The Discretion to Deny EAD Cards and More 

The USCIS issued a Policy Alert on July 15, 2020, reminding USCIS officers that they have discretion to deny immigration benefits in nearly every application.  Notably, the Policy Alert specifically refers to the EAD Employment Authorization Document for foreigners to work in the U.S.  It states:

For benefits involving discretion, a discretionary analysis is a separate component of the adjudication of the benefit request; it is typically assessed at the end of the review, after an officer has determined that the requestor meets all other applicable eligibility requirements.³ 

Footnote 3 provides:

See, for example, INA 245(a): “The status of an alien who was inspected and admitted or paroled into the United States . . . may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if . . . .” 

Limits the Ability of Foreigners to Work

This Policy Alert is consistent with the Presidential Proclamation of June 22, 2020.  That proclamation stops issuance of certain work visas to the US given high unemployment due to COVID-19.  It is consistent with the goal of reserving work to Americans.

Other Immigration Benefits Too

The Policy Alert is problematic because it opens the door to not only scrutinize issuance of work permits, but also discretion to deny all immigration benefits.  As such, it can be a signal to clamp down on immigration in total. 

Discretionary Determinations are Reviewable

Normally, purely discretionary decisions of the USCIS are not reviewable on administrative appeal or in court.  Even so, undoubtedly attorneys will scrutinize any effort of this new policy to curtail the benefits offered to foreigners under statute or regulation.  Not all decisions of the USCIS are discretionary.  For example, a “discretionary” decision is reviewable in court if it raises a “legal” question or Constitutional question such as Due Process, Equal Protection etc. See 8 USC 1252(a)(2)(D).

Abuse of Discretion

There is also the problem of abuse of discretion.  As Federal appellate judge Cheryl Ann Krause forcefully warned, discretion is not unbridled. The Court rejected the government’s proposal that,

‘so long as an alien seeking only discretionary relief had the opportunity to reasonably present evidence, he would have no cognizable due process claim—and hence, no recourse to the federal courts—even if the IJ denied that relief “based on the flip of a coin.’  Tr. 43. We think that conception of due process is not only inconsistent with our case law but would be anathema to our Founding Fathers. See Chehazeh v. Att’y Gen., 666 F.3d 118, 130 (3d Cir. 2012) (stating that “substantive liberty rights and . . . due process rights” are both “areas that courts often are called upon to protect”).  Calderon-Rosas v. Attorney General United States, No. 19-2332 (3d Cir. 2020)

Although a claim for abuse of discretion is an uphill battle, it is possible to allege it under the Administrative Procedures Act, along with other claims under our constitution.  For this reason, it is important in every case to do more than the minimum required to get your case filed, whether it be for a green card, marriage visa, EAD card, or otherwise.  You should present a compelling case in every instance so that your case, one among many, will be approved and not delayed or denied.