Applicants for deferred action will also be able to apply for work authorization. According to the June 15, 2012 deferred action memo, there will be separate applications, one for deferred action and another for work authorization. While the deferred action application is not currently available, the procedure for seeking work authorization should follow the current regulations, 8 C.F.R. section 274a.12(c)(14), and (e). See the regulations here:
http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-28757/0-0-0-29424.html
Section 274a.12(c)(14) says: “(c) Aliens who must apply for employment authorization . An alien within a class of aliens described in this section must apply for work authorization. … (14) An alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment;”
In other words, getting deferred action under the new program will not mean you also automatically get work authorization. Instead, a separate application, the Form I-765, will be required, as well as evidence of “economic necessity.”
The current regulations explain how to show economic necessity in 8 C.F.R. section 274a.12(e).
“(e) Basic criteria to establish economic necessity . Title 45–Public Welfare, Poverty Guidelines, 45 CFR 1060.2 should be used as the basic criteria to establish eligibility for employment authorization when the alien’s economic necessity is identified as a factor. The alien shall submit an application for employment authorization listing his or her assets, income, and expenses as evidence of his or her economic need to work. Permission to work granted on the basis of the alien’s application for employment authorization may be revoked under § 274a.14 of this chapter upon a showing that the information contained in the statement was not true and correct. (Redesignated as paragraph (e), previously paragraph (d), 2/23/09; 74 FR 7993 )”
This section of the regulations is referring to the federal poverty guidelines. You can see the current guidelines here:
http://aspe.hhs.gov/poverty/12poverty.shtml/#guidelines
In summary, deferred action applicants will need to submit evidence that their income falls below the federal poverty guidelines to qualify them to also get work authorization. To prove this under current regulations, applicants need to submit a list of their assets, income and expenses.
According to 8 C.F.R. section 274a.13(a)(1), “Where economic necessity has been identified as a factor, the alien must provide information regarding his or her assets, income, and expenses in accordance with instructions on Form I-765.” http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-28757/0-0-0-29507.html
The government has indicated that the deferred action application should be available by August 15, 2012. According to the June 15, 2012 deferred action memo, applicants will also need to submit the Form I-765 to seek work authorization. Therefore, it is prudent for potential applicants to begin gathering information regarding their assets, income and expenses, as required by the existing regulations discussed above.
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The I-765 instructions were changed on August 15, 2012. The new instructions are available at http://www.uscis.gov/files/form/i-765instr.pdf .
On page 5, a new category – (c)(33) – was added. The instructions for (c)(33) provide as follows:
“To determine your eligibility for work authorization, you must establish economic necessity. USCIS will consider whether you have an economic need to work by reviewing your current income, annual expenses, and the total value of your assets. Provide this financial information on Form I-765 WS, Form I-765 Worksheet. If you would like to provide an explanation, complete Part 3, Additional Information, of the worksheet. It is not necessary to submit supporting documents, though it will be accepted and reviewed if you choose to submit it.”
Many attorneys are interpreting the instructions for (c)(33) to mean that DACA applicants can prove economic necessity solely by filling out the I-765 WS, without any supporting documents. However, I think this is an unsafe assumption, particularly for a new program that we have no experience with. Therefore, I have all my clients fill out an additional “economic necessity” form, which includes a detailed break-down of the DACA applicant’s average monthly expenses. Then I also advise them to include copies of their monthly bills to further prove their expenses. If they are going to school, I include a copy of their most recent tuition statement.
In addition, an I-765 must always be submitted with 2 passport style photos, the required fee ($465 for DACA applicants), and copies of a government issued photo ID. If my client is using their passport as the ID, I include a copy of all pages of the passport, as per USCIS custom and regulation.