USCIS recently modified the form I-765, Application for Employment Authorization. The new form, question 30, requires asylum seekers to disclose whether they “have… EVER been arrested for and/or convicted of any crime.” What is the purpose of this question? What if you have been arrested or convicted of a crime? Can you still get an Employment Authorization Document (“EAD”)?
First, this question applies to asylum seekers, whose EAD is based on category c-8. People with asylum, and most others, are not asked about their arrest history when they request an EAD.
Under 8 C.F.R. § 208.7(a)(1), “an applicant for asylum who is not an aggravated felon shall be eligible” for an EAD. This clearly refers to people who have been convicted of an “aggravated felony,” but it presumably also refers to people who admit to having committed an aggravated felony, even if they have not been convicted. The purpose of the question, then, is to determine whether you are an “aggravated felon” (convicted or not) and if so, to deny you an EAD.
So what is an aggravated felony? The term is defined in INA § 101(a)(43), which lists all sorts of crimes that are aggravated felonies. Some of the behavior is quite bad (murder, rape); other behavior seems less severe (passing a bad check, certain illegal gambling offenses). In some cases, a conviction is required. For example, a “theft offense” is an aggravated felony only if the term of imprisonment is at least one year. In other cases, a conviction is not required: If you committed the bad act, you are an aggravated felon.
On first glance, then, it may seem easy to determine whether someone is an aggravated felon: Just compare the person’s offense with the crimes listed in INA § 101(a)(43). Unfortunately, things are not nearly so simple. Indeed, there is a whole sub-specialty of law–dubbed with the clever portmanteau “Crimmigration”–devoted to analyzing how a criminal offense interacts with the immigration law. The problem is compounded by the fact that criminal laws vary significantly by state and by country, and that we have precious little guidance from the Board of Immigration Appeals or the federal courts. In short, the analysis of whether a particular crime is an aggravated felony can be very complicated and often involves more guess work than seems appropriate for a country where the rule of law is (supposedly) paramount. According to the I-765 instructions, “USCIS will make the determination as to whether your convictions meet the definition of aggravated felony.” Given the complexity of the analysis in some cases, my guess is that USCIS will not always get it right.
All this means that any person who checks the “yes” box for question 30 should be prepared for trouble. Depending on the situation, that trouble could range from delay to outright denial of the EAD.
Who needs to check “yes” for question 30? According to the form itself, you must check “yes” if you were arrested for, or convicted of, any crime (according to the instructions, p. 8, “minor” traffic offenses do not require you to check “yes,” but more serious offenses, including alcohol- or drug-related offenses require a “yes”). What if you were arrested, but it was not for a crime? As I read the form, you could get away with checking “no”. However, the I-765 instructions are a bit different. They read, “For initial and renewal applications, you are required to submit evidence of any arrests and/or convictions.” Thus, even if you were arrested for a political reason (i.e., not a crime), you would have to check “yes”. How to resolve the conflict between the form and the instructions? I do not know. For my clients, I would probably check “no” if the arrest was not for a crime, but I would circle the question on the form and write “see cover letter.” I would then provide an explanation in the cover letter. I would also provide some evidence about the arrest. My concern is that USCIS will accuse the client of lying about an arrest (for a crime or otherwise) and that this would create problems down the line. By providing an explanation, I am trying to protect the client from this danger.
So what happens if you must check “yes” on the I-765 form? First, you will need to get some evidence of the arrest. For a criminal arrest (especially in the U.S.), this would normally consist of the arrest record and the court disposition (the final outcome of the case). Court documents should be certified by the clerk. To get such documents in this country, you would normally contact the court where the case was heard, and ask the clerk for a certified copy of the case. Obtaining such records from overseas will likely be more challenging.
What about for political arrests? USCIS does not provide guidance here, but presumably, you have to get what you can: Court and police documents, lawyer documents, letters from witnesses. Sometimes, people are arrested for a crime, but the arrest is politically motivated. How USCIS will handle such cases, we do not know. But if this is your situation, you would want as much evidence as possible to show that the arrest was pretextual. Maybe letters from people familiar with the case, country condition information (explaining, for example, that the government falsely charges political opponents with crimes) or expert reports would help.
What if the police stopped you, but did not actually arrest you? What about an illegal detention where you were not charged with any crime? Again, it is unclear what to do. Depending on the situation, you could potentially answer “no” to question 30, but I think you need to be careful, as you do not want to be accused later of failing to disclose an arrest. Provide an explanation, and talk to a lawyer if you need help.
Even where a person has an arrest or conviction that is not an aggravated felony, USCIS could potentially deny the EAD. The I-765 instructions note, “USCIS may, in its discretion, deny your application if you have been arrested and/or convicted of any crime.” Thus, even if your arrest or conviction (or admission of a crime) is not an aggravated felony, USCIS could deny the EAD. Presumably, this denial would be based on the discretionary language of INA 208(d)(2) (“An applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Attorney General”). This language is somewhat in conflict with the implementing regulation, 8 C.F.R. § 208.7(a)(1), which states that “an applicant for asylum who is not an aggravated felon shall be eligible” for an EAD. How this conflict would ever play out in a lawsuit, I do not know, but my guess is that if USCIS denies an EAD as a matter of discretion, it will be difficult to reverse that decision.
Finally, what if you are denied an EAD due to an arrest or conviction? Potentially, this is a decision that can be appealed (using form I-290B). However, a discretionary denial is unlikely to be reversed (since USCIS has discretion to do as it pleases, within limits), and given the complicated legal analysis associated with some aggravated felony determinations, an appeal of that issue might be difficult (and would likely require help from a lawyer). Given that an appeal is expensive (a whopping $675.00 for the DHS fee), it probably makes sense to consult with a lawyer about whether there is any chance for success.
The big question in my mind is how USCIS will implement this change. What will they do with political arrests? Will they deny EADs for small matters, in the exercise of discretion? For people with arrests, will the EAD be delayed, and for how long? All this remains to be seen. For people with any sort of arrest, I do think it will be important to get court records and certified dispositions (final results) for all arrests. I also think it would be important to present a legal argument in cases where the EAD could be denied as an aggravated felony or as a matter of discretion. In short, if you have to check “yes” on question 30, it is probably best to consult with an attorney to help you present your application for an EAD. This is an unfortunate expense for asylum seekers, who are probably already overburdened, but if you need a work permit, it is probably money well spent.
Hi Jason,
Excellent post. Just trying to double check with you… I have an ongoing affirmative asylum application, not interviewed yet. I will apply for EAD soon. I need that work permit immediately as everyone else…I have a PURELY POLITICAL non-US arrestation and a conviction in my home country. Otherwise, I have no offences in the USA or elsewhere. In essence, that political conviction is already the reason I apply for asylum and kind of building my case on it. I assume the USCIS should know about it already, as they can see all about it in my file. That said, I am really concerned about indicating the arrest/ conviction at the form I-765 article 30, due to concerns of denial or postponement of the work permit. Do you think marking “no” for that item and making an explanation at the end of the form and attaching court decisions to the form would be a good strategy? In the end it is not a felony but a political issue. So, you are not automatically screened for “crime” but still not hiding anything. By the way, I am having a hard time see how all those applying for political asylum do not already have an arrestation/conviction, and what do they do about it while filling the form I-765. Do they hide it? In the end is not that the reason for asylum application? Comments, suggestions? Thank you, Jason.
I think the approach you suggest is fine – that is basically what we do. I also recommend you circle the question and write “see cover letter” and provide an explanation in the cover letter (or if you are filing electronically, you can provide an explanation on the supplement page at the end). You can also say that it was not a lawful arrest, but rather an illegal detention and that it is the basis of your asylum claim. Take care, Jason
I was arrested for possession of Marijuana but my case is in plea abeyance and I’ve had done everything required for that. Case will be dismissed in 3 months. Do you think I can be denied for ead for co8 category.
As I remember, the denial is only for an “aggravated felony” conviction, and so without a conviction, you should be ok. If there is a conviction, it may be another story, as drug crimes (even minor ones) can potentially be aggravated felonies under the immigration law. However, a dismissal should not block you from an EAD. It may cause delay, though, so I would apply as soon as you are eligible (180 days before the current EAD expires). Take care, Jason
Your case will approve 100 percent one of my friend helping his friend in his shop he accidentally sold a e-cigarette to minors that’s why he got arrested his application is approved
Hello Jason,
I am an asylum seeker and my case is still pending. I am currently fighting against 3 oui’s in the same year; and I’m very likely to get convicted on all of them. If I do get convicted,
1. Is it an aggravated felony? If not, Will I be able to renew my EAD?
2. I lost the hard copy of my application receipt(but i had scanned it), how does one get another one? Or will it’s reprinted scan( which looks like a printed picture) be enough on my EAD renewal?
Thanks.
1 – I doubt it would be an aggravated felony, but it depends on the specific conviction under the state’s law. Even if it is not an aggravated felony, you will be required to include this information on the I-765 if you are applying based on asylum pending (c-8). You definitely want to have an immigration lawyer help you with the criminal case, as certain convictions will render you deportable and in some cases, you could be detained without possibility of release. So you want a lawyer with criminal/immigration law experience to guide you. 2 – The copy will be fine. Take care, Jason
Hello Jason I was brought to this country at 6 years old finished highschool. Was arrested for marijuana possession at 16 and sales at 17 these charges were dropped to infraction. At 17 I was assaulted by sherrifs and lapd law enforcement officials for the marijuana charge they mistook me for a armed suspect they were searching for during the time at the bus station I was taken to the hospital. After that I didn’t know if I could sue them or not but I ended up life taking a dark turn was arrested for possession of meth then charged for sales of meth but didn’t have baggies or anything of the sort the amount was far less then what would be considered 10 dollars worth. It’s been 7 years the judge officially sealed and put an expungement order on my behalf after that I have not had contact with police since I am married with 3 kids under my care can I qualify for a worker permit or green card?
You would need to talk to a lawyer to evaluate your situation. The drug charges could potentially affect your ability to remain here legally, especially if there is a conviction. However, the rules related to crime and immigration can be complicated and counter-intuitive. In addition, whether you have some way of obtaining a GC, I do not know. I would gather all the criminal court/arrest documents you have and then consult with a lawyer about how to proceed. Take care, Jason
Hello Jason, I’m going to file my EAD Renewal and I’d appreciate if you can help me with question 30 a. I was detained by police but there’s no record of arrest as it was politically motivated. I was in policy custody but there was no case filed. Should i answer yes or no to the arrest question. Thanks
You can answer whichever you think is more appropriate given the situation, though you want to be consistent with your asylum claim. You can then circle the question and write “see cover letter.” In the cover letter, you can explain what happened and provide evidence if you have any. I think this will not be a problem for the EAD, since you are only blocked if you are convicted of an “aggravated felony” (as defined in INA 101(a)(43)), which this is not. The concern is that if you say nothing, it may be inconsistent with your asylum claim, which could cause problems. Take care, Jason
Hello Jason,
What are the required documents that I need to submit it along with form I- 765. My status is pending asylum seeker.
Thank you
Hello Jason,
What are the required documents that I need to submit it along with form I- 765. My status is pending asylum seeker.
Thank you
I do not know your case, and so I cannot say all the documents that are needed. It also depends on whether this is a renewal or a first time application. The I-765 web page at http://www.uscis.gov describes the documents needed, and so do the I-765 instructions. At a minimum, you will need proof of the pending asylum case, a copy of your passport (if you have one), two passport photos, and the correct filing fee (if any). But there are other forms you would need depending on the case. Take care, Jason
Hi Jason , i am trying to fill out for i 765 and I have a question on question number 30b
I came to us as a student on F1 then I apply for asylum a month after
So what should answer this question and what is the required documentation since i t came lawfully to the country?
Thank you
If the question relates to entry, we usually put the last status the person had when they entered the US. If it relates to current status, you can put either F-1 (if you still have that status) or asylum pending. Proof of entry includes the I-94 (which you can find if you follow the link under Resources called I-94 Locator), and a copy of the passport (info/photo page), the US visa, and the entry stamp. Take care, Jason
I came across this article of yours “Applying for a Work Permit When You Have an Arrest Record” and found it most interesting but am still in a dilemma as what to put on my EAD renewal documents regarding question 30…”yes” or “no”.
I am needing some guidance regarding what to answer for question 30…my situation is as follows:
August 31, 2018 I was pulled over for not having my headlights on…I had just left a friends house and had driven 0.03 of a mile when “they” saw me and then pulled me over. I explained to the cop that my normal headlights (low beam) were not working and was in the process of getting quotes to get them fixed however my headlights (high beam) & fog lights were indeed working so driving at night was no issue at all.
They then tested me for alcohol and did the various sobriety tests etc…they then arrested me even after one of the officers at the scene said “this is a very weak case”! I blew 0.089 at the County Jail once we got there and then stayed there for a few hours…we then received my charge papers a few days later to find out that my PBT reading on the site was 0.066!!!
We went back and forth to court for a year fighting in this regard…and finally in August 2019 we had the DUI charge dropped and was charged with Reckless Driving due to not having my headlights on to which I pleaded quilty and paid the small fine.
What are your feelings as to what I should answer for question 30? I would be very grateful to get some feedback from you.
The question asks about arrests, and you were arrested, so I think you need to say “yes” and provide all documentation. Since the DWI case was dismissed, you should be fine (I do not think reckless driving would affect an EAD application). If you are not sure, you should talk to a lawyer about this, but based on what you wrote, I think you are eligible for the EAD. Take care, Jason
Thank you very much for your prompt reply! It is much appreciated!
Hi Jason, I am really confused and need your help: I am in the process of renewing my EAD and I had a case with my ex landlord when she lied that I damaged kitchen appliances so she can run away with my security deposit. Judge dismissed the case. Does this fall under convicted or arrested part.
I dont know how to answer that question?!
Thank you
It sounds to me like a civil law suit that is not an arrest or conviction. Unless you were charged criminally by the police with damaging the property, this is not a criminal issue. If you are not sure, you can answer “no” and then write “see cover letter.” In the cover letter, you can note that you had a case with the landlord and you can attach a copy of the case. If you are sure there is no criminal issue, you can just check “no” and be done with it. Take care, Jason
Hey Jason, coming back to you with the question since uscis complicated the EAD form by adding “charged”, so the question is have you ever been convicted, arrested or charged? I wasn’t arrested and wasn’t convicted as judge dismissed the case. What is considered as charged and should I answer yes or no?
History of question:
Hi Jason, I am really confused and need your help: I am in the process of renewing my EAD and I had a case with my ex landlord when she lied that I damaged kitchen appliances so she can run away with my security deposit. Judge dismissed the case. Does this fall under convicted or arrested part.
I dont know how to answer that question?!
Thank you
If this was a civil case – meaning a lawsuit by the landlord to get money from you – then that is not a “charge”. But if the police were involved and they sent you to court, that probably is a charge. If you are not sure, you should talk to a lawyer. If this was a criminal case, normally you would have had a lawyer, either one you hired or one who you got for free from the government, so maybe reach out to that person. Take care, Jason
Dear jason, thank you so much for all your valuable posts.God bless all your steps. I have filed an expediting request for my case three months ago and today i went in person to inquire and they said that it is denied and i have been put on the short list. I have questions regarding that. I have filed the case in July 2017 newark office and my attorney told me that the short list already has about 2500 cases so 1) is being in the short list does not cancel my regular order in the queue according to my filing date ???? 2) the short list is pretty long so if my regular turn comes before my short list turn, will they call me for an interview? 3) what do you recommend for me to do because what i know being on the short list means they may call you today for an interview after few days meaning no chance to be ready translating papers etc???? 4) is it a good thing being on the short list or that it is useless and i should not put too much hope on that??????
1 – As I understand, if you are on the short list, either you will get your “regular” interview, or you will get a short list interview, whichever comes first. 2 – Yes. 3 – Make sure your case is complete and you file all your evidence and documents. That way, if you are called, the asylum office will already have a complete case. 4 – It may help. Newark is moving slowly through its backlog, which is better than most offices, so maybe there is hope – I did a post about that earlier this week. Take care, Jason
Hi Mr Jason,
I applied for my EAD renewal, I sent the application 2 days ago. Now I realized that I forgot to include the 2 passepport pictures.
I was thinking about sending it with a letter explaining that I forgot to include it, and add a copy of all the documents I sent in my application today.
Should I do it? What should I do in my case? Please, I’m so anxious right now!
I would not send it, as I doubt they will match it up with your case. If they need it, which I think they will, they will send you a request for evidence. If you want to try to send it, maybe at least wait until you have the receipt, and then you can include a receipt number when you mail in the photos and a letter explaining that they should be added to your I-765 application. I doubt this will be a big deal or cause much delay. Take care, Jason
Thank you so much for your response
Dear Jason,
I applied for me EAD after 150 days together with my family, my kidsEAD was approved while mine was denied. My hubby still showing case was received. What could have happened, Although my asylum case was denied and I’m yet to have my MCH. Still waiting for the decision letter though.
The letter should tell you why it was denied, and then you can try to correct the problem. If you are part of the case and your children were approved, normally, you should be approved as well. Take care, Jason
Hi Jason! I could not check my status on ligne because I lost my asylum receipt. When I’am on ligne they are asking me a receipt number but I don’t have it. Is it possible to request it?
Maybe, but I am not quite sure how you would do that – you might have to go in person. You can contact the asylum office to ask. You can find their contact info if you follow the link at right called Asylum Office Locator. Also, you could file a Freedom of Information Act request to get a copy of your file. Use form G-639, available at http://www.uscis.gov. This is free, but probably takes 4 to 6 months. Also, you would at least need your Alien number (if you have a work permit, the Alien number is on that). Take care, Jason
Hi Jason,
Ive applied for asylum in 2012 and my interwiew was scheduled 4 months later, and I went to the interview at USCIS field and they said they will reschedule it by mailing me the new date for interview. Since then I always renew my ead if it is about to be expired. This year I sent the renewal application, and USCIS sent me a denial letter that they mailed me the interview and that I failed to attend the interview. I swear God I have not gotten any letter concerning my new interview date since then. I am even in extreme need to be interviewed because Im so tired of waiting and I have my family separated from me for long period. I dont know what to do now. Can you please advise Jason?
Thanks!
You can check your case status online at http://www.uscis.gov (I wrote about how to do this on January 23, 2019). You should contact the asylum office, ask what happened, and tell them that you never got notice for any interview. You can find their contact info if you follow the link at right called Asylum Office Locator. Hopefully, they can help you. Take care, Jason
Dear Jason,
I have applied for an EAD renewal but would like to expedite it bcz of an emergency. However, I am not sure where should i submit the expediting request letter. Is it the same address that I have mailed my EAD card renewal request or somewhere different? Thank you for your time and help
Once you have the receipt, you can send the expedite request to the address on the receipt. Make sure to include a copy of the receipt, so your request can be matched with your case. Take care, Jason
Hi Jason,
I am about to apply for my EAD renewal and I just moved to another house in the same City (I notified the local asylum office of my change of address.
I am wondering if USCIS(the reginal office) know about my new address based on my notification to the local asylum office, or I am still required to fill form AR-11.
Thank you for all your help,
James
I think it is safest to also file an AR-11. Anyway, there is no harm in that. Take care, Jason
Hi Jason
Thanks for your amazing info ,
how long does a medical exam I-693 take ? I have to do before the application for permanent resident .?
It depends on the doctor. Usually, they can get done in a week or two; sometimes less, if the doctor has time to see you. Take care, Jason
Hi Jason
Can asylum applicant in immigration proceedings renew his EAD?
Thanks
Yes – you can renew the EAD normally if the case is pending in Immigration Court or before the Board of Immigration Appeals. Take care, Jason
Hi Jason,
Applied for EAD renewal. received the card. Never noticed the DOB was wrong (month and date were flip flopped) on the notice and the card. My fault by the way. Do I just have to follow the instruction on the Notice of approval? or should I pay the fee too? Thanks.
I think the I-765 instructions indicate what to do if the card has an error on it. I think if the error was your fault, you would have to pay, but check the instructions to be sure. Take care, Jason
Which address did u send ur renewal ead application and how long did it take