SCOPS: Red recommendation is for the bullet points listed above it.
Follow the instructions for using N/A (none) when the question is not applicable. No one is required to obtain an SSN in order to file Form I-765
USCIS is not making a change to the country of citizenship questions on form at this time.
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Comment 62. |
Commenter: Kristina McKibben
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Requiring asylum seekers to produce documentation from the very
countries persecuting them is not only a violation of our treaty
protection, it is a logistical nightmare. With the backlog of
asylum cases, this added procedural burden will add wait time for
applicants and adjudicators. |
Response: Thank you for your comment. The issues you raise are addressed above.
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Comment 63. |
Commenter: Marie Vincent
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I am very concerned about the amendments to the I-765 Employment
Authorization form and instructions that affect asylum
seekers. |
Response: Thank you for your comment. The issues you raise are addressed above.
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Comment 64. |
Commenter: Emilie Buse
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After reviewing the draft I-765, we share the same opinions and
suggestions of NAFSA and we would like to request that you make
the adjustments based on their suggestions. The three topical
points are: expand the name fields, eliminate the ethnicity and
race questions, and revise the options for reporting prior
SSN. |
Response: Thank you for your comment. USCIS is not making these changes at this time.
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Comment 65. |
Commenter: Frank Calabrese, The office of International Student and Scholar Services of the University of Pennsylvania
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Thank you for offering the public the chance to comment on the proposed revisions to form I-765 Application for Employment Authorization. The Office of International Student and Scholar Services of the University of Pennsylvania is happy to provide the comments and questions below.
Length With the consideration that in recent memory Form 1-765 was only a single page document, our strongest comment is that, at 7 pages, the form is far too long. We view the length of the form as an intimidating deterrent to those who must complete it and inconsistent with previously established goals such as those described in the Paperwork Reduction Act. Recognizing that the form is designed to cover many scenarios, we wonder if the same goal might be better reached by collecting the information via a smart web-based application or using a series of supplements depending on the source of the application, in a similar fashion to the supplements related to the form 1-129.
In the alternative, we offer that several fields could be eliminated or streamlined. For example:
Race and Ethnicity Other than for statistical reasons, we question the utility of collecting information such as this. We are particular perplexed as to why this ethnicity category is divided into "Hispanic" and "Not Hispanic." We here note that the large majority of other forms that collect this kind of information make these voluntary fields so that individuals understand that they are not meant to be used for discriminatory purposes. We suggest that the agency might do the same.
Other Biographical Information We note that weight and hair color are variable over time and do not seem to be useful identifying markers. Given that a photo is required as part of the application, we find these questions redundant and suggest that they be removed.
US Physical Address We fear that this field may be particularly troublesome for those who will be in transitional residence or outside of the US while the application is being adjudicated. We wonder if it will be checked against other government data bases and flagged in the cases where one address is more up-to-date than another.
PDF Fields We have had difficulty in previous iterations of the form with fitting all of the necessary information into the allotted PDF boxes. Many applicants have expressed trouble fitting long names or irregular addresses into the space provided. We hope that this might be addressed in the next version.
Eligibility Category Formatting Under Eligibility Category, we suggest that you restore the previous formatting that included parenthesis and boxes as shown below to help in warding off errors. ( )( )( )
New Clarifications We find that overall, the questions posed on the form are much clearer than in previous editions. For example, "enter the date your form 1-765 was adjudicated" where previously it read only "dates", and the explanations related to Reason for Applying in Part 1 are both useful additions. We find that the addition of the " In care of name" above mailing address is great change. We applaud these modifications.
We thank you for your consideration and we appreciate the opportunity to voice our comments.
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Response: Thank you for your comments. The issues you raise are addressed above.
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Comment 66. |
Commenter: Hasan Shafiqullah, The Legal Aid Society
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Thank you for the opportunity to comment on the federal notice concerning an information collection request regarding the proposed revision of a currently approved collection of information, Form I-765, Application for Employment Authorization, 82 Fed. Reg. No. 47761. Specifically, the proposed changes are to the form and related instructions. The response of The Legal Aid Society is set forth below.
I. Background With 22.1 percent of New York State residents being foreign-born,1 and most of them residing in New York City, immigrants are vital to the strength and growth of our economy. The positive contributions of immigrants are felt in every corner of our communities, in myriad ways. Immigrants occupy numerous positions within our government. They work in the City’s medical facilities. They are teachers and university students and corporate employees. In addition, they are consumers, and their presence keeps our city’s industries thriving. Therefore, we have a keen interest in ensuring that immigrants in our community are able to live safe and healthy lives, and, in pursuit of these ends, that they are able to access the services they need in order to flourish. In addition, recognizing that obtaining immigration status helps communities maintain economic stability, we also have a strong interest in supporting programs and policies that help immigrant residents of New York City apply for immigration benefits for which they are eligible.
The Legal Aid Society, the nation’s oldest and largest not-for-profit law firm for low-income persons, was founded in 1876 to serve New York’s immigrant community. Although the mission of The Legal Aid Society has expanded since then, the Society has not wavered in its commitment to serve low-income immigrants in New York City. The Legal Aid Society is organized into three practice areas: Civil, Juvenile Rights and Criminal Defense. The Civil Practice provides direct legal assistance to low-income families and individuals in over 32,000 client cases and matters annually through a network of 14 neighborhood legal services offices in all five boroughs of New York City and 23 city-wide specialized units.
The Immigration Law Unit of The Legal Aid Society, based within the Civil Practice, works collaboratively in all practice areas to serve Legal Aid’s diverse immigrant clients through an integrated service model. The Immigration Law Unit staff represents immigrants before USCIS, before immigration judges in removal proceedings, in federal court on habeas corpus petitions and on administrative and judicial appeals. The Unit also partners with fourteen community based organizations in New York City to provide application assistance, comprehensive advice and workshops to low-income immigrants.
Part of our practice is counseling clients who seek our help for immigration needs on the impact receipt of public benefits could have on their ability to adjust and, where appropriate, help by advising them on how to apply for benefits needed to maintain their health, housing and other needs of daily life.
II. Comments on Revisions to Form I-765 and Instructions, Insofar as they Affect Asylum Seekers, Special Immigrant Juveniles, and T and U nonimmigrants A. Passport Requirement The Legal Aid Society is concerned about the amendments to the I-765 Employment Authorization form and instructions as they affect asylum seekers. First, there is now a requirement to provide “a copy of at least one of the following documents: Form I-94, ArrivalDeparture Record (front and back), passport, or other travel document.”2 a passport or US or foreign government issued ID, which now applies to those with asylum pending or withholding granted (as well as to Special Immigrant Juveniles [SIJ], and to T and U nonimmigrants).
This is problematic for asylum seekers, in particular, or those fleeing persecution (who are also granted withholding) because often asylum seekers have been forced to flee without their identifying documentation or their documentation was destroyed or stolen en route to the United States. Often the work authorization is the first government-issued identification they are able to obtain.
These asylum seekers may have a desperate need to work pending delays in adjudicating their cases, particularly given the lack of social services and assistance for noncitizens. Delaying work authorization for otherwise-eligible asylum seekers because they lack a passport or travel document would cause these individuals and their families great harm, and place further burdens on already-overstrained social service providers.
Further, replacing these documents may put an asylum seeker at risk if they approach their home government, or at risk of later being accused by the U.S. government of “reavailment” of the protection of their home country, from which they are seeking protection in the U.S. The work authorization application should not place asylum seekers in more danger by having them approach their own government for documents, or harm their own cases by doing so.
The requirement for providing at least a Form I-94, Arrival-Departure Record (front and back), passport, or other travel document seems to conflict with earlier instructions for asylum seekers, which more reasonably allowed the use of a copy of either a passport or travel document, even if the passport or travel document is currently expired.
B. Arrest and Conviction Records It is of great concern that asylum seekers would now be required to submit their arrest and conviction records with their application for employment authorization. USCIS is proposing to evaluate the arrest records to adjudicate whether or not someone has been convicted of an aggravated felony. This legal determination is best made by an asylum officer or immigration judge. It is inefficient for this adjudication to occur twice, and this will lead to unnecessary litigation. Asylum seekers will be forced to challenge work authorization denials based on any USCIS aggravated felony determination, in Administrative Procedure Act actions in Federal District Court, as their asylum or withholding hearings before the Asylum Office or Immigration Judge may be delayed for years. Because District Court rulings would have a preclusive effect on asylum officer and Immigration Judge decisions, the new requirements could create a parallel track of litigation, with the asylum merits being heard by an asylum officer or immigration judge, and the criminal issues being heard separately in the Federal Courts, even prior to a decision on asylum.
Additionally, USCIS is proposing to deny, in its discretion, an application for Employment Authorization if the applicant has been arrested and/or convicted of any crime. This type of discretionary determination is also best made by an asylum officer or immigration judge, who will have the complete records of the applicant’s equities and other information that is vital to making a discretionary determination.
Denying someone with criminal charges or convictions the right to lawfully work may actually have a negative effect of drawing them, with no legal means to support themselves, into abusive situations or work environments, or into potentially criminal situations. For those with even minor offenses, this new requirement will cause even further delays in the already-backlogged work authorization queue. The legal determination of any immigration consequences of convictions should remain with the Asylum Office and the Immigration Judges.
C. Safe Mailing Address Finally, the option to use a safe mailing address needs to be properly highlighted in the instructions and should be provided for SIJ, asylum, and withholding of removal applicants, in addition to VAWA, U and T applicants. We appreciate the opportunity to comment on this highly important topic and we look forward to a continuing dialogue with DHS on these and many other issues. |
Response: Thank you for your comment. The issues you raise are addressed above.
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Comment 66. |
Commenter: James Kendrioski
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Regarding I-765 questions about gender/sex (currently question
#7): |
Response: Thank you for your comment. The issues you raise are addressed above.
USCIS is not making additional changes at this time. |
Comment 67. |
Commenter: Marina Dzhamilova
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This regulation would be detrimental to helping people survive in
this country while they are waiting for their asylum interview
which are taking an extremely long time now. It would
disproportionately affect those whom are fleeing serious violence
in their home countries and did not have a chance to obtain their
passports. Some of my clients who come from more affluent
countries will not be affected, as it was easier for them to get a
passport, while those who come from poorer countries, whom are not
educated, will be further discriminated because they were fleeing
for their lives. |
Response: Thank you for your comment. The issues you raise are addressed above.
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Comment: 68. |
Commenter: Audrey Carr, Legal Services NYC
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Legal Services NYC submits the following comments in response to the above-referenced amendments to Form I-765 Application for Employment Authorization and the form’s instructions, published in the Federal Register on October 13, 2017.
LSNYC fights poverty and seeks justice for low-income New Yorkers. For more than 40 years, we have helped clients meet basic needs for housing, access to high-quality education, health care, family stability, and income and economic security, including assisting immigrants and survivors of crime and violence attain lawful immigration status. LSNYC is the largest civil legal services provider in the country, with deep roots in all of the communities we serve. Our neighborhood-based offices and outreach sites across all five boroughs help more than 80,000 New Yorkers annually.
We write to raise our concerns about how changes to the I-765 Employment Authorization (EAD) form and instructions will affect asylum seekers, as well as SIJS, T, U nonimmigrants and VAWA applicants.
The amended Form I-765 now requires that asylum seekers and individuals seeking SIJS, T and U nonimmigrant status and VAWA relief submit a passport or a US or foreign government issued identification when requesting work authorization.
SIJS, T, U and VAWA applicants may not have an identification document (ID) to submit with their EAD requests. Children applying for SIJS often have no identification whatsoever. This is particularly true where a child seeking SIJS may have never applied for, or been granted a passport in their home country. A child who has been neglected, abused or abandoned may not have access to, or even knowledge of how to obtain identification to verify their identity. Further, some children absolutely cannot obtain passports because most countries require signatures from both parents before issuing a passport to a child. In fact, in Honduras, a child less than 21 years old, must obtain both parents’ authorization to obtain a passport. Even in the U.S. it is uncommon for children to be issued identification. In this country, it is typically not until children are young adults that they are issued their first ID in the form of a driver’s permit or license. It is therefore unreasonable for the Service to expect SIJS applicant to provide identification when requesting work authorization.
T, U and VAWA applicants may also not have a passport or other identification in their possessions. If applicants for T status have identification on their person, this ID is most often in the control of their trafficker who holds the documents hostage in order to force the individual into all sorts of illicit activity. An applicant for T status typically never has their documents returned to them and thus would have no ID to submit with their EAD application. U and VAWA applicants also may not have ID. A U or VAWA applicant who is a survivor of domestic violence is usually at the mercy of their abuser, who forcibly holds their documents to control the applicant. Some U and VAWA applicants may move from location to location seeking safety and lose their documents in the process. It is unnecessary that the Service require that such vulnerable applicants provide an ID to obtain an EAD.
Likewise, many asylum seekers and individuals granted withholding of removal may not have passports, state or educational ID because frequently they have been forced to flee their homes leaving identifying documents behind. Even if asylum seekers leave their countries with ID, those documents are sometimes destroyed or stolen en route. Further because some asylum seekers may oppose their country’s governments, it is impractical and unsafe once they reach safety to request that their country issue them a passport or ID. Approaching their home government to request an ID needlessly puts an asylum seeker in peril and also puts them at risk of later being accused of "reavailment" by the U.S. government.
Requiring that asylum seekers submit their arrest and conviction to determine if the applicant has been convicted of an aggravated felony is an excessive and unnecessary burden. The determination of whether a crime is considered an aggravated felony requires legal analysis best made by an asylum officer or immigration judge. If USCIS wrongly determines that an asylum seeker has an aggravated felony conviction and denies the issuance of an EAD, the asylum seeker will be forced to challenge the denial in Federal District Court, as their hearings before the asylum office or Immigration Judge may be delayed for years. Because District Court rulings would have a preclusive effect on asylum officer and Immigration Judge decisions, the new requirements could create a parallel track of litigation, with the asylum merits being heard by an asylum officer or immigration judge, and the criminal issues being heard separately in the Federal Courts even prior to a decision on asylum. Further, denying someone with criminal charges or convictions the right to lawfully work may actually have a negative effect of drawing them, with no legal means to support themselves, into abusive situations or work environments, or into potentially criminal situations. For those with even minor offenses, this new requirement will cause even further delays in the already backlogged work authorization queue. The legal determination of the immigration consequences of convictions should remain with the asylum office and the immigration judges for adjudication.
Work authorization is often the only government issued ID that asylum seekers, SIJS, T, U and VAWA applicants can obtain. These individuals are often desperate to work to support their families and in the case of T, U and VAWA applicants, to escape their trafficker and abuser. Requiring that such individuals provide government issued ID to get a work permit is an onerous requirement that does nothing to support the applicant’s eligibility for work authorization to which they are entitled under the statute and regulations
Additionally, we would urge the Service to properly highlight in the instructions an option of using a safe mailing address for SIJS and asylum applicants as well as individuals granted withholding of removal, in addition to VAWA, U and T applicants.
Finally, there is no need for the Service to collect information related to an EAD applicant’s race, ethnicity or their height, weight or hair color. This information has no validity whatsoever to an applicant’s eligibility to legally seek authorization to work in the U.S. |
Response: Thank you for your comment. The issues you raise are addressed above.
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Comment 69. |
Commenter: Amy Pedagno
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As a lawyer who frequently represents asylum applicants, I have
several concerns about the proposed amendments to the I-765
Employment Authorization form and instructions. |
Response: Thank you for your comment. The issues you raise are addressed above.
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Comment. 70. |
Commenter: Alison Foley- Rothrock
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I am very concerned about the amendments to the I-765 Employment Authorization form and instructions that affect asylum seekers, as well as SIJ, T, and U nonimmigrants. In a country where one of our supposed core values is the rewards that ought to follow from a desire to work hard to achieve one's dreams, work authorization *should* be as simple to obtain as a driver license, yet these proposed changes further complicate and will inevitably cause even worse delays than we have seen recently. It should *never* take a victim of domestic violence or someone who has been forced to flee their country with next to nothing months upon months to receive or renew a work authorization document. There is no sound justification for it and these delays cause irreversible damage to families (joblessness, homelessness, hunger, foregoing medical care...). It is unconscionable. The requirement to provide a passport or US or foreign government issued IDas applied to those with asylum pending or withholding granted (as well as to SIJ, T and U nonimmigrants) is problematic because often asylum seekers have been forced to flee without their identifying documentation or they have been destroyed or stolen en route. The work authorization is often the first government issued ID they are able to obtain. These asylum seekers may have a desperate need to work pending delays in adjudicating their cases, particularly given the lack of social services and assistance for noncitizens. Delaying work authorization for otherwise eligible asylum seekers because they are unable to obtain an ID would cause these asylum seekers and their families great harm, and place further burdens on already overstrained social service providers. Further, replacing these documents may put an asylum seeker at risk if they approach their home government, or at risk of later being accused of "reavailment" by the U.S. government. The work authorization application should not place asylum seekers in more danger by having them approach their own government for documents, or harm their own cases by doing so. Further, requiring asylum seekers to submit their arrest and conviction records is redundant and unnecessary, again leading to unnecessary delays and complications in what ought to be a simplified process. Whether someone has been convicted of an aggravated felony is a legal determination best made by an asylum officer or immigration judge. This will lead to litigation, which will increase the costs to all parties. Further, denying someone with criminal charges or convictions the right to lawfully work may actually have a negative effect of drawing them, with no legal means to support themselves, into abusive situations or work environments, or into potentially criminal situations. For those with even minor offenses, this new requirement will cause even further delays in the already backlogged work authorization queue. The legal determination of the immigration consequences of convictions should remain with the asylum office and the immigration judges for adjudication. Finally, the option to use a safe mailing address needs to be properly highlighted in the instructions and should be provided for SIJ and asylum applicants as well as individuals granted withholding of removal, in addition to VAWA, U and T applicants. There is no rational basis for these changes and they will only serve to create an even more excessive burden on those who simply wish to work as they are legally allowed to do under our law. |
Response: Thank you for your comment. The issues you raise are addressed above.
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Comment 71. |
Commenter: Dominique Poirier
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1) As usual, the form is too long and cumbersome. We work with a largely poor population many of whom have little education. USCIS is making all form completion virtually impossible for the poor and uneducated given the cumbersome nature of the forms.
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Response: Thank you for your comment. Many of the issues you raise are addressed above.
We recognize that the form is quite long, but we have had to include all questions relevant to all applicants who file for employment authorization in any category. Some of the edits that have been made may shorten the form. |
Comment 72. |
Commenter: Aaron Morris
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Immigration Equality is the leading lesbian, gay, bisexual,
transgender, and queer (LGBTQ) immigrant rights organization in
the country. Each year, we provide free advice and legal services
to more than 3,500 LGBTQ and HIV-positive immigrants seeking
refuge, fair treatment, and freedom in the United States. |
Response: Thank you for your comment. The issues you raise are addressed above.
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Comment 73. |
Commenter: Joanna Hamel
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Part 2.
Part 3. Biographic Information
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Response: Thank you for your comment. Many of the issues you raise have been addressed above. Responses to unique issues you raise are provided below.
2. The revised form includes an “In Care Of” line in the mailing address section.
4. a. Yes, this question is asking for City and State. USCIS needs where the applicant entered the United States, regardless of how the applicant entered. An explanation can be provided in Part. 7, Additional Information, if necessary.
b. Applicants don't always submit the required evidence with the I-765; therefore, these questions provide necessary information for adjudication officers to look in other systems for relevant information about applicants in order to make an informed adjudication. USCIS adjudicators use both responses to questions on the form and evidence to determine eligibility for employment authorization and an EAD.
5. a. USCIS has made edits based on your recommendations. Please see the Table of Changes and other documents submitted for 30-day Federal Register Notice.
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Comment 74. |
Commenter: Elisa Ford
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I am an immigration attorney in Seattle, WA. I am very concerned
about the amendments to the I-765 Employment Authorization form
and instructions that affect asylum seekers, as well as SIJ, T,
and U nonimmigrants. |
Response: Thank you for your comment. The issues you raise are addressed above.
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Comment 75. |
Commenter: Sabine Saway
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Thank you for providing opportunity for input!
Item 20c - where would applicants
find date of prior I-765 adjudication other than on the notice
which most students don't keep or receive Item 20d - add 'Withdrawn' as an
option Items 21a-e - duplicate information
- applicants provide copies of documents with the same
information
Item 23 - if this information should
match the entry stamp in the passport, port of entries outside the
US should be included
Item 26 - seems redundant - SEVIS
ID# listed on attached I-20s; clarify if student has more than one
SEVIS ID# which one should be listed
Item 27 - current I-765 formatting
helpful for correct data entry
Item 28a - clarify if name of the
degree, degree level (Bachelor/Master/Doctorate) or CIP code
should be listed
Part 3 - Biographic Information - how does this relate to the requested employment authorization?
Do pages 5 to 7 need to be printed
if left empty/unused? Recommend consistency between 'You' and 'Applicant' throughout the form. |
Response: Thank you for your comment. Many of the issues you raise have been addressed above. Responses to unique issues you raise are provided below.
Items 21a-e Applicants don't always submit the required evidence with the I-765, therefore, these questions provide necessary information for adjudication officers to look in other systems for relevant information about applicants in order to make an informed adjudication. USCIS adjudicators use both responses to questions on the form and evidence to determine eligibility for employment authorization and an EAD.
Item 26 – Applicants don't always submit the required evidence with the I-765, therefore, these questions provide necessary information for adjudication officers to look in other systems for relevant information about applicants in order to make an informed adjudication. USCIS adjudicators use both responses to questions on the form and evidence to determine eligibility for employment authorization and an EAD. If the applicant has more than one SEVIS ID number, those can be provided in Part 7. Additional Information.
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Comment 76. |
Commenter: Evangeline Chan, Safe Horizon
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Safe Horizon is the nation's leading victim assistance organization. The mission of the organization is to provide support, prevent violence, and promote justice for victims of crime and abuse, their families, and communities. Safe Horizon's Immigration law Project (ILP) has developed expertise in providing the highest quality legal representation, consultation, and advocacy services to meet the diverse needs of immigrant communities throughout the City. Project attorneys represent immigrant victims of crime, abuse, domestic violence, trafficking, and torture in a broad range of immigration cases, both in immigration court and in administrative applications. This includes but is not limited to: U Visa petitions, Violence Against Women Act (VAWA) self-petitions, T Visa applications, asylum applications, applications for Temporary Protected Status and other forms of humanitarian relief, requests for work authorization, legal residence and citizenship applications, as well as removal defense and appeals.
Safe Horizon's Anti Trafficking Program (ATP), established in 2001, is the largest direct service provider for human trafficking victims on the East Coast. We provide a holistic range of services for our clients, including legal and case management services, for victims of both labor and sex trafficking. Our clients include men, women, children and both U.S. and foreign nationals. Trafficking survivors are a diverse community, encompassing all gender identities, ages, and religious and cultural backgrounds. Safe Horizon is committed to a client-centered approach to services for human trafficking and immigrant survivors, and all of our client interactions are grounded in a trauma-informed lens.
SH commends USCIS for working with the Social Security Administration to allow EAD applicants to request a Social Security number through the 1-765 application. However, other revisions to the Form and Instructions, if implemented, are likely to be detrimental to unaccompanied children and other vulnerable applicants. Respectfully, SH recommends that USCIS adopt the recommendations set forth below.
Officers Who Adjudicate EAD Applications Should Receive Training That Establishes Why an EAD is an Appropriate Benefit for an Eligible Minor
As an initial matter, to avoid misperceptions about the appropriateness of an EAD for minors, it is important that adjudicators understand the range of reasons that make EAD availability crucial to minors as well as adults. Some of the reasons include the following:
Given these and other factors, any inappropriate barriers in the proposed revised Form and Instructions, that may inhibit eligible minors' access to an EAD, should be eliminated, as further discussed below.
The Revised Form Fails to Provide Appropriate Exemptions from the Requirement to Provide a Passport or Government-Issued Photo Identification.
In a break with past practice, no exception is made for categories of immigrants for whom obtaining such documents is a practical impossibility. Children and youth who have fled violence, trafficking, neglect, and other harsh circumstances often have never held any government-issued identity document. Even a child who has been issued such a document may have since lost it or had it withheld by persons who exploited or maltreated the child. Under no circumstances should asylum applicants, asylees, or those granted withholding of removal or deportation be compelled to contact the government of the country of persecution to obtain a government-issued identity document. Children and youth who are eligible to apply for adjustment of status on the basis of special immigrant juvenile status (SUS) are, by definition, abused, abandoned, neglected, or similarly maltreated by one or both of their parents. Often they cannot satisfy a foreign government's requirement for the signature of two parents 'or issuance of a passport. For victims of crime or trafficking and their derivatives, government documents may be unobtainable, particularly where the trafficking or other crime was perpetrated by, or in collaboration with, foreign government officials. In fact, the EAD itself is often the only form of government-issued photo ID available to unaccompanied children, asylum applicants, and other vulnerable immigrants.
Recommendation: SH recommends that the documentation requirements at Parts 3.A. and 3.8 (Instructions, p. 20) provide for alternative responses for the following categories of EAD applicants: (c)(8) Pending Asylum and Withholding of Removal; (a)(lO) Granted Withholding of Deportation or Removal; (a)(16) and (c)(25) T Nonimmigrant categories; (a)(19) and (a)(20) U Nonimmigrant categories; (c)(l4) VAWA Deferred Action; (c)(31) Approved VAWA Self-petitioners; and, in the case of Part B., (c)(9) Adjustment Applicants who apply on the basis of SUS. Instead of an absolute requirement to produce documents on a limited list, applicants in these categories should be allowed to provide other evidence of their identity and avoid being excluded from an essential benefit Similarly, Form items 2l.b. through 21.e. should be annotated "if any; to indicate that the requested data (passport number, etc.) is requested if available, but is not absolutely required. In addition, question 20.b., "Which USCIS office adjudicated your Form I-76S?” should be eliminated, as the information it calls for will be unknowable for many applicants, yet should be readily accessible to USCIS.
Questions and Documentation Requirements Pertaining to Arrests and Criminal Convictions, Directed Solely to Applicants With Pending Asylum or Withholding, Should be Eliminated.
"Proof of Arrests and Conviction. For initial and renewal applications, you must submit proof of any arrests and/or convictions. If you have been convicted of an aggravated felony, you 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. You must, however, 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. NOTE: USCIS may, in its discretion, deny your application if you have been arrested and/ or convicted of any crime." Instructions, p. 21.
Persons who meet the stringent standards for asylum or withholding are, by definition, victims of persecution and other horrendous conduct. Applicants for such relief have long been extended the benefit of an EAD so that they may work to support themselves and their families during the often long periods required for adjudication of such applications. An arrest does not inevitably result in a conviction, or even a charge. Charges, if lodged, are often downgraded to less serious charges at a later stage of the process; accordingly, arrest information typically presents an incomplete or inaccurate picture. Many arrests, particularly those of juveniles, are not associated with any crime at all. Moreover, the phrase "any crime” is far broader than the category of convictions that may result in statutory ineligibility for asylum. The denial of an EAD for conduct that would not result in the denial of asylum or withholding is counterproductive, since a person eligible for the protection of the United States government would thereby be stripped of the ability to support himself or herself, and to present government identification. The evaluation of whether a conviction is incompatible with a grant of asylum or withholding is an ultimate question for the adjudicator of that application. It undermines due process to pretermit or prejudice that adjudication by making police records a part of the EAD evaluation, which will often be cursory and based on incomplete or premature information. Recommendation: SH recommends that Question 30 be eliminated from the revised Form 1-765, along with the entirety of Instruction number 6 on page 21 of the revised Instructions.
The Safe Mailing Address Option Needs Greater Visibility and Broader Availability
Recommendation: The option to use a safe mailing address should be extended not just to those with approved VAWA or Tor U Nonimmigrant applications, but to any EAD applicant who has reason to be concerned for safety. The availability of the option should be clearly noted at the start of Item 4 on the Form, with a reference to where to find more detail in the Instructions.
SH recognizes the importance of a fair and efficient adjudication process for applications including Form 1-765. We believe that the recommended changes will help to ensure that the process better accounts for the particular circumstances of unaccompanied children and other vulnerable immigrants.
I can be reached at evangeline.chan@safehorizon.org if you have any questions or need any further information or explanation.
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Response: Thank you for your comments. Some of the issues you raise have been addressed above. Unique issues you raise are addressed below.
USCIS has been issuing EADs for minor applicants for many years. There has been no change to this policy.
Follow the Specific Instructions for using N/A (none) when the question is not applicable.
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Comment 77. |
Commenter: Steve K. Smith, Esq.
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Please do not implement the proposed changes to the current Form
I-765, Application for Employment Authorization. |
Response: Thank you for your comment. Our response is provided above.
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Comment 78. |
Commenter: Jennifer Golden
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Proposed changes to Form I-765
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Response: Thank you for your response. Some of the issues you raise have been addressed above. Unique issues you raise are addressed below.
This Form I-765 is used by many employment authorization categories and cannot be revised to be specific to the student OPT categories.
21.b,d,e Passport Number
SEVIS numbers are issued by ICE/SEVP and are not always visible to USCIS adjudicators. There are times when a student is issued more than one SEVIS number and USCIS adjudicators need the numbers to search SEVIS for a full “student” history.
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Comment 79. |
Commenter: Anwen Hughes, Human Rights First
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On October 13, 2017, the Department of Homeland Security (DHS) issued a notice in the Federal Register (DHS Docket No. USCIS-2009-0033) proposing revisions to USCIS Form I-765, the Application for Employment Authorization. Human Rights First submits these comments on the proposed changes.
Human Rights First and its Interest in this Issue
For over thirty years, Human Rights First has worked to ensure protection of the rights of refugees, including the right to seek and enjoy asylum. Human Rights First grounds its work on refugee protection in the international standards of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol and other international human rights instruments, and we advocate adherence to these standard in U.S. law and policy.
Human Rights First operates a large pro bono asylum representation program. With the assistance of volunteer attorneys, we provide legal representation, without charge, to hundreds of refugees each year. We have occasion to complete forms I-765 for virtually all of these clients, while their cases are pending, or to advise volunteer lawyers as they complete this form on behalf of their pro bono clients; on occasion we also help asylum seekers who tried to file for employment authorization on their own or through others with problems that arose with their applications. Based on this experience, we have a number of concerns about the proposed revisions to the I-765 form and the instructions thereto. With These Proposed Changes, the I-765 Would Become Much Too Long
For many years, the I-765 was one single-sided page. The changes proposed here would make it seven pages long. USCIS itself estimates that it would now take 4 hours and 30 minutes to complete and submit. Human Rights First is concerned that the lengthening of this form—a phenomenon also seen with recent revisions to other USCIS forms, notably the I-485 application for adjustment of status and the N-400 application for naturalization—poses a serious challenge for unrepresented applicants and a further hindrance to access to counsel for those who seek legal help.
Much of the information newly required here is unnecessary, as it is either irrelevant to a person’s eligibility for employment authorization, otherwise collected by USCIS, or both. The form, for example, now requires applicants to fill in the number of the passport or travel document, if any, on which they traveled to the United States. Most applicants will already have provided this information in the applications for other status with which the I-765 is typically associated. Why burden them, and those who seek to assist them, by asking for it a second time here? The same question applies to the addition of six questions, strangely titled “Biographic Information,” at the top of page 4, which in fact require applicants to list their race, ethnicity, height, weight, eye color, and hair color. With respect to the first two categories, the instructions to the form impose a set of definitions that may not correspond to applicants’ own understandings of their identity; if USCIS is going to collect this data, applicants should be allowed to self-identify according to their own definitions. But the larger question is why collect this and other biometric information in the I-765 when applicants are separately scheduled for biometrics appointments whose whole purpose is to collect this information? The proposed new instructions state that providing this information in the I-765 may lessen the time an applicant spends at the USCIS Application Support Center in connection with the biometrics appointment. But in many cases—for example for clients Human Rights First serves who are filing an initial application for employment authorization based on a pending asylum application, and for most applicants filing renewal I-765’s, that biometrics appointment has already taken place, so no time is gained by submitting this information again on the I-765. Instead, additional time is expended—the applicant’s time, and, for those who are filing the I-765 with the help of interpreters and/or legal representatives, the time of those people as well.
Moreover, the form now requires certifications not only from any person other than the applicant who prepared the form, but also from any interpreter who assisted in its preparation. In addition, the interpreter, if any, is required to certify that he or she has “read to th[e] applicant in the identified language every question and instruction on this application and his or her answer to every question.” This is unrealistic and unnecessary. With the proposed revisions, the instructions to the I-765 are 27 pages long. Presumably USCIS does not actually mean to require interpreters to read the entire instruction booklet to applicants? Even if “every . . . instruction” refers only to the questions and instructions on the application itself, as the text suggests, many of these refer to eligibility categories other than the one applicable to the particular applicant. In any case, where an applicant is represented by counsel, and counsel is already familiar with the case (typically because he or she also filed the underlying application for asylum, or for permanent residence, or what have you), even conscientious counsel will not feel the need literally to have every item on this form read back to the applicant by an interpreter, as they will have done the same already in connection with the previously-completed application. One would normally focus instead on confirming information that might be susceptible to change. The fact that the form now also requires a signature from the interpreter, if one is used, adds an additional complication—and additional time—to this increasingly cumbersome process, particularly for lawyers or legal services organizations who may need to resort to an interpreter over the telephone to complete the I-765, which is, and should remain, a routine and basic application. USCIS should by all means require legal representatives to ensure the accuracy of the information they provide on this and other USCIS forms, but the agency should leave them some realistic margin of professional judgment as to how they accomplish that. While acceptance of photocopied, faxed, or scanned copies of signatures as valid for filing purposes is a welcome development, requiring a signature from the interpreter as well negates that improvement. Many legal services organizations rely on volunteer interpreters who, in many cases, make themselves available over the telephone for tasks like this, sometimes on breaks from their regular jobs. They frequently do not have ready access at that moment to printers and scanners such as to be able to sign certifications and return them to us prior to filing.
All this additional time is time that applicants who retain private counsel will need to pay for, if not on a direct hourly basis, as part of an eventual increase in the fees law offices have to charge for immigration legal services generally. For those who seek free legal help, time a legal services organization spends completing a now cumbersome I-765 is time taken away from providing legal services to another applicant, or to preparing other aspects of this same applicant’s case. The need to spend over four hours on administrative tasks like I-765 filing also makes asylum cases less appealing to lawyers who volunteer their time pro bono. Overall, and regardless of who is paying counsel, this tends to reduce the number of non-citizens who receive legal services.
Several of the Requirements that Apply Without Exception to All Applicants Pose Serious Obstacles for Asylum Applicants and Other Vulnerable Applicants
The proposed instructions would require all applicants to provide a copy of at least one of: the front and back of an I-94 Arrival-Departure Record, a passport, or other travel document. This poses a serious obstacle for asylum seekers, who may not have arrived in the United States on their own validly issued travel documents, and who, under the 1967 Refugee Protocol, are not to be penalized for such irregularities. It also poses a problem for any asylum applicants (or applicants for certain other forms of relief from removal that entitle a person to apply for employment authorization) who are in removal proceedings and whose original travel and identification documents are being held by Immigration & Customs Enforcement, typically until the conclusion of their removal proceedings. The same is also true in the case of persons granted withholding of removal, who may never recover from ICE any passports or travel documents taken from them when they were initially detained or at any subsequent stage of the process. The same problem arises for all applicants for refugee protection (asylum applicants and persons granted withholding of removal) who do not have photo identification issued to them by the government of the country they fled. Applying for such identification may be impossible for them, and/or may pose a threat to the security of the applicant and/or of relatives still in the home country. All these applicants will be establishing their identity as part of the asylum process (or, in the case of persons granted withholding of removal, will already have done so), sometimes through means other than government-issued photo identification.
In addition, I-765 applications are frequently filed on behalf of applicants for asylum or SIJS applicants who are young children—too young to work but by the same token too young to be issued most forms of photo identification. These children are not applying for employment authorization in order to seek employment, but in order to facilitate their application for a social security number and for medical coverage, among other things. The newly inflexible identification requirements proposed here would be particularly difficult for children, who tend to have non-photo identification and may face particular obstacles in obtaining passports, for example (e.g. in a case where the child is seeking protection from abuse by a parent who would need to authorize the issuance of the passport).
USCIS should make clear in the instructions to this form, and in the guidance it gives to its own staff, that the requirement to provide copies of these documents does not apply to asylum applicants, asylees or refugees, or other vulnerable categories such as applicants for Special Immigrant Juvenile Status (SIJS) or T or U visas, or persons granted withholding of removal, unless they already have these documents in their possession.
The Provisions in the Instructions with Respect to Proof of Arrests and Conviction for Asylum Applicants Raise Due Process Concerns
The revised instructions indicate that asylum applicants must provide proof of any arrests and/or convictions, that anyone who has been convicted of an aggravated felony is not eligible for employment authorization under eligibility category (c)(8), and that USCIS will make the determination whether a conviction meets the aggravated felony definition. But for applicants in removal proceedings, USCIS is not the ultimate arbiter of that question, which will be decided by the immigration judge as part of the asylum adjudication.
In addition, the new proposed instructions state that “USCIS may, in its discretion, deny your application if you have been arrested and/or convicted of any crime.” While the statute states that employment authorization may be provided to asylum applicants under regulation by the Attorney General, we do not see any basis in the statute or the regulations for USCIS to deny employment authorization in an individual case as a matter of discretion based on conviction of a crime that would not bar asylum. Moreover, the notion of denying a person employment authorization based on the mere fact of an arrest not leading to conviction is in obvious tension with the presumption of innocence that applies to criminal proceedings. We regularly represent asylum applicants who are wrongly arrested on charges that are then dismissed, often after a considerable period of time (given the slow-moving nature of the criminal process in many states). Denying these applicants employment authorization on the basis of their arrest would have a devastating impact on them and their families.
Final Smaller Notes
With respect to persons applying for employment authorization based on a final order of removal, the proposed instructions provide a helpful clarification that not all of these applicants may be under orders of supervision (as many are not, typically because they were never detained), and that providing a copy of such order is not a requirement for the I-765. We appreciate this clarification.
Page 16 of the proposed new instructions, on the other hand, provides confusing or incorrect guidance on how applicants are supposed to respond to the question on the form that asks for their “place of birth:”
First, the proposed instructions ask people to list the name of the country of their birth as it was named at the time, even if the name has changed or the country no longer exists. At least with respect to countries whose names has changed, this contradicts the instructions to the I-589 Application for Asylum and Withholding of Removal, which instruct asylum applicants when completing the application for asylum to list the current name of the country of their birth, NOT historical names. We are concerned that this will create bureaucratic complications for asylum applicants from, say, the Democratic Republic of the Congo who were born in that country when it was named Zaire, whose country of birth will appear differently on different USCIS applications (we are concerned, among other things, with conflicts that may arise when these same applicants then try to apply for social security numbers or drivers’ licenses).
Second, the instructions then list two points that, while they appear under the instructions for items 15a-15c (“Place of birth”) appear to apply rather to Item 14 (“Country or Countries of Citizenship or Nationality”). The first instructs applicants who are stateless to “type or print the name of the country where you were last a citizen or national.” Where a person was born often has nothing to do with his or her citizenship or nationality, if any—indeed, this fact is a contributing factor to the problem of statelessness. This instruction would therefore appear to be directed at item 14. But even there, the instruction does not make sense: a significant proportion of stateless people have never in their lives been a citizen of any country, and it is quite unclear under this instruction how those individuals (e.g. stateless Palestinians, or children of Tibetan refugees from the People’s Republic of China who were born in Nepal) are expected to respond to this question. We would strongly recommend that the instructions direct stateless people to fill in the current name of the country of their birth under Item 15, and fill in “Stateless” in response to Item 14e.
Conclusion
Human Rights First appreciates the opportunity to provide comments on these proposed revisions to Form I-765 and its accompanying instructions. We urge USCIS to recognize the practical realities and vulnerabilities of asylum applicants and other vulnerable populations who need to obtain employment authorization in order to survive, avoid increasing the burden of paperwork and confusion on these vulnerable applicants and those who seek to assist them, and not create substantive bars to employment authorization in violation of existing law. |
Response: Thank you for your comments. Many of the issues you raise have been addressed above. Responses to unique issues you raise are provided below.
USCIS must be able to adjudicate each form on its own, as forms are not always filed together as a package. Also, forms submitted together are not always kept together throughout the adjudication process.
USCIS may take these recommendations into consideration for a future revision. |
Comment 80. |
Commenter: Kathy Singh , International Student & Scholar Advisor/ARO/DSO |
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SUMMARY: I support a redesign of the Form I-765 but I am recommending the following modifications to the redesign before the final version is published.
Part 2, Item 1: Make the fields on the I-765 consistent with the fields on the EAD. The name fields on the EAD are “Surname” and “Given Name” and it would be clearer if the name fields on the I-765 included “Surname” in addition to Family Name (Last Name). In addition, for the Social Security Number, the Social Security Administration has removed the Middle Name portion on their card. The first and middle names are all one field as it is on the Certificate of Eligibility Forms I-20 and DS-2019s. Most passports now refer to first and middle names as Given Names. Therefore, it would clearer if the First and Middle were combined and re-labeled. Here are my suggested changes to the 10/10/17 draft:
Part 2, Items 12 & 13 Make all name fields on the I-765 consistent with suggestions for Part 2, Item 1. Here are my suggested changes to the 10/10/17 draft:
Part 2, Item 20 Item 20.c. asks for the date that the most recently filed form I-765 was adjudicated. Where can the applicant find this information? There is a date on the paper to which the EAD is attached for mailing. Is this the adjudication date or the card printing date? Please add instructions to form indicating where this information can be found.
Part 2, Item 21 Item 21.c. asks for “Travel Document Number” which is something that not all applicants will have. Please add the phrase “(if any).”
This section doesn’t appear to be necessary for the purpose of this form. The I-766 is not to be used as an identity document but merely as a work authorization document. Why is this information being collected? How will it be used?
If this information is being requested because the I-766 will be allowed to be used as a primary identity document, then I suggest that Foreign Nationals may not identify their race and ethnicity as U.S. Citizens do. Therefore, the choices given seem to be insufficient or confusing from a Foreign National point-of-view. I suggest clarifying the instructions and adding options that would make more sense to someone who is not a U.S. citizen.
Finally, does the eye color ‘maroon’ or ‘pink’ truly exist biologically in any human being? This makes no sense. I strongly suggest eliminating those 2 choices if this section is to be kept which I repeat I think is unnecessary for the purpose of this form.
In closing, I would like to thank DHS for inviting me to participate in this public comment period and look forward to seeing the new form after the comments received from me and from other interested parties have been taken into account.
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Response: Thank you for your comment. Many of the issues you raise have been addressed above. Responses to unique issues you raise are provided below.
Part 2, Item 1 USICS is not making these changes to Form I-765 at this time.
Part 2, Items 12 & 13 USCIS is not making these changes to the form at this time.
Part 2, Item 21 We have added “(if any)” to the Travel Document field. |
Comment 81. |
Commenter: Gloria Contreras Edin
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I am concerned about the amendments to the I-765 Employment Authorization form and instructions that affect asylum seekers. First, there is now a requirement to provide a passport or US or foreign government issued ID, which now applies to those with asylum pending or withholding granted (as well as to SIJ, T and U nonimmigrants). This is problematic for asylum seekers, in particular, or those fleeing persecution (who are also granted withholding) because often asylum seekers have been forced to flee without their identifying documentation or they have been destroyed or stolen en route. Often the work authorization is the first government issued ID they are able to obtain. These asylum seekers may have a desperate need to work pending delays in adjudicating their cases, particularly given the lack of social services and assistance for noncitizens. Delaying work authorization for otherwise eligible asylum seekers because they are unable to obtain an ID would cause these asylum seekers and their families great harm, and place further burdens on already overstrained social service providers. Further, replacing these documents may put an asylum seeker at risk if they approach their home government, or at risk of later being accused of "reavailment" by the U.S. government. The work authorization application should not place asylum seekers in more danger by having them approach their own government for documents, or harm their own cases by doing so. |
Response: Thank you for your comment. Please see above for our response to the issue you raise.
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Comment 82. |
Commenter: Aliya Karmali
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The proposed rule is not practicable nor is it fair to immigrant applicants seeking lawful work authorization. Creating extra hurdles for a basic benefit that would contribute to the country's economy and potentially exclude millions of otherwise eligible applicants would only do harm to their families, including U.S. citizen children in need of financial support from their parents. Criminalizing applicants would similarly only drive down possibilities for lawful work, further destabilizing communities and placing them at risk for violence. |
Response: This is not a proposed rule; it is a proposed revision to a currently available form a foreign national may use to request an employment authorization document from USCIS. |
Comment 83. |
Commenter: Joshua Doherty
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I am concerned about the amendments to the I-765 Employment
Authorization form and instructions that affect asylum seekers.
First, there is now a requirement to provide a passport or US or
foreign government issued ID, which now applies to those with
asylum pending or withholding granted (as well as to SIJ, T and U
nonimmigrants). This is problematic for asylum seekers, in
particular, or those fleeing persecution (who are also granted
withholding) because often asylum seekers have been forced to flee
without their identifying documentation or they have been
destroyed or stolen en route. Often the EAD is the first
government issued ID they are able to obtain. These asylum seekers
may have a desperate need to work pending delays in adjudicating
their cases, particularly given the lack of social services and
assistance for noncitizens. Delaying work authorization for
otherwise eligible asylum seekers because they are unable to
obtain an ID would cause these asylum seekers and their families
great harm, and place further burdens on already overstrained
social service providers. Further, replacing these documents may
put an asylum seeker at risk if they approach their home
government, or at risk of later being accused of "reavailment"
by the U.S. government. The work authorization application should
not place asylum seekers in more danger by having them approach
their own government for documents, or harm their own cases by
doing so. This is also problematic for SIJS applicants where these
children require consents from both parents when seeking a form of
relief that necessarily implies that at least one parent is a bad
actor. It is thus often impossible for SIJS applicants to obtain a
passport or national ID document until reaching the age of
majority as determined by their home country. T-visa applicants
are often susceptible to having had their travel and identity
documents stolen or withheld by abusive employers and so are also
unlikely to have a passport. |
Response: Thank you for your comment. The issues you raise are addressed above.
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Comment 84. |
Commenter: Alison Jackson
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Summary: Some changes will be quite helpful and I appreciate them.
However, the new I-765 will increase the amount of time it takes
for an applicant to complete the form, asks questions that will
lead to unconscious bias or intentional discrimination, and
further clarification or changes are needed in all Parts. 20.d.) Please add an option for the
student to mark that an application was withdrawn. If it will
remain as is, clarify if this information should be added in Part
7. She also mentions that in Part 2, Eligibility Category 28.a., please clarify if you require the degree level, major, and/or CIP code.
As for Part 3, Biographic Information, the information
requested is unnecessary to the adjudication of employment
benefits and leaves open either intentional or unconscious bias.
The racial constructs in the US are very uniquely a US centric
issue and often perceived very differently by foreign nationals.
This point and others is eloquently mentioned in Elizabeth Madden,
University of Minnesota- Twin Cities response, ID:
USCIS-2005-0035-0105. I agree with all of their points and
encourage you to take heed. |
Response: Thank you for your comment. Many of the issues you raise have been addressed above. Responses to unique issues you raise are provided below.
Part 1 USCIS is not adding a field for USPS Tracking Number at this time, but may take this recommendation into consideration for a future revision.
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Comment 85. |
Commenter: Lynne Vanahill, University of Kansas
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This is a cover page. See the attachment for my complete, specific
comments.
Specific comments and recommendations from the pdf document (inserted by SCOPS/MLY) red font part of original comment or proposed change
I would like a clear procedure on how and to whom we can make suggestions for interim changes made in between public comment periods.
Changes are being made to the I-765 on a regular basis without an opportunity for public comments every time a change is made. For example, the inclusion of SSN card applications was welcomed; however, the name fields were drastically shortened and that was problematic. Since there was not a public comment period, I struggled to find an effective way to provide feedback.
Since the instructions refer applicants to the USCIS website, especially for Where to File, please take these website comments into consideration as well.
https://www.uscis.gov/i-765 Where to File Consider adding “Applicant’s Signature” to the bullet list of items that cannot be missing or the application will be rejected.
I love the filing tips that explain the most common reasons a form is rejected. It is short and easy to read, although I think it may be worth adding signature as one of the bulleted points. Eyes tend to go just to the bullet list and they may not notice the statement in bold under the bullets. Consider creating an interactive tool where the applicant could enter the eligibility code and state of residence and the correct mailing address would appear. There are so many options and it is a bit clunky (MANY clicks) to get to the right address. • I was reading in the instructions where to file. • Then I was sent to the website. • Then I click on Where to File • Then I click on “filing locations for Form I-765” hyperlink which is hidden in the middle of a sentence • Then I click on Foreign Students (which is NOT intuitive if you are the dependent of a J-1 Research Scholar) • Then I had to find the right category • Then I click on “USCIS Phoenix and Dallas Lockbox facilities chart” hyperlink • Then I had to find Kansas in a long list before I got the Phoenix Lock Box address
Instructions Pages 3-4 Who May File Form I-765? Foreign Students Categories
Renumber your groups for accuracy. For example, Paragraphs D ,E, F and G are NOT subcategories of 1. F-1 Optional Practical Training.
Paragraphs A, B & C do fall under 1. F-1 Student Seeking Optional Practical Training. Paragraphs D & E apply to F-1 students; however, they are NOT types of OPT. Paragraph F applies to J-2 and paragraph G applies to M-1 students. Neither should fall under F-1.
Proposed change: 1. F-1 Student Seeking Optional Practical Training (OPT) in a Position Directly Related to Major Area of Study A. Pre-Completion OPT - (c)(3)(A) B. Post-Completion OPT - (c)(3)(B) C. 24-Month OPT Extension for STEM Students - (c)(3)(C) 2. F-1 Student Offered Off-Campus Employment Under the Sponsorship of a Qualifying Int'l Organization - (c)(3)(ii) 3. F-1 Student Seeking Off-Campus Employment Due to Severe Economic Hardship - (c)(3)(iii) 4. J-2 Spouse or Minor Child of an Exchange Visitor - (c)(5) 5. M-1 Student Seeking Post-Completion OPT After Completiong Studies - (c)(6) OR 1.F-1 Students A. F-1 Pre-Completion OPT - (c)(3)(A) B. F-1 Post-Completion OPT - (c)(3)(B) C. F-1 24-Month OPT Extension for STEM Students - (c)(3)(C) D. F-1 Student Offered Off-Campus Employment Under the Sponsorship of a Qualifying Int'l Organization - (c)(3)(ii) E. F-1 Student Seeking Off-Campus Employment Due to Severe Economic Hardship - (c)(3)(iii) 2. J-2 Spouse or Minor Child of an Exchange Visitor - (c)(5) 3. M-1 Student Seeking Post-Completion OPT After Completiong Studies - (c)(6)
Instructions Pages 3-4 Who May File Form I-765? Foreign Students Categories
Use consistent terminology when referring to Form I-20.
Sometimes Form I-20 is used. Sometimes SEVIS Form I-20 is used. Only once is it referred to its full, formal name Certificate of Eligibility of Nonimmigrant Student Status.
Form I-20A-B and Form I-20 ID are obsolete now.
Instructions Pages 3-4 Who May File Form I-765? Foreign Students Categories
Spell out the acronym for DSO in a header paragraph instead of the first eligibility category. Applicants applying under other categories will not be reading the first category if it does not apply to them.
In the first paragraph about pre-completion OPT it is explained a DSO is a Designated School Official; however, most people applying under the other categories (e.g. economic hardship) will not be reading about pre-completion OPT and will not have read the full description.
Proposed change: 1. F-1 Students In all F-1 categories below, the student must include Form I-20, Certificate of Eligibility for Nonimmigrant Student Status signed by a Designated School Official (DSO) with a recommendation for the appropriate work authorization category.
A. Pre-Completion OPT--(c)(3)(A)…. You must include a Form I-20 endorsed by the DSO before filing Form I-765.
B. Post-Completion OPT--(c)(3)(B)... You must include a Form I-20 endorsed by the DSO within 30 days before filing Form I-765. Etc.
Instructions Page 3 Who May File Form I-765? Foreign Students Categories Paragraphs 1.A. and 1.B.
Remove the request to include all previously used Student and Exchange Visitor Info System (SEVIS) numbers.
This is not required by regulation. I think maybe you want evidence of full-time CPT and OPT since it can impact the eligibility for OPT and these may be tied to a previous SEVIS number. Therefore, it is appropriate to ask for proof of previous full-time CPT and OPT, but not previous SEVIS ID numbers. A student may have had three previous SEVIS ID numbers and never had CPT or OPT. In this case, why would the previous SEVIS ID numbers be necessary?
Instructions Page 3 Who May File Form I-765? Foreign Students Categories Paragraphs 1.A. and 1.B.
Only request evidence of CPT if it was full time.
Part-time CPT does NOT affect OPT eligibility so the student shouldn’t be burdened with providing proof of part-time CPT authorization. Similarly, on-campus work authorization doesn’t affect OPT eligibility and you’re not asking for proof of on-campus work authorization. It seems only necessary to request work authorizations that can impact OPT eligibility. You can even highlight the word full to emphasize evidence of full time CPT is required.
Proposed change:
Instructions Page 3 Who May File Form I-765? Foreign Students Categories Paragraphs 1.A.
Thank you for adding the filing time frame!
Even though we tell students, it is helpful to have the timeframe filing restrictions in the instructions as well since the application fee is accepted and the application is denied if the student files outside the filing timeframe.
Instructions Page 3 Who May File Form I-765? Foreign Students Categories Paragraphs 1.A.
Mention the I-20 needs to include a recommendation for the OPT.
On the surface, it sounds like a student can include their most recent I-20 endorsed by a DSO, even without an OPT recommendation.
Instructions Page 3 Who May File Form I-765? Foreign Students Categories Paragraphs 1.B.
Thank you for adding the filing time frame!
I appreciate you mentioned the filing timeframe (90 days before-60 days after program end date) AND that you mention that the DSO's signature is only valid for 30 days. It reaffirms what we are telling the students.
Instructions Page 3 Who May File Form I-765? Foreign Students Categories Paragraphs 1.B.
Clarify program end date means the end date in SEVIS.
Students may have a personal program end date in their mind and not realize you are referencing a specific date called Program End Date on the new OPT I-20 and in SEVIS.
Proposed change: B. Post-Completion OPT--(c)(3)(B). File Form I-765 up to 90 days before, but no later than 60 days after, your Program End Date, as indicated in SEVIS.
Instructions Page 3 Who May File Form I-765? Foreign Students Categories Paragraphs 1.C.
In the bolded description header, add the word “OPT” after 24-Month
It should read 24-Month OPT Extension for STEM Students… It helps to clarify it is an Optional Practical Training Extension.
Proposed change: C. 24-Month OPT Extension for STEM Students (Students With a Degree in Science, Technology, Engineering, or Mathematics)--(c)(3)(C).
Instructions Page 3 Who May File Form I-765? Foreign Students Categories Paragraphs 1.C.
Remove the comment that the application can be filed “but no later than 60 days after your program is complete”
In the regulations, the deadline you are referencing is for the initial 12 months of post-Completion OPT – not the STEM OPT extension. They need to file 90 days before their current OPT expires. See 8 CFR 214.2(f)(11)(i)(B)&(C).
Proposed change: C. 24-Month
Extension for STEM Students (Students With a Degree in Science,
Technology, Engineering, or Mathematics)--(c)(3)(C). File Form
I-765 up to 90 days before the expiration of your current OPT,
Instructions Page 3 Who May File Form I-765? Foreign Students Categories Paragraphs 1.C.
Clarify these two sentences: “Include evidence the degree that is the basis for the current OPT is in one of the degree programs currently listed on the STEM Designated Degree Program List.” and “NOTE: If you are applying for a STEM OPT extension based on a previously earned STEM degree, you must also include a copy of your prior STEM degree…” 1) It sounds like you are asking for the same thing twice. I assume you are asking for proof the degree which is the basis for the current application is in a STEM field. I think this could be condensed to one sentence that would apply if the student is applying based on a current or prior STEM degree. 2) In the first sentence, “for the current OPT” should perhaps say “for the OPT extension”. It sounds like you are asking for proof the initial 12-months of post-completion OPT (in which the student is currently on) is in a STEM field. That is not accurate. A student can be on 12-months of post-completion OPT based on a non-STEM degree and still be eligible to apply for a 24-month OPT extension based on a prior STEM degree. 3) In the NOTE: you don’t need to say “also include a copy of your prior STEM degree”. “Include evidence the degree that is the basis for the current OPT” is mentioned in the preceding paragraph. As I mentioned above, it is redundant. You could mention if they are applying based on a prior degree, they also need evidence the institution is accredited and certified by SEVP, but there is no need to mention again you need evidence the degree for the basis of the application is on the STEM list.
Proposed change: C. 24-Month Extension for STEM Students... Include evidence the degree that is the basis for the current OPT extension application is in one of the degree programs currently listed on the STEM Designated Degree Program List.
NOTE: If you are
applying for a STEM OPT extension based on a previously earned
STEM degree, you must also include
Instructions Page 3 Who May File Form I-765? Foreign Students Categories Paragraphs 1.E.
Remove the request for items (1)-(6) because a DSO’s recommendation in SEVIS certifies all 6 items.
In the opening paragraph, you request a SEVIS Form I-20 including the DSO certifying eligibility. The I-20 is evidence with DSO certification is evidence items 1-6 have been met. A DSO CANNOT recommend a student for employment based on economic hardship unless the DSO clicks a checkbox in SEVIS confirming the student has met the academic year requirement. Additionally, a DSO is bound by regulations to certify the student meets all the criteria mentioned in 1-6.
8CFR 214.2(f)(9)(ii)(D) says: (D) Procedure for off-campus employment authorization due to severe economic hardship. The student must request a recommendation from the DSO for off-campus employment. The DSO at a non-SEVIS school must make such a certification on Form I-538, Certification by Designated School Official. The DSO of a SEVIS school must complete such certification in SEVIS. The DSO may recommend the student for work off-campus for one year intervals by certifying that: (1) The student has been in F-1 status for one full academic year; (2) The student is in good standing as a student and is carrying a full course of study as defined in paragraph (f)(6) of this section; (3) The student has demonstrated that acceptance of employment will not interfere with the student's carrying a full course of study; and (4) The student has demonstrated that the employment is necessary to avoid severe economic hardship due to unforeseen circumstances beyond the student's control pursuant to paragraph (f)(9)(ii)(C) of this section and has demonstrated that employment under paragraph (f)(9)(i) of this section is unavailable or otherwise insufficient to meet the needs that have arisen as a result of the unforeseen circumstances.
8CFR 214.2(f)(9)(ii)(F) reaffirms the DSO’s certification: (F) Severe economic hardship application. (1) The applicant should submit the economic hardship application for employment authorization on Form I-765, with the fee required by 8 CFR 103.7(b)(1), to the service center having jurisdiction over his or her place of residence. Applicants at a non-SEVIS school should submit Form I-20, Form I-538, and any other supporting materials such as affidavits which further detail the unforeseen circumstances that require the student to seek employment authorization and the unavailability or insufficiency of employment under paragraph (f)(9)(i) of this section. Students enrolled in a SEVIS school should submit the SEVIS Form I-20 with the employment page demonstrating the DSO's comments and certification. Proposed change: E. F-1 Student
Seeking Off-Campus Employment Due to Severe Economic
Hardship--(c)(3)(iii). File Form I- 765 with a SEVIS Form I-20
that includes the employment page completed by the DSO certifying
eligibility for off-campus employment due to severe economic
hardship caused by unforeseen circumstances beyond your control.
Instructions Page 3 Who May File Form I-765? Foreign Students Categories Paragraphs 1.E.
Move the NOTE explaining that changing ed levels or transferring terminates OPT to the three sections about OPT. (paragraphs A, B, and C)
Thank you for adding this important note. Unfortunately, it is lost if it is under a paragraph on economic hardship which has nothing to do with OPT.
Instructions Page 14 General Instructions Validity of Signatures
Thank you for adding that the form must be hand-signed, but that a copy of the hand-signed signature is acceptable.
We've always insisted on the original I-765 with original signature, but I can see where, in extenuating circumstances, it may be helpful to send a copy.
Instructions Page 14 General Instructions Copies
Thank you for clarifying copies are acceptable (in most cases) and originals should not be submitted or they may be destroyed.
I appreciate your clarity on this issue.
Instructions Page 14 General Instructions Translations
Thank you for the clarification on what documention is expected for translated documents.
Clarification of expectations is always helpful.
Instructions Page 15 General Instructions How to Fill Out Form I-765
Thank you for giving examples of when to use N/A vs None.
In the past it was a little vague when to use each. This helps.
Instructions Page 15 Specific Instructions Part 1. Reason for Applying Item Number 1.b. NOTE:
Clarify what section the Replacement for Card Error instructions are in.
It seems odd Form I-765 has more detailed instruction on where to look than the instructions.
Proposed change: NOTE: Replacement (correction) of an employment authorization document due to USCIS error does not require a new Form I-765 and filing fee. Refer to the Replacement for Card Error in the What is the Filing Fee section of these Instructions for further details.
Instructions Page 15 Specific Instructions Part 2. Information About You Item Number 1.a.-1.c.
Add passport as a source for full legal name.
You mention only birth certificate or legal change of name document. Passport is more commonly used than birth certificate for purposes of the full legal name for F-1 students. I assume the same would be true for most other applicants as well.
Proposed change: Item Numbers 1.a. - 1.c. Your Full Name. Provide your full legal name as shown on your passport, birth certificate or legal change of name document in the spaces provided.
Instructions Page 15 Specific Instructions Part 2. Information About You Item Number 1.a.-1.c. Your Full Name
Clarify if it is appropriate to write None if a person doesn't have a Family, Given or Middle name.
I assume name fields may be typed in by contract workers at the time of receipt and if NONE is in a middle name field, for example, "None" may become part of the applicant's name on the EAD. If so, consider having a checkbox for "No Given Name" and "No Family Name".
Proposed change: Item Numbers 1.a. - 1.c. Your Full Name. Provide your full legal name as shown on your birth certificate or legal change of name document in the spaces provided. If you do not have a given or family name, write "None" in the appropriate space.
Instructions Page 15 Specific Instructions Part 2. Information About You Item Numbers 2.a.-3.c. Other Names Used
Include "aliases" in instructions.
Since you mention aliases on Form I-765, you should also include aliases in the instructions.
Proposed change: Item Numbers 2.a. - 3.c. Other Names Used. Provide other names you have used since birth, including, aliases, your maiden name, any nicknames, and any names that appear in your documents. If you need extra space, use Part 7. Additional Information to provide other names used.
Instructions Page 15 Specific Instructions Part 2. Information About You Item Numbers 4.a.-4.f. U.S. Mailing Address
Explain what "In Care of Name" means and how to use it.
With my F-1 students, I find it is a foreign concept and they have no idea what to put in that field. They often write their own name.
Proposed change: Item Numbers 4.a.
- 4.f. U.S. Mailing Address... If your mail is sent to someone
other than yourself, please include the
other person's name in the
Instructions Page 15 Specific Instructions Part 2. Information About You Item Numbers 5.-6.e. Physical Address
Clarify if one should write N/A in 6.a. (the physical address) if they mark Yes to question 5 which asks if the current mailing address is the same as the physical address.
I assume you want N/A if the applicant indicates their physical and mailing address are the same. Do you expect N/A in all fields 6.a. through 6.e. or is it sufficient to just put it in 6.a.?
Proposed change: Item Numbers 5. - 6.e. Physical Address. Type or print your physical address in the spaces provided. In Item Number 5, if you answered "No", provide your physical address in Items 6.a. to 6.e.
In Item Number 5, if you answered "Yes", write "N/A" in Item 6.a. and proceed to Item 7.
Instructions Page 16 Specific Instructions Part 2. Information About You Item Number 7 Alien Registration Number (A-Number)
Clarify if the A-Number should be left blank or if the applicant should be writing "None" or "N/A" if the applicant does not have one.
In the How to Fill Out Form I-765 (Item 3) the applicant is instructed to use None or N/A; however, these instructions say to leave it blank. The instructions seem contradictory.
Proposed change: Item Number 7. Alien Registration Number... If you do not have an A-Number, write none. If you cannot remember it, leave this space blank.
Instructions Page 16 Specific Instructions Part 2. Information About You Item Numbers 9.a. - 13.b. Questions regarding Social Security Number (SSN)
Clarify what to do if the person has an SSN but cannot remember the number.
The first paragraph says you must enter the SSN from your card; however Form I-765 says (if known).
Proposed change: Item Numbers 9.a. - 13.b. Questions regarding Social Security Number (SSN)…. If the SSA ever
issued a Social Security card to you in your name or a previously
used name such as your maiden name, then
Instructions Page 16 Specific Instructions Part 2. Information About You Item Numbers 14.a. - 14.d. Country or Countries of Citizenship or Nationality.
Correct the typo from Item 14.d. to 14.b.
The instructions address 14.a through 14. d; however, Form I-765 only has a 14.a and a 14.b.
Instructions Page 16 Specific Instructions Part 2. Information About You Item Numbers 15.1. - 15.d Place of Birth
Move items 1 and 2 (below) from Place of Birth to Country of Citizenship because they seem to apply to country of citizenship and not country of birth: 1. If you are stateless, type or print the name of the country where you were last a citizen or national. 2. If you are a citizen or national of more than one country, type or print the name of the foreign country that issued your last passport.
Instructions Page 16 Specific Instructions Part 2. Information About You Item Numbers 16. Date of Birth
Instead of trying to explain how to put a date of birth in the U.S. format (because the rest of the world uses a different order), it would be more fruitful to provide a drop down menu for month, for day and for year or at a minimum have three separate fields: Month Day and Year.
Proposed change: Item Number 16. Date of Birth. Enter your month, day and year of birth in the appropriate fields.
Instructions Page 16 Specific Instructions Part 2. Information About You Item Numbers 17. Sex
Make the form more inclusive. Ask for gender instead of sex and include a blank for other options to be included. Even if you keep "sex" you should include an "other" option.
According to a gallup poll published in January 2017, there are 10 million Americans who identify as gay, lesbian, bisexual or transgender which is about 4.1% of our population. This percent is significant enough it warrants offering more than two options. http://news.gallup.com/poll/201731/lgbt-identification-rises.aspx
Proposed change: Item Number 17. Gender. Select the box that indicates whether you indentify as a man or woman. If you do not identify as either a man or a woman, you can choose other and provide a short description for your gender identity.
Instructions Page 17 Specific Instructions Part 2. Information About You Item Numbers 19. -20.d. Previous Application for Employment Authorization from USCIS.
Reiterate you only want authorization granted by USCIS and mention you are only interested if they have filed an I-765.
The Form I-765 asks directly "Have you previously filed Form I-765?" so the form itself is pretty clear; however, the instructions should also clarify the distinction of the type of authorization wanted. This description "Previous Application for Employment Authorization from USCIS" seems to be a carryover from the old Form I-765 which used to ask: Have you ever before applied for employment authorization from USCIS?
Proposed change: Item Numbers 19. - 20.d. Previous Application for Employment Authorization from USCIS. If you have applied for employment authorization from USCIS in the past on Form I-765, select “Yes” and complete Item Numbers 20.a. - 20.d.
Instructions Page 17 Specific Instructions Part 2. Information About You Item Numbers 19. -20.d. Previous Application for Employment Authorization from USCIS.
Consider removing which office adjudicated a previous I-765 since you ask for the receipt number. Or only ask the adjudicating office if the applicatn doens't have the receipt. Perhpas if you really want the appropriate Service Center, include the 3 letter clue in the receipt numbers.
F-1 students mail their application to a lockbox and have no idea which service center adjudicated their I-765. If the applicant includes the receipt number, it is obvious which service center adjudicated the application.
Instructions Page 17 Specific Instructions Part 2. Information About You Item Numbers 21.a. - 21.e. Form I-94 Arrival-Departure Record.
Either remove the I-94 expiration date from the instructions or add the I-94 expiration date to the I-765. If you add the expiration date to the I-765, be sure to include a check box for those with D/S instead of a specific departure date.
Proposed change: Item Numbers 21.a. - 21.e. Form I-94 Arrival-Departure Record. If CBP or USCIS issued you a Form I-94, Arrival-Departure Record, provide your Form I-94 number. The Form I-94 number also is known as the Departure Number on some versions of Form I-94. [IF YOU ADD THE I-94 EXPIRATION DATE TO THE I-765]: Provide the date that your authorized period of stay expires or expired (as shown on Form I-94). If you have "D/S" (Duration of Status) on your I-94 instead of a specific departure date, check the "D/S" box and leave the date blank (or write n/a).
Instructions Page 17 Specific Instructions Part 2. Information About You Item Numbers 21.a. - 21.e. Form I-94 Arrival-Departure Record.
Separate Passport/Travel Document questions from I-94 questions. They are not the same and don't really make sense to all be labeled "I-94 and grouped together.
Clarify what "country that issued passport" means.
Often F-1 students think that means the place of issuance, especially if they are renewing their passport in a third country. I think the instructions are a good place to emphasize it is more about who is issuing the document rather than where.
Proposed change: Item Numbers 21.a. - 21.b. Form I-94 Arrival-Departure Record. If CBP or USCIS issued you a Form I-94, Arrival-Departure Record, provide your Form I-94 number and date that your authorized period of stay expires or expired (as shown on Form I-94).… [The 21.b. assumes you will add I-94 expiration date to the I-765.]
Items 22.a. - 22.d. Passport and Travel Document Numbers. If you used a passport or travel document to travel to the United States, enter either the passport or travel document information in the appropriate space on the application, even if the passport or travel document is currently expired. For country that issued your passport, indicate which country issued your passport. If you had a passport issued in a third country, do not list the country where the passport issued, but rather which country issued the passport.
Instructions Page 17 Specific Instructions Part 2. Information About You Item Number 22. Date of Your Last Arrival Into the United States.
You will get more accurate dates if you provide drop down menus or at least separate fields for Month Day and Year.
Form I-765 gives more details than the instructions regarding date of last arrival. Consider clarifying it is appropriate to estimate if the exact date is not known. Would you like the applicant to clarify (perhaps via a checkbox) if the date is an estimate?
Proposed change: Item Number 22. Date of Your Last Arrival Into the United States. Provide the date on which you last entered the United States in mm/dd/yyyy format. If you cannot remember the exact date you entered, you can enter the approximate date you entered the U.S.
Instructions Page 17 Specific Instructions Part 2. Information About You Item Number 23. Place of Your Last Arrival Into the United States.
Clarify if you really want where they entered the U.S. or where they were inspected?
If you want place of inspection, keep in mind many are overseas and do not have a "state".
Address if you want entry after visa revalidation to Canada, Mexico or the Caribbean listed even though the I-94 may not reflect the most recent entry.
Proposed change: Item Number 23. Place of Your Last Arrival Into the United States. Provide the location where you last entered the United States. Enter where you first arrived, not necessarily where you were inspected. If you have traveled to Canada, Mexico or the Carribbean under Visa Revalidation and did not get a new I-94 upon re-entry, list your most recent entry even if it is not listed on your I-94.
Instructions Page 17 Specific Instructions Part 2. Information About You Item Number 24. Immigration Status at Your Last Arrival
Be consistent with the instructions and Form I-765. Clarify if you just want the number/letter code or if you want a description as well.
The instructions say to only list the code (e.g. "B-1"); however, Form I-765 says to list "B-2 visitor" or "F-1 student"
Also, if someone is paroled in, they wont' have a number. They will only have letters.
Be consistent with what is requested in Item Number 25.
Proposed change: Item Number 24. Immigration Status at Your Last Arrival. Provide the letter and number that correlates with your status when you last entered the United States. For example, if you last entered the United States as a temporary visitor for business, B-1, enter the code B-1 in the space provided. This will be indicated on the I-94 you received upon entry to the U.S.
On Form I-765 it says: 24. Immigration Status at Your Last Arrival (for example, B-2, F-1, or no status)
Instructions Page 17 Specific Instructions Part 2. Information About You Item Number 25. Current Immigration Status or Category
Be consistent with the instructions and Form I-765. Clarify if you just want the number/letter code or if you want a description as well.
The instructions say to only list the code (e.g. "F-1"); however, the form says to list "F-1 student"
Also, if someone is paroled in, they wont' have a number. They will only have letters.
Be consistent with what is requested in Item Number 24.
Proposed change: Item Number 25. Current Immigration Status or Category. Provide your current immigration status. For example, if your current status is student academic, F-1, enter the code F-1 in the space provided. This will be indicated on your most recent I-94. If you have obtained a change of status since your last entry, you should refer to the most recent change of status I-94.
On Form I-765 it says: 25. Your Current Immigration Status or Category (for example, B-2, F-1, parolee, deferred action, or no status or category)
Instructions Page 17 Specific Instructions Part 2. Information About You Item Number 26. Student and Exchange Visitor Information System (SEVIS) Number
Clarify if you want the SEVIS ID number if they have ever had one or only if they currently have a SEVIS ID number.
Explain that even though N is part of the SEVIS ID number, it should NOT be included.
Clarify if you want more than one SEVIS ID if the student has had more than one.
Clarify that SEVIS only applies to people who have had F, M, or J status since 2003.
Proposed change: Item Number 26. Student and Exchange Visitor Information System (SEVIS) Number (if any). If you are currently in F, M or J status, enter your current SEVIS ID Number. The number is 11 digits long and begins with N. Do NOT include the N when entering the number. Only provide the 10 numbers.
Instructions Page 17 Specific Instructions Part 2. Information About You Item Number 27. Eligibility Category
Again, Form I-765 gives more instructions than the instructions do. Add more detail to the instructions (at least what is included on the form.) Give examples in the instructions.
Proposed change: Item Number 27. Eligibility Category. Refer to the list of the eligibility categories in the Who May File Form I-765 section of these Instructions. Enter the appropriate letter and number for your eligibility category below (for example, (a)(8), (c)(17)(iii)).
Instructions Page 17 Specific Instructions Part 2. Information About You Item Numbers 28.a. – 28.c. (c)(3)(C) Eligibility Category
Double check with the service center if they REALLY want degree here. We've been told for years to write the CIP Code in where it asks for degree.
If the CIP Code is really what is wanted, you will have to explain what a CIP code is and where to find it on the I-20. It would be helpful to explain the format (e.g. 32.0109)
Clarify the format of an E-Verify Number and explain it is different thatn the company's Tax ID number and EIN.
https://www.uscis.gov/e-verify/questions-and-answers/faq/i-need-my-e-verify-company-id-number-how-do-i-find-it says it is 4-7 numerical characters.
Often companies give students the wrong number and the students don't have a clue it is the wrong number. They are trusting their employers to give them a correct E-Verify Number. We've had applications rejected and denied for supplying an incorrect E-Verify number.
Proposed change: Item Numbers 28.a. - 28.c. (c)(3)(C) Eligibility Category. If you entered eligibility category (c)(3)(C) in Item Number 27., provide the CIP code for your major, if it is available. For newer I-20s, it is a 6-digit number (e.g. 32.0109) and it listed under your major. If it is not listed on your I-20, you may need to ask your DSO for the appropriate CIP code. Also, include your employer’s name as listed in E-Verify, your employer’s E-Verify Company Identification Number or a valid E-Verify Client Company Identification Number in the spaces provided. The E-Verify number will be 4-7 numerical characters long.
Instructions Page 18 Specific Instructions Part 3. Biographic Information
Clarify explicity Biographic Information is optional.
The instructions state that providing this info may reduce the time spent at an AC appointment which implies it is optional.
Clarify F-1 students can skip this section.
Since F-1 students don't get ASC appointments, it seems this info is not necessary for everyone.
Proposed change: Part 3. Biographic Information (Optional) Providing this information may reduce the time you spend at your USCIS ASC appointment as described in the Biometric Services Appointment section of these Instructions. Therefore, if you are required to go for a Biometrics screening, you are encouraged to provide the biographic information requested in Part 3., Item Numbers 1. - 6.
Instructions Page 18 Specific Instructions Part 4. Applicant’s Statement, Contact Information, Declaration, Certification, and Signature Item Numbers 1.a. - 7.b.
Explain why you are asking for a phone number. Add a NOTE that USCIS will NEVER call and ask for money.
In light of current scams, USCIS has repeatedly said publicly "USCIS will NOT call you". If an applicant has given you their phone number on an application, they are more likely to fall victim to a scam knowing your asked for their phone number in regards to their application. If you insist on collecting a phone number, be explicitily clear USCIS will never call and ask for money or threaten to remove someone over the phone.
Proposed change: Item Numbers 1.a. - 7.b. ... Further, you must sign and date your application and provide your daytime telephone number, mobile telephone number (if any), and email address (if any).
NOTE: USCIS will NEVER call you and ask you for money or tell you over the phone you are being put in removal proceedings. We only ask for you number in case we have a question about your application.
Instructions Page 19 Required Documentation Third paragraph starting "If you are required to show economic necessity…"
Proposed change: Add this to Who May File section, Foreign Students Categories, 1.E. F-1 Student Seeking Off-Campus Employment Due to Severe Economic hardship - (c)(3)(iii)
Provide a list of your assets, income and expenses on the Form I-765 Worksheet.
Instructions Page 19 Required Documentation Fourth paragraph starting "Assemble the documents in the folliwng order:"
I believe the check should be attached to the top of the application. If so, switch the order of application and filing fee.
Instructions indicate the fee should come after the application.
Proposed change: Assemble the documents in the following order: 1. The appropriate filing fee, if applicable. See the What Is the Filing Fee section of these Instructions for details. 2. Your properly signed application.
Instructions Page 20 Required Documentation 3.A.
I'm not confident a copy of the I-94 OR passport will be sufficient with any application for an F-1 student.
I've always been told the I-94 is required. By reading this, an F-1 student would only need an I-94 OR a passport. Can you confirm this will be sufficient?
If an F-1 student can truly submit a copy of the passport instead of an I-94, then it is okay as written.
Instructions Page 20 Required Documentation 3.A.
Explain the electronic I-94 in Requied Documentation section and give the URL again on where to receive one.
Most people have an electronic I-94 now and requiring the front and back of the I-94 is only relevant if it is a paper form I-94.
Proposed change: 3. If you are mailing your application to USCIS, you must also submit: A. A copy of at least one of the following documents: Form I-94, Arrival-Departure Record, passport, or other travel document.
I-94 Note: If you were admitted to the United States by CBP at an airport or seaport after April 30, 2013, CBP may have issued you an electronic Form I-94 instead of a paper Form I-94. You may visit the CBP website at www.cbp.gov/i94 to obtain a paper version of an electronic Form I-94. If you have an paper card form, include copies of the front and back of the I-94.
If you are filing Form I-765 under the (c)(9) category, copies of any of the above are not required.
Instructions Page 20 Required Documentation 3.B.
Clarify that 3.B. is really requiring a photo ID and a previous EAD is preferred.
The first time I read this I stopped after "A copy of your last EAD (front and back.)." Period. One assumes the rest of the paragraph is explaining specs on the last EAD. If should be clarified in the opening sentence that an acceptable photo ID is required. Then the rest of the paragraph can clarify the specific alternative IDs.
Proposed change: A copy of your last EAD (front and back) OR acceptable government issued photo ID: If you were not previously issued an EAD, you must submit a copy of a government-issued identity document (such as a passport) showing your picture, name, and date of birth; a birth certificate with photo ID; a visa issued by a foreign consulate; or a national ID document with photo and/or fingerprint. The identity document photocopy must clearly show your facial features and contain your biographical information.
Instructions Page 20 Required Documentation 3.C. Photographs
Remove the redundancy when describing the photo specs.
The following are mentioned twice: two Identical passport-style color white to off-white background
Proposed change: You must submit two identical color passport-style photographs of yourself taken within 30 days of filing this application. The photos must have a white to off-white background, be printed on thin paper with a glossy finish, and be unmounted and unretouched.
The photos must be 2 by 2 inches with full face, frontal view. Head height should measure 1 to 1 3/8 inches from top of hair to bottom of chin, and eye height is between 1 1/8 to 1 3/8 inches from bottom of photo. Your head must be bare unless you are wearing headwear as required by a religious denomination of which you are a member. Using pencil or felt pen, lightly print your name and A-Number (if any) on the back of the photo.
Instructions Page 20 Required Documentation 3.C. Photographs
Clarify if you want the I-94 number on the back of the photos if there is no A-Number.
We've always been told to have our F-1 students write their I-94 on the back of the photos.
Proposed change: Using pencil or felt pen, lightly print your name and A-Number (if any) on the back of the photo. If you don't have an A-Number, you can write your I-94 number.
Instructions Page 25 Address Change
Clarify if an applicant submits a change of address while the I-765 is pending, will the Social Security Administration also be notified of the change in address? If not, instruct the applicant how to notify SSA of the change in address.
Proposed change:
An applicant who is not a U.S. citizen must notify USCIS of his or her new address within 10 days of moving from his or her previous residence. For information on filing a change of address, go to the USCIS website atwww.uscis.gov/addresschange or contact the USCIS National Customer Service Center at 1-800-375-5283. For TTY (deaf or hard of hearing) call: 1-800-767-1833. If you are also applying for a social security number, USCIS will not notify the Social Security Administration (SSA) about changes of address submitted to USCIS. You will also need to notify SSA with your new address. NOTE: Do not submit a change of address request to the USCIS Lockbox facilities because the Lockbox does not process change of address requests.
Instructions Page 25 Processing Information Initial Processing
It is awkward to say the application may be rejected or denied after it is accepted.
I understand you may be hesitant to say "once USCIS receives your application" because maybe you want to preserve the term to reflect once an appliction is receipted. Perhaps you could say "once USICS initially receives." "Accept" and "reject" in the same sentence seems contradictory.
Proposed change: Initial processing. Once USCIS initially receives your application, we will check it for completeness. If you do not completely fill out this application, you will not establish a basis for your eligibility and USCIS may reject or deny your application before it is even receipted.
Form Page 1 START HERE
Clarify if blue ink is acceptable.
My undertanding is blue or black ink is acceptable.
Proposed change: START HERE - Type or print in black or blue ink.
Form Page 1 Part 2. Information About You Your Full Legal Name
Remove "Last" and "First" from name descriptors since cultures are inconsistent in application of putting Family and Given name first.
It is very confusing for a Chinese applicant who puts their Family Name First. When you call the Family Name the same as the Last name, it becomes unclear if the Family Name or the last Name is wanted.
Add an (s) to "name" since many cultures have multiple given names and multiple family names.
Omit middle name.
Middle name can be included as part of a given name. The most common document for official name use is the passport and I can't think of a single example of a passport that singles out "middle" name.
Provide options for individuals with a single name such as a check box for "No Given Name" or "No Family Name"
Proposed change: 1.a. Family Name(s) (Surname) []No Family Name1.b. Given Name(s) []No Given Name
Form Page 1 Part 2. Information About You Other Names Used
Again, don't tie Family with Last Name since they often are not the same in many cultures. Likewise, don't association First Name with Given Name since it is culturally confusing.
Proposed change: 2.a. Family Name(s) (Surname) 2.b. Given Name(s) 2.a. Family Name(s) (Surname) 2.b. Given Name(s)
Form Page 1 Part 2. Information About You Your U.S. Mailing Address
Consider adding a brief explanation of what "in care of" is used for.
I see you have added many other "notes" on Form I-765; probably because many people won't bother to read 27 pages of instructions. Therefore, I think "in care of" is such a unique concept, it would be helpful to explain it to applicants on Form I-765,
The I-539 currently has an "in care of field" and I see a high number of students putting in their own name in the field.
Proposed change:
4.a. In Care of Name (If using someone else's address, list their name here)
Form Page 2 Part 2. Information About You (continued) Your U.S. Mailing Address
Clarify if the applicant marks yes that their physical address is the same as their mailing address they do not need to complete 6.a. to 6.d.
Proposed change: 5. Is your current mailing address the same as your physical address? Yes No
NOTE: If you answered "No" to Item Number 5., provide your physical address below. If yes, skip 6.a-d and go to 7.
Form Page 2 Part 2. Information About You (continued) Other Information Father’s Name ad Mother’s Name
Reconsider the Subheaders under Part 2. Information About You. It seems it would be appropriate to add a subheader for Social Security Number and have both the subheaders Father's Name and Mother's Name removed (since they only need to be answered if the applicant is requesting an SSN card.)
Proposed change: Part 2. Information About You (continued) U.S. Physical Address Other Information Social Security Number Your Country or Countries of Citizenship for Nationality Place of Birth
Form Page 2 Part 2. Information About You (continued) Other Information Father’s Name ad Mother’s Name
Again, don't tie Family with Last Name since they often are not the same in many cultures. Likewise, don't association First Name with Given Name since it is culturally confusing.
Also allow for multiple names by adding an "(s)"
Proposed change: 12.a. Family Name(s) (Surname(s)) 12.b. Given Name(s) 13.a. Family Name(s) (Surname(s)) 13.b. Given Name(s)
Form Page 2 Part 2. Information About You (continued) Place of Birth
Again, provide drop down menus for dates or at least 3 separate fields to avoid confusion of date order since the U.S. is about the only country in the world to use the mm/dd/yyyy format.
This also applies to questions 20.c., 21.e. and 22.
Proposed change: 16.a. Month of Birth (drop down name of months) 16.b. Day of Birth (drop down with 1-31) 16.c. Year of Birth
20.c. Month of Adjudication (drop down name of months) 20.d. Day of Adjudication (drop down with 1-31) 20.e. Year of Adjudication
etc
Form Page 2 Part 2. Information About You (continued) Place of Birth
As I mentioned in the instructions, change the question to Gender and offer "man", "woman" and "other" or at the very least, add "other" as an alternative option to Male and Female for Sex.
Proposed change: 17. Gender Identity: Man Woman Other
Form Page 3 Part 2. Information About You (continued) Information About Your Last Arrival in the United States
Re-evaluate the Subheaders used, especially in Part 2.
They don't seem to accurately group types of information. For example, "Information About Your Last Arrival in the United States" include passport information which could have change since the point of entry (e.g. passport extension). Also "Current Immigration Status" may not have anything to do with "Your Last Arrival" if you have had a change of status within the U.S.
Questions 21.1., 22 and 23 are specifc about last arrival in the U.S. 21.b-21.e. may not apply to the last arrival in the U.S.
Form Page 3 Part 2. Information About You (continued) Information About Your Last Arrival in the United States
Tell students to leave the N off the SEVIS ID Number or add another space for the N or preprint the N before the 11 boxes because the N is part of the number.
Proposed change: 26. Student and Exchange Visitor Information System(SEVIS) Number (if any) N_ _ _ _ _ _ _ _ _ _ _
Form Page 3 Part 2. Information About You (continued) Information About Your Eligibility Category
Clarify if you want Degree or CIP Code for F-1 STEM OPT applicants.
We've been told by the service centers for years to write the CIP code (e.g. 52.0301) in the Degree field. It is not clear if you want the degree title or the ed level or the major. As written, you may get "bachelor of science" or Masters or something else.
Proposed change: 28.a. Major CIP Code (6-digit number) _ _ . _ _ _ _
Form Page 4 Part 3. Biographic Information About You
Clearly state the biographic information is optional.
It is okay to explain how the information is useful and may help the applicant, but it should be clear the info is optional.
Proposed change: Part 3. Biographic Information (Optional)
Form Page 4 Part 4. Applicant’s Statement, Contact Information, Declaration, Certification and Signature
Remove the phone numbers or clearly explain how they will be used.
With so many scams, the applicant may fall victim if someone poses as a USCIS representative about a USCIS application since the applicant knows they provided their phone number in the application.
Proposed change: Applicant's Contact Information Beware of scams. USCIS will NOT call you and ask you for money over the phone. 3. Applicant's Daytime Telephone Number 4. Applicant's Mobile Telephone Number (if any)
Form Page 7 Part 7. Additional Information
Again, don't equate family name with last name and given name with first name. Also, provide the opportunity for multiple names.
Proposed change: 1.a.Family Name(s) (Surname(s)) 1.b.Given Name(s)
Worksheet Opening Paragraph
Consider requesting F-1 Students Applying for Off-Campus Work Authorzation due to Severe Economic Hardship (c)(3)(iii) to also complete the worksheet
Proposed change: If you are applying for employment authorization under the (c)(14, Deferred Action, (c)(33), Consideration of Deferred Action for Childhood Arrivals, or (c)(3)(iii) F-1 Student Seeking Off-Campus Employment due to Severe Economic Hardship, categories, you must complete this worksheet so we can determine whether you have an economic need to work.
Worksheet Part 1. Your Full Name
Again, don't equate family name with last name and given name with first name. Also, provide the opportunity for multiple names.
Proposed changes: 1.a.Family Name(s) (Surname(s)) 1.b.Given Name(s)
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Response: Thank you for your extensive and detailed comments. Some of your recommendations have been addressed – please see our responses to recurring issues above, and also review the Form, Instructions, and Table of Changes posted for 30-day public comment. Other recommended changes are not being made at this time, but may be taken into consideration during future revisions.
To address some of the issues you raise that are not addressed elsewhere:
Regarding telephone numbers: Please note that USCIS asks for daytime and mobile telephone numbers across all forms in the signature sections.
Regarding SEVIS information: All SEVIS numbers are required in order to review all SEVIS records for an applicant.
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Comment 86. |
Commenter: Kelsey Harris, American Immigration Lawyers Association (AILA) |
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To Whom It May Concern: The American Immigration Lawyers Association (AILA) submits the following comments in response to the above-referenced 60-Day Notice and request for comments on the proposed revisions to the Application for Employment Authorization, Form I-765, and the accompanying instructions, published in the Federal Register on October 13, 2017.
AILA is a voluntary bar association of more than 15,000 attorneys and law professors practicing, researching, and teaching in the field of immigration and nationality law. Our mission includes the advancement of the law pertaining to immigration and nationality and the facilitation of justice in the field. AILA members regularly advise and represent businesses, U.S. citizens, lawful permanent residents, and foreign nationals regarding the application and interpretation of U.S. immigration laws. We appreciate the opportunity to comment on this notice and believe that our members’ collective expertise and experience makes us particularly well-qualified to offer views that will benefit the public and the government.
Comments on the I-765 Form Preparer’s Certification While the previous language accompanying the preparer’s signature was straightforward, stating, “I declare that this document was prepared by me at the request of the applicant and is based on all information of which I have any knowledge,” the proposed revisions to the Form I-765 includes the following more expansive language on page 6: By my signature, I certify, under penalty of perjury, that I prepared this application at the request of the applicant. The applicant then reviewed this completed application and informed me that he or she understands all of the information contained in, and submitted with, his or her application, including the Applicant's Declaration and Certification, and that all of this information is complete, true, and correct. I completed this application based only on information that the applicant provided to me or authorized me to obtain or use. The Applicant’s Declaration found on page 4 of the proposed Form I-765 includes similar language: I certify, under penalty of perjury, that all of the information in my application and any document submitted with it were provided or authorized by me, that I reviewed and understand all of the information contained in, and submitted with, my application, and that all of this information is complete, true, and correct. AILA proposes deleting the bold text in the proposed Preparer’s Certification because it is duplicative of language in the Applicant’s Declaration, which is already signed under penalty of perjury. If USCIS objects to removing the bold text, we suggest that the language be revised to be more precise, such as the language found in the Preparer’s Declaration on page 7 of the current the Form I-129.
Comments on the I-765 Instructions Asylees and Refugees Substantial revisions were made to the Special Filing Instructions section for those with pending asylum applications, or those filing in the (c)(8) category, found on page 20 of the proposed Form I-765 Instructions. Significantly, asylum seekers would be required to submit their arrest and conviction records to determine whether the applicant has been convicted of an aggravated felony. Under 8 CFR §208.7(a)(1), and as noted in the instructions, only asylum applicants who have not been convicted of an aggravated felony are eligible for employment authorization. The aggravated felony analysis is an exceptionally complex legal determination, and in accordance with the regulations, such an analysis should be limited only to actual convictions. Therefore, USCIS should amend the I-765 Instructions to remove the requirement that these applicants submit arrest records, when the alleged incident did not result in a conviction.
The Special Filing Instructions for the (c)(8) category also indicate that applicants with pending asylum applications that were filed with EOIR must provide a date-stamped copy of the Form I- 589. This is not a realistic requirement as the asylum application is only date-stamped when it is filed at the window of the court clerk. When an application is filed in court, which it often is, the immigration judge does not stamp the Form I-589, and the court clerk is often unwilling to stamp the application after the fact. Therefore, we suggest that this documentation requirement be removed.
In addition, the proposed I-765 Instructions provide a note on page 15 discussing the option of providing a safe mailing address for VAWA self-petitioners, and T and U visa applicants. While this is a welcome addition to the instructions, we suggest that the option to use a safe mailing address should also be provided for Special Immigrant Juveniles (SIJs), asylum applicants, and individuals granted withholding of removal.
Further, 3.A. of the Required Documentation section on page 20 of the proposed Form I-765 Instructions notes that when submitting a Form I-765 to USCIS, at least one of the following documents must be included: “Form I-94, Arrival-Departure Record (front and back), passport, or other travel document. If you are filing Form I-765 under the (c)(9) category, copies of any of the above are not required.” While the instructions note that submission of one of these documents is not necessary for a (c)(9) applicant, exceptions for other categories of applicants are not provided. We suggest that this section be further amended to note that applicants who do not have these documents, such as an asylum seeker fleeing a war-torn country, alternative identification documentation may be submitted.
It should be noted that USCIS requires applicants with asylum pending or withholding granted (as well as SIJ, T, and U nonimmigrants) to also provide a passport or U.S. or foreign government issued ID. This is problematic for asylum seekers or those fleeing persecution (who are also granted withholding) because often these individuals have left their identity documents behind or the documentation has been destroyed or stolen while traveling. Further, replacing these documents may put an asylum seeker at risk if they approach their home government. In addition to the change noted in the above paragraph, AILA recommends including language in the Required Documentation section on page 20 or the Special Filing Instructions for such applicants noting that, where a passport or foreign government issued ID is not available due to such circumstances, an explanation may be provided in lieu of the documentation.
If the documentation requirements for applicants with pending asylum applications are not changed as suggested, or if an explanation is not accepted in lieu of documentation where it is not available, processing times will be adversely affected. First, because many applicants will not be able to procure certain documents, and applicants filing pro se may not know how to obtain them, this will likely result in the issuance of an increased number of Requests for Evidence (RFEs). This extends the total time for adjudication and will necessarily result in asylum-based EADs taking longer than the required 30-day processing period. Second, requiring submission of additional documents will necessitate additional review time by USCIS officers, which will further increase processing times.
Family-Based Nonimmigrant Categories • Family Unity Program--(a)(13). Page 10 of the proposed Form I-765 Instructions discusses eligibility for applicants in the Family Unity Program. The current form instructions include the following language that has been omitted from the proposed instructions: “If your non-expired Family Unity EAD is lost or stolen, file Form I-765 with proper fee(s), along with a copy of your approval notice for Family Unity benefits, to request a replacement.” We recommend that this language be included in the revised Form I-765 Instructions as it provides needed clarification to applicants.
• LIFE Family Unity--(a)(14). Page 10 of the proposed Form I-765 instructions discusses eligibility for LIFE Family Unity applicants. The revised language states, “[I]f you are applying for initial employment authorization under section 1504 of the LIFE Act Amendments, complete and submit Form I-817. We will issue an EAD if we approve your Form I-817; no Form I-765 is necessary.” We recommend that this language be amended to include the following bolded and italicized text, “If you are applying for initial employment authorization or an extension of such authorization…” In addition, the text from the current I-765 instructions states, “If you are applying for a replacement EAD that was issued under LIFE Act Amendments Family Unity provisions, file Form I- 765 with the required evidence listed in the Required Documentation section of these Instructions.” This language was omitted from the proposed revisions, but we recommend that it be included in the revised Form I-765 Instructions as it provides needed clarification.
Adjustment of Status Categories • Adjustment Applicant--(c)(9). Page 10 of the proposed Form I-765 instructions discusses eligibility for adjustment of status applicants. It includes a new note, the last sentence of which states, “[Y]ou will need to pay the filing fee or obtain a fee waiver for Form I-765 if your Form I-485 is still pending with USCIS and this is not your first EAD as a refugee and you did not pay the Form I-485 filing fee for any reason.” This text is unclear and requires additional clarification for applicants to understand when a fee is required for asylee or refugee I-765 applicants that have applied to adjust status to that of a lawful permanent resident.
Other Categories • Granted Withholding of Deportation or Removal--(a)(10). The current I-765 instructions state, “File Form I-765 with a copy of the Immigration Judge’s order. It is not necessary to apply for a new EAD until 90 days before the expiration of your current EAD.” This entire section was removed from the proposed Form I-765 instructions. This language should be added back in under “Other Categories” on page 11, as it provides helpful instructions to those applicants in this category.
• Applicant for Cancellation of Removal--(c)(10). We appreciate the addition of this section on page 11 of the proposed I-765 instructions. However, it appears that this section replaces a previous section entitled “Applicant for Suspension of Deportation-- (c)(10).” We recommend that the new section be kept, and the previous section be added back in, including its supporting text. Applicants still occasionally apply for suspension of deportation, so it is helpful to have separate instructions for both cancellation of removal applicants and suspension of deportation applicants.
• Final Order of Deportation or Removal, including Deferral of Removal under the Convention Against Torture--(c)(18). This section now requires a copy of the EOIR IJ’s Order of Removal to be submitted. This order is not always accessible to applicants, so we recommend removing this requirement. If USCIS is not amenable to making this change, at a minimum, we suggest amending this section to the following: “File Form I- 765 with a copy of the EOIR IJ’s Order of Removal and Form I-220B, Order of Supervision (if available).”
Conclusion We appreciate the opportunity comment on the proposed changes and we look forward to a continuing dialogue with USCIS on these issues.
Sincerely, THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION |
Response: Thank you for your comment. Many of the issues you raise have been addressed above. Responses to unique issues you raise are provided below.
USCIS is not making any changes to the preparer’s certification at this time. This language is standard across USCIS forms.
Thank you for your comment. Providing evidence of the filing of a Form I-589 with EOIR is not a new requirement. Your comments regarding process may be taken into consideration during future revisions.
We acknowledge that the form is longer, but we don’t feel it will delay adjudications.
The instructions provide as much detail regarding the evidence USCIS needs to adjudicate the application depending on the specific category. Providing information about evidence/documentation in the instructions allows applicants to prepare and submit a complete application with all required documentation. Information about providing secondary evidence when a required document is not available is outlined under “Evidence” in the General Instructions section of the Form I-765 Instructions. If an application is submitted and accepted without the supporting documentation, generally, USCIS will issue an RFE for the evidence.
Family-Based Nonimmigrant Categories Family Unity Program--(a)(13) USCIS has made an edit to the instructions for this category.
LIFE Family Unity--(a)(14) USCIS has made an edit to the instructions for this category.
Adjustment of Status Categories Adjustment Applicant--(c)(9) USCIS has made an edit to the instructions for this category.
Other Categories Granted Withholding of Deportation or Removal--(a)(10) was moved to the Asylee/Refugee Categories (and their Spouses and Children) section of the instructions.
Applicant for Cancellation of Removal--(c)(10) SCOPS: (c)(10) for applicants for cancellation of removal is still included in the instructions. It is located in the Other Categories section of the instructions. No change is being made.
Final Order of Deportation…The instructions include “if any” relating to submitting a copy of the IJ’s Order. |
Comment 87. |
Commenter: Nathaniel Damren
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I am concerned about the amendments to Form I-765 and the
accompanying instructions as they affect asylum seekers. First,
the new proposed requirement that the applicant provide a passport
or US or foreign government issued ID is problematic for asylum
seekers or those fleeing persecution who are granted withholding
of removal because asylum seekers are often forced to flee without
their identifying documents, or have such documents destroyed or
stolen en route to safe havens. Employment authorization cards are
usually the first government-issued ID that asylum seekers are
able to obtain, and--given the lack of social services and
assistance for noncitizens--they are often desperate to work owing
to delays in adjudication of their cases. Delaying work
authorization for otherwise eligible asylum seekers because they
are unable to obtain an ID would cause these asylum seekers and
their families great harm, and place further burdens on already
overstrained social service providers. Further, replacing these
documents may put an asylum seeker at risk if they approach their
home government, or at risk of later being accused of
"reavailment" by the U.S. government. The I-765
application should not place asylum seekers in more danger by
having them approach their own government for documents, or harm
their own cases by doing so. |
Response: Thank you for your comment. Many of the issues you raise have been addressed above.
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Comment 88. |
Commenter: Tatiana Woldman, International Office, University of Texas at Austin |
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It is great to see clarification to many previously ambiguous
parts of this form. However, we do have some concerns with this
document. 1) It is going from a 2 page application to a 7 page
application, making it more time consuming and complicated for
applicants to complete. Please consider this when making the
changes to this from. |
Response: Thank you for your comment. Many of the issues you raise have been addressed above. Responses to unique issues you raise are provided below.
This revision only addresses Form I-765. |
Comment 89. |
Commenter: Michael Kagan
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I would like to offer this comment regarding proposed amendments
to the I-765 Employment Authorization form and instructions that
affect asylum seekers. |
Response: Thank you for your comment. The issues you raise have been addressed above.
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Comment 90. |
Commenter: Diane Eikenberry, National Immigrant Justice Center |
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The National Immigrant Justice Center (NIJC) is very concerned about the amendments to the I- 765 Employment Authorization form and instructions that affect asylum seekers, as well as Special Immigrant Juveniles and T and U nonimmigrants.
First, the form appears to now require an asylum-seeker to provide a passport or US or foreign government issued ID, a requirement which now applies to those with asylum pending or withholding granted (as well as to Special Immigrant Juveniles and T and U nonimmigrants). This is problematic for asylum seekers, in particular, or those fleeing persecution (who are also granted withholding) because often asylum seekers have been forced to flee without their identifying documentation or they have been destroyed or stolen en route. Often the work authorization is the first government issued ID they are able to obtain. These asylum seekers may have a desperate need to work pending delays in adjudicating their cases, particularly given the lack of social services and assistance for noncitizens. Delaying work authorization for otherwise eligible asylum seekers because they are unable to obtain an ID would cause these asylum seekers and their families great harm, and place further burdens on already overstrained social service providers. Further, replacing these documents may put an asylum seeker at risk if they make themselves and their location known to their home government, or at risk of later being accused of "reavailment" by the U.S. government. The work authorization application should not place asylum seekers in more danger by having them approach their own government for documents, or harm their own cases by doing so.
Second, asylum seekers are now required to submit their arrest and conviction records. USCIS is proposing to evaluate the arrest records to adjudicate whether or not someone has been convicted of an aggravated felony. We see nothing in the regulations to support this approach. Moreover, the aggravated felony question is a complex legal determination best made by an immigration judge. It is inefficient for this adjudication to occur twice, and this will lead to unnecessary litigation. Asylum seekers will be forced to challenge work authorization denials based on any USCIS aggravated felony determination in Administrative Procedure Act (APA) actions in Federal District Court, as their hearings before the asylum office or Immigration Judge may be delayed for years. Because District Court rulings would have a preclusive effect on asylum officer and Immigration Judge decisions, the new requirements could create a parallel track of litigation, with the asylum merits being heard by an asylum officer or immigration judge, and the criminal issues being heard separately in the Federal Courts even prior to a decision on asylum. Further, denying someone with criminal charges or convictions the right to lawfully work may actually have a negative effect of drawing them, with no legal means to support themselves, into abusive situations or work environments. For those with even minor offenses, this new requirement will cause even further delays in the already backlogged work authorization queue. The legal determination of the immigration consequences of convictions should remain with the immigration judges for adjudication.
Third, and finally, the option to use a safe mailing address needs to be properly highlighted in the instructions and should be provided for Special Immigrant Juvenile Status (SIJS) and asylum applicants as well as individuals granted withholding of removal, in addition to VAWA, U and T applicants.
These are our primary substantive concerns. NIJC would also raise four procedural concerns: (a) Several changes in the work authorization form and instructions are substantive in nature, but no changes have been proposed in the corresponding federal regulations. Absent such an alteration in the regulations, the form alterations seek to change sub silentio the regulatory rules, which is impermissible under the APA. (b) The Department’s time estimates do not sufficiently reflect the increased time required as a result of the changes in the form and instructions. Specifically, the notice severely underestimates the time required to complete the new form, including tracking down any minor criminal or traffic tickets, including full dispositions. While only a small minority of cases will involve even minor criminal or traffic matters, the time required to complete the form in those cases will be increased by a factor of four or five. We think the time to complete the form, on average, will double. (c) The new form estimates costs that run well into the millions of dollars. Given our estimate that this change will double those costs, the form amendments will clearly trigger costs to the private and non-profit sectors sufficient to trigger the Unfunded Mandates Act of 1995 (“UMA”). Under that act, direct costs are defined as, “in the case of a Federal private sector mandate, … the aggregate estimated amounts that the private sector will be required to spend in order to comply with the Federal private sector mandate.” UMA §101(c). The Department is mandated to analyze whether its rules will trigger “any disproportionate budgetary effects … upon … particular segments of the private sector.” 2 U.S.C. §1532(a)(3)(B). Here, these disproportionate costs would fall upon a wide spectrum of religious groups, corporations, non-profit agencies, citizen family members, and noncitizens. (d) NIJC believes this bill will also have impact on small businesses sufficient to make it a “major rule” under the Small Business Regulatory Enforcement Fairness Act of 1996. The annual impact of the rule is expected to exceed $100 million; even the Department estimates the time cost as several times greater than that amount, Indeed, even if the annual impact were less than $100 million, it will certainly result in, “a major increase in costs or prices for consumers [or] individual industries.” In this case, the consumers include noncitizen clients and family members; employers who sponsor noncitizens required to seek employment authorization; and various others. The form at issue here is exactly the kind of agency shift which requires heightened analysis under the three statutes noted above. The Congressional intent was very clear: The goal of the legislation is to foster a more cooperative, less threatening regulatory environment among agencies, small businesses and other small entities. The legislation provides a framework to make federal regulators more accountable for their enforcement actions by providing small entities with an opportunity for redress of arbitrary enforcement actions. The centerpiece of the legislation is the RFA which requires a regulatory flexibility analsysis of all rules that have a "significant economic impact on a substantial number" of small entities. Under the RFA, this term "small entities" includes small businesses, small non-profit organizations, and small governmental units. The Department should re-analyze these changes, including their impact upon small entities. Please do not hesitate to contact Diane Eikenberry, associate director of policy, with any questions, at deikenberry@heartlandalliance.org or 202-879-4310. |
Response: Thank you for your comment. Many of the issues you raise have been addressed above. Responses to unique issues you raise are provided below.
This Federal Register Notice was not a proposed rule; it is a proposed revision to a currently available form a foreign national may use to request a benefit (employment authorization) from USCIS. USCIS will take your concerns regarding the time and cost burden estimates into consideration and may revise these estimate during the next revision of Form I-765. |
Comment 91. |
Commenter: Alison Edington, Earlham College
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My name is Ali Edington, I am an International Student Adviser. I
appreciate many of the changes that have been made to the I-765
form and I-765 instructions. I think that they are going to make
the application process for EAD/work authorization much clearer
for students. Some of the changes I'm most appreciative of are the
"In Care of Name" option in 4.a., the ability for
applicants to list multiple countries of citizenship/nationality
in 14.a. and 14.b., the inclusion of "village" in 15.a.,
and the specific field and instructions for Part 2, 20.a. -
20.d.
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Response: Thank you for your comment. Many of the issues you raise have been addressed above. Responses to unique issues you raise are provided below.
4.c. Please see the Mailing Address section of the Instructions for Form I-765 for information about providing a P.O. Box. |
Comment 92. |
Commenter: Michael Ediger
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Speaking personally, as a DSO who routinely assists F-1
international students with the preparation of their employment
applications for Optional Practical Training and other allowable
employment, I hereby submit the following comments on the proposed
changes to the I-765.
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Response: Thank you for your comment. The issues you raise have been addressed above.
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| File Type | application/vnd.openxmlformats-officedocument.wordprocessingml.document |
| Author | Jager, Kerstin A |
| File Modified | 0000-00-00 |
| File Created | 2021-01-21 |