[This month’s ABCs of Immigration issue is adapted from Greg Siskind’s book, co-authored by Bruce Buchanan, The I-9 and E-Verify Handbook.]
What are asylees and refugees?
Specific protected groups of foreign nationals are protected in the United States, the most common of which are asylees and refugees. According to the 1980 Refugee Act, the definition of a refugee is “any person who is outside of any country of such person’s nationality… who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
Similarly, asylees demonstrate a well-founded fear of persecution, however they are in the United States when applying for that status.
Asylees and refuges alike are eligible for employment authorization, and special paths exist for them to attain permanent residency.
What is the difference between asylee and refugee status?
While almost every requirement for both statuses are the same, the most important distinction is that an asylee makes his or her application while inside the United States. On the other hand, a refugee applies while both outside his or her home country and outside the United States.
Are there other protected statuses?
Yes. Temporary protected status (TPS) is also available to nationals of designated countries which face armed conflict, environmental disaster, and other extraordinary and temporary conditions.
If someone arrives in the United States as a refugee, how does that person obtain work authorization?
Upon entering as a refugee, the individual will receive a Form I-94 (Arrival/Departure Record) stamped to indicate “Employment Authorized.” The individual can then use this Form I-94 to prove eligibility to work for up to 90 days of employment. The Form I-94 itself will not have an expiration date, however, so the employee should write “N/A” in Section 1 of the Form I-94 for the expiration date.
How does a refugee get an Employment Authorization Document (EAD) beyond the 90 Days associated with Form I-94?
As part of the refugee’s travel packet, an application for an EAS (I-766) will be prepared and will be sent from the port of entry to U.S. Citizenship and Immigration Services (USCIS) for expeditious processing. The EAS will subsequently be delivered to the refugee’s resettlement agency.
If the employer originally accepts Form I-94 for proof of work authorization for a refugee, what list should it be recorded in?
The Form I-94 is a List A document.
After 90 days of employment, what should an employer do regarding the refugee’s work authorization?
After 90 days, the employer should request the refugee-employee present documentation verifying his or her work eligibility. The employee will more than likely present an Employment Authorization Document (EAD), a List A document. The employer should cross-out the Form I-94 and add the EAD in the List A column. In lieu of this, the employee is entitled to present other valid documentation, such as an unexpired List B document and an unrestricted Social Security Card, a List C document. In such cases, the employee should also cross out the Form I-94 information and record these documents.
How does an asylee establish work authorization?
- An asylee may receive a Form I-94 stamped to indicate asylee status. Unlike the refugee’s Form I-94, an asylee’s Form I-94 is a List C document, so an asylee needs to present a valid List B document alongside the Form I-94.or
- The asylee may present a valid List B document in addition to an unrestricted Social Security Card, a List C document.
How does an asylee-employee properly record status in Section 1 of the Form I-9?
As asylee-employee must check the fourth box, “An alien unauthorized to work,” and write “N/A” for the expiration date.
Must an employer re-verify an asylee-employee who presents a valid List B document and a Form I-94 for List C?
No. An asylee’s Form I-94 does not have an expiration date, so it does not need to be re-verified.
How does an asylee receive an Employment Authorization Document (EAD)?
If asylum is granted by the Asylum Office of U.S. Citizenship and Immigration Services (USCIS), it will take the necessary action to provide work authorization documentation. However, if an immigration judge or the Board of Immigration Appeals (BIA) grants asylum, the asylee will be provided instructions to visit the local USCIS office through an InfoPass appointment, or file an I-765, Application for Employment Authorization. The asylee will also need to provide USCIS with the decision of either the immigration judge or BIA.
IF an asylee or refugee provides an Employment Authorization Document (EAD) with an expiration date, must the employer re-verify work authorization before the card expires?
Yes. In this case, the EAD is treated the same as other EADs, which must be re-verified with a new EAD or some other document showing work authorization.
May an employer accept a copy of the decision of the immigration judge or BIA as proof of work authorization and record it on the Form I-9?
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.