United States: Information on the category C-18 Employment Authorization Card, including what it signifies, whether it can be renewed, and the requirements for renewal; whether it is possible for a US citizen to sponsor a foreign national spouse from within the US (2014-February 2016) [USA105453.E]

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. Overview

According to Community Health Advocates (CHA), a program that provides free counseling and information on health insurance in New York State (CHA n.d.), when the US Citizenship and Immigration Services (USCIS) "grants a noncitizen permission to work in the US, it issues him or her a card, called an EAD [Employment Authorization Document]" (ibid. Aug. 2012). Sources indicate that the C-18 category specifies that an individual has been granted "employment authorization" while being under an "Order of Supervision" (OSUP) (US 21 Aug. 2014; CHA Aug. 2012). Sources state that an OSUP is given to individuals who have been ordered to be deported or removed from the US, but are currently unable to return to their home country (ibid.; Rutgers and AFSC July 2012, 6). The US Code of Federal Regulations (CFR) "241.5 - Conditions of Release After Removal Period" section, as reproduced on the website of the Cornell University Law School, stipulates the following:

(c) Employment authorization. An officer authorized to issue an order of supervision may, in his or her discretion, grant employment authorization to an alien released under an order of supervision if the officer specifically finds that:

  1. The alien cannot be removed in a timely manner; or
  2. The removal of the alien is impracticable or contrary to public interest. (US 1997)

Sources state that individuals can be released on an OSUP following a period of detention (Robert Brown LLC n.d.; Asian Journal 7 June 2013). According to a report co-produced by the Newark Immigrant Rights Clinic at the Rutgers School of Law and the American Friends Service Committee (AFSC), legal limitations on the "amount of time an individual can be held in a detention facility" has led to a "greater number of individuals released on OSUP" (Rutgers and AFSC July 2012, 6).

Sources state that the conditions placed on a person who is under an OSUP include, but are not limited to periodic meetings with designated officials [more specifically, Immigration and Customs Enforcement (ICE) officials (ibid.)], obtaining travel approval in advance, efforts to obtain travel documents [1], physical or mental examinations, and providing written notice of a change in address (ibid.; Asian Journal 7 June 2013; US 1997, 241.5 (a)).

According to the Rutgers Immigrant Rights Clinic and AFSC report, the OSUP status can be revoked, and an individual detained "if the Department of Homeland Security has reason to believe that it is significantly likely that it will be able to remove the individual from the United States" (July 2012, 7). An article by the Law Offices of Brian D. Lerner, published in the Asian Journal, a Filipino community newspaper, states that OSUP status may be revoked and an individual detained if "[t]he purposes of [the] release have been served," there is a violation of conditions of release, the removal order can be enforced, or "conduct or any other circumstances, indicates that release would no longer be appropriate" (Asian Journal 7 June 2013).

1.1 Application for Employment Authorization Under Category C-18

According to the US Department of Homeland Security's "Instructions for I-765, Application for Employment Authorization," someone under an OSUP may apply for employment authorization as follows:

G. Final Order of Deportation--(c)(18).

File Form I-765 with a copy of the order of supervision and a request for employment authorization that may be based on but not limited to the following:

  1. Existence of a dependent spouse and/or children in the United States who rely on you for support;
  2. Existence of economic necessity to be employed; and
  3. Anticipated length of time before you can be removed from the United States. (US n.d.a, 6)

According to the website of USCIS, the filling fee for the I-765 form is US$380 (US n.d.b).

1.2 Renewal

Information on renewing a C-18 category employment authorization was scarce among the sources consulted by the Research Directorate within the time constraints of this Response. According to a 2012 document on stateless people in the US, produced by the UNHCR and the Open Society Justice Initiative, a work authorization for a person under an OSUP "must be renewed annually" and "requires paying a fee of several hundred dollars for each request or renewal" (UNHCR and the Open Society Justice Initiative Dec. 2012, 2). The I-765 application form includes a check-box for "Renewal of my permission to accept employment," which instructs the applicant to "attach a copy of [their] previous employment authorization document" (US n.d.c). A copy of the I-765 application form is attached to this Response.

2. Spousal Sponsorship

Information on the ability of a US citizen to sponsor a foreign spouse that is under an OSUP or Order of Final Deportation/Removal was scarce among the sources consulted by the Research Directorate within the time constraints of this Response.

According to AllLaw, a website that provides free legal information and resources (AllLaw n.d.a),

[i]f you are a foreign-born person who has married a US citizen, and you are currently staying or living in the US, your marriage may qualify you for a green card (US lawful permanent residence), and to apply for it through a process known as adjustment of status (AOS).

First, however, you need to make sure that you are eligible ... to apply for it by adjusting status. (AllLaw n.d.b)

A 2015 document on "Motions to Reopen or Reconsider Immigration Proceedings" produced by the US Ninth Circuit Court of Appeals states that according to the cited case law, the "Board of Immigration Appeals [2] has authority to reopen proceedings of an alien who is under a final order of removal" so that they may have the "opportunity to pursue an adjustment of status application [see Section 2.2 below]" before USCIS (US Mar. 2015, C-50). The same source further states that "[g]enerally, a motion to reopen for adjustment of status will not be granted on the basis of a marriage entered into during deportation proceedings unless the petitioner qualifies for the bona fide marriage exception” (ibid.).

According to a document produced by the USCIS in response to a petition to reopen deportation proceedings, 204(g) of the Immigration and Nationality Act states that

Restriction on petitions based on marriages entered while in exclusion or deportation proceedings. - Notwithstanding subsection (a), except as provided in section 245(e)(3), a petition may not be approved to grant an alien immediate relative status by reason of a marriage which was entered into during the period [in which administrative or judicial proceedings are pending regarding the alien's right to remain in the United States], until the alien has resided outside the United States for a 2-year period beginning after the date of the marriage.

...

Restriction on adjustment of status based on marriages entered while in admissibility or deportation proceedings; bona fide marriage exception.-

  1. Except as provided in paragraph (3), an alien who is seeking to receive an immigrant visa on the basis of a marriage which was entered into during the period described in paragraph (2) may not have the alien's status adjusted under subsection (a).
  2. The period described in this paragraph is the period during which administrative or judicial proceedings are pending regarding the alien's right to be admitted or remain in the United States.
  3. Paragraph(1) and section 204(g) shall not apply with respect to a marriage if the alien establishes by clear and convincing evidence to the satisfaction of the [Secretary of Homeland Security] that the marriage was entered into in good faith and in accordance with the laws of the place where the marriage took place and the marriage was not entered into for the purpose of procuring the alien's admission as an immigrant and no fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparation of a lawful petition) for the filing of a petition under section 204(a) ... with respect to the alien spouse or alien son or daughter. In accordance with the regulations, there shall be only one level of administrative appellate review for each alien under the previous sentence. (US 22 Oct. 2013, 2-3, emphasis in original and square brackets in original)

2.1 Reopening Deportation Proceedings Legislation

8 CFR 1003.2 – "Reopening or Reconsideration Before the Board of Immigration Appeals," as reproduced on the website of the Cornell University Law School, states the following:

(c) Motion to reopen.

  1. A motion to reopen proceedings shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material. A motion to reopen proceedings for the purpose of submitting an application for relief must be accompanied by the appropriate application for relief and all supporting documentation. A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted if it appears that the alien's right to apply for such relief was fully explained to him or her and an opportunity to apply therefore was afforded at the former hearing, unless the relief is sought on the basis of circumstances that have arisen subsequent to the hearing. Subject to the other requirements and restrictions of this section, and notwithstanding the provisions in § 1001.1(p) of this chapter, a motion to reopen proceedings for consideration or further consideration of an application for relief under section 212(c) of the Act (8 U.S.C. 1182(c)) may be granted if the alien demonstrates that he or she was statutorily eligible for such relief prior to the entry of the administratively final order of deportation.
  2. Except as provided in paragraph (c)(3) of this section, a party may file only one motion to reopen deportation or exclusion proceedings (whether before the Board or the Immigration Judge) and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened, or on or before September 30, 1996, whichever is later. Except as provided in paragraph (c)(3) of this section, an alien may file only one motion to reopen removal proceedings (whether before the Board or the Immigration Judge) and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.
  3. In removal proceedings pursuant to section 240 of the Act, the time limitation set forth in paragraph (c)(2) of this section shall not apply to a motion to reopen filed pursuant to the provisions of § 1003.23(b)(4)(ii). The time and numerical limitations set forth in paragraph (c)(2) of this section shall not apply to a motion to reopen proceedings:
    1. Filed pursuant to the provisions of § 1003.23(b)(4)(iii)(A)(1) or § 1003.23(b)(iii)(A)(2);
    2. To apply or reapply for asylum or withholding of deportation based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing;
    3. Agreed upon by all parties and jointly filed. Notwithstanding such agreement, the parties may contest the issues in a reopened proceeding; or
    4. Filed by the Service in exclusion or deportation proceedings when the basis of the motion is fraud in the original proceeding or a crime that would support termination of asylum in accordance with § 1208.22(f) of this chapter. (US 1996)

2.2 Filing for an Adjustment of Status and Petition for Alien Relative

According to the US Department of Homeland Security's "Instructions for Form I-130, Petition for Alien Relative,"

[a] citizen or lawful permanent resident of the United States may file Form I-130, Petition for Alien Relative with U.S. Citizenship and Immigration Services (USCIS) to establish the existence of a relationship to certain alien relatives who wish to immigrate to the United States. …

You may file a Form I-130 for:

A. Your spouse; ... (US n.d.d, 1)

According to the instructions provided to submit the I-130 form, "[i]f the beneficiary resides in the United States and is filing Form I-485, Application to Register Permanent Residence or Adjust Status along with Form I-130," both applications are to be submitted together with the appropriate fees (ibid., 5). According to an article posted by Sarmiento Immigration Law Firm on their website, when a marriage occurs after deportation proceedings have been initiated, the I-130 and I-485 forms cannot be submitted together; rather, the I-130 form must be submitted and approved before the I-485 can be filled (Sarmiento Immigration Law Firm 15 Mar. 2013). The same source further states that more proof is necessary to establish the legitimacy of the marriage and a "bona fide marriage exception letter" must be included with the I-130 form (ibid.).

According to the "Instructions for I-485, Application to Register Permanent Residence or Adjust Status," an individual may file Form I-485

  1. Based on an immigrant petition

    You may apply to adjust your status if:
    1. An immigrant visa number is immediately available to you based on an approved immigrant petition; or
    2. You are filing this application with a completed relative petition … which, if approved, would make an immigrant visa number immediately available to you. (US n.d.e)

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

Notes

[1] The UNHCR and Open Society Justice Initiative report on stateless persons in the US elaborates further, stating that an individual under an order of supervision must "continue to seek travel documents, assist authorities in obtaining such documents, and provide the authorities with all correspondence with relevant embassies requesting the issuance of travel documents" (UNHCR Dec. 2012, 21).

[2] According the US Department of Justice, the BIA "is the highest administrative body for interpreting and applying immigration laws" and has "nationwide jurisdiction to hear appeals from certain decisions rendered by immigration judges and by district directors of the Department of Homeland Security (DHS)" (US n.d.f).

References

AllLaw. N.d.a. "Home." [Accessed 19 Feb. 2016]

AllLaw. N.d.b. Ilona Bray. "How To Adjust Status (To Permanent Resident) After Marriage to a U.S. Citizen." [Accessed 19 Feb. 2016]

Asian Journal. 7 June 2013. Brian Lerner. "I Have Been Ordered for Deportation, But ICE is Not Deporting Me. What is Going On?" [Accessed 5 Feb. 2016]

Community Health Advocates (CHA). August 2012. "Section 11A - Immigrant Eligibility for New York State Health Insurance Programs." [Accessed 5 Feb. 2016]

Community Health Advocates (CHA). N.d. "About CHA." [Accessed 12 Feb. 2016]

Robert Brown Immigration Law. N.d. "Reporting to Immigration Officers." [Accessed 5 Feb. 2016]

Rutgers School of Law-Newark Immigrant Rights Clinic and American Friends Service Committee (AFSC). July 2012. Freed but not Free: A Report Examining the Current Use of Alternatives to Immigration Detention. [Accessed 8 Feb. 2016]

Sarmiento Immigration Law Firm. 15 March 2013. JP Sarmiento. "Marriage After Deportation Immigration Proceedings are Initiated." [Accessed 9 Feb. 2016]

United Nations High Commissioner for Refugees (UNHCR) and Open Society Justice Initative. December 2012. Citizens of Nowhere: Solutions for the Stateless in the U.S. [Accessed 9 Feb. 2016]

United States (US). March 2015. US Courts for the Ninth Circuit. "Motions to Reopen or Reconsider Immigration Proceedings." [Accessed 8 Feb. 2016]

United States (US). 21 August 2014. Washington State Department of Social and Health Services. "Citizenship and Alien Status." [Accessed 5 Feb. 2016]

United States (US). 22 October 2013. US Citizenship and Immigration Services (USCIS). "Petition for Immigrant Abused Spouse Pursuant to Section 204(a)(l)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § ll54(a)(l)(A)(iii)." [Accessed 9 Feb. 2016]

United States (US). 1997 (amended 2011). "8 CFR 241.5 - Conditions of Release After Removal Period." Code of Federal Regulations (CFR). [Accessed 5 Feb. 2016]

United States (US). 1996 (amended 2002). "8 CFR 1003.2 - Reopening or Reconsideration Before the Board of Immigration Appeals." Code of Federal Regulations (CFR). [Accessed 8 Feb. 2016]

United States (US). N.d.a. US Citizenship and Immigration Services (USCIS), Department of Homeland Security. "Instructions for I-765, Application for Employment Authorization." [Accessed 8 Feb. 2016]

United States (US). N.d.b. US Citizenship and Immigration Services (USCIS), Department of Homeland Security. "I-765, Application for Employment Authorization." [Accessed 15 Feb. 2016]

United States (US). N.d.c. US Citizenship and Immigration Services (USCIS), Department of Homeland Security. "I-765, Application for Employment Authorization." [Accessed 15 Feb. 2016]

United States (US). N.d.d. US Citizenship and Immigration Services (USCIS), Department of Homeland Security. "Instructions for Form I-130, Petition for Alien Relative." [Accessed 8 Feb. 2016]

United States (US). N.d.e. US Citizenship and Immigration Services (USCIS), Department of Homeland Security. "Instructions for I-485, Application to Register Permanent Residence or Adjust Status." [Accessed 8 Feb. 2016]

United States (US). N.d.f. Department of Justice. "Board of Immigration Appeals." [Accessed 15 Feb. 2016]

Additional Sources Consulted

Oral sources: National Immigration Law Center; Niren & Associates Immigration Law Firm; United States – Embassy in Ottawa.

Internet sites, including: American Civil Liberties Union; Amnesty International; Human Rights Watch; Immigrant Legal Resource Center; National Immigration Law Center; United Nations – Refworld.

Attachment

United States (US). N.d. Department of Homeland Security. "I-765, Application for Employment Authorization." [Accessed 15 Feb. 2016]