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Contrary to Conventional Wisdom Employment Authorization Does Not Terminate Automatically Upon I-485 Denial

Posted on Friday, January 28, 2011

When must a foreign national whose I-485 adjustment of status application has been denied stop working? The conventional wisdom is that employment authorization issued on the basis of having filed an I-485 application terminates automatically upon the denial of the I-485 application, even if the foreign national’s Employment Authorization Card (EAC) is still valid. A strong argument exists, however, that this conventional wisdom is in fact flawed.

Under the Regulations, termination of employment authorization issued on the basis of having filed an I-485 application happens either automatically or upon affirmative revocation by the District Director.  Automatic termination of employment authorization occurs when the foreign national’s EAC expires or when the foreign national is placed in removal proceedings or granted voluntary departure. Affirmative revocation of employment authorization by the District Director is warranted when a condition upon which it was granted no longer exists or upon a showing that the information contained in the EAC application is erroneous.

The Regulations specify that, should the District Director determine that employment authorization should be revoked, the District Director “shall serve written notice of intent to revoke the employment authorization” stating the reasons that revocation is warranted. Moreover, the Regulations provide that the foreign national must be granted fifteen days from the date of service of the notice of intent to revoke (NOIR) within which to submit countervailing evidence. Finally, the Regulations state that a decision by the District Director to revoke the employment authorization shall be final. Accordingly, the Regulations suggest that, absent automatic revocation due to the occurrence of one of the events described above, an actual decision to revoke employment authorization by the District Director is needed to terminate a foreign national’s employment authorization upon I-485 denial.

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