On August 19, 2019, U.S. Citizenship and Immigration Services (USCIS) issued new policy guidance in the USCIS Policy Manual on employment authorization for non-citizens who have been paroled into the United States. The policy guidance states that employment authorization for parolees is discretionary and lays out the factors that should be taken into account when determining whether employment authorization should be granted as a matter of discretion. This guidance applies to non-citizens who are paroled into the United States under INA § 212(d)(5) for urgent humanitarian reasons or for a significant public benefit. USCIS indicates that the guidance is being issued because “there is a national emergency at the U.S. southern border.” This guidance appears to be an effort to limit the occasions in which employment authorization is issued to people who have been paroled at the border. 

The policy guidance states that a non-citizen who is paroled into the United States is not employment-authorized incident to status and must apply for employment authorization. See 8 CFR § 274a.12(c)(11). In order to determine whether employment should be authorized as a matter of discretion, the guidance directs the adjudicator to look at the facts and circumstances of each case and determine whether the positive factors outweigh any negative factors. The guidance provides a table that includes a nonexclusive, nonbinding list of factors to be considered. The favorable factors set forth in the guidance include: the nature of the circumstances that led to the non-citizen’s parole; the length of time authorized for parole and conditions placed on parole, whether the non-citizen is the primary caregiver or source of financial support for a spouse, parent or child with significant health conditions; any prior periods during which the non-citizen has been in the United States lawfully; if the non-citizen is assisting with a lengthy federal criminal investigation or prosecution; and if the non-citizen is the spouse, parent or child of a U.S. citizen or is or was a member of the U.S. Armed Forces.

Among the unfavorable factors to be considered include: criminal history; the length of time authorized for parole (less than one year, for example); whether the non-citizen has violated the terms of the parole; the nature of any prior immigration violations; the length of time the non-citizen has been in the United States without lawful presence, with shorter periods of time being more unfavorable; applicable grounds of inadmissibility, including fraud or misrepresentation; whether the non-citizen is subject to a final order of removal or reinstatement of removal; and whether the non-citizen is a national security or public safety risk, as evidenced by arrests and convictions. In addition, the guidance provides specific examples of “serious negative factors” that include whether the non-citizen has been convicted of an aggravated felony; convicted of any felony; charged with or convicted of any offenses involving domestic violence, child abuse, neglect, sexual assault and any offense involving controlled substances or driving under the influence. Having committed fraud or misrepresentation and being subject to a final order of removal are also listed again as “serious negative factors.” The guidance states that while the presence of any of these “serious negative factors” weighs heavily against granting employment authorization, they should not form the basis for an automatic denial and should be considered based on the totality of the facts of the case.

Finally, the guidance instructs officers to grant employment authorization only for the period of the parole authorization, which is usually one year. If the non-citizen is re-paroled, he or she may file a new employment authorization application.