Understanding Form I-765: Application for Employment Authorization

One of the most important roles of an immigration lawyer is to ensure that their non-citizen clients can secure and maintain eligibility to work legally in the U.S., a process that begins with the completion of Form I-765, also known as the Application for Employment Authorization.

However, to fill out and submit the application properly, immigration lawyers must first understand how Form I-765 works in a variety of contexts, from specific requirements for different applicant categories to relevant filing fees and appropriate methods of delivery.

Looking to explore additional step-by-step guides for filing legal and/or tax forms? Explore Clio’s Common Legal Forms Hub.

Why is Form I-765 important?

Every day, immigration lawyers work with a wide range of non-citizen clients with diverse backgrounds and reasons for residing in the U.S., virtually all of whom share a common need: lawful access to employment opportunities. This is why Form I-765 is so important—it provides a common procedure through which immigration lawyers can help non-citizens reinforce their legal status and earn a living.

Whether it’s being used by an international student or asylum seeker, Form I-765 allows non-citizens to support themselves and their families while maintaining their lawful presence in the U.S.

Eligibility criteria for Form I-765

While all non-citizens use Form I-765 when seeking employment authorization in the U.S., submission requirements and criteria for approval depend on their specific applicant category.

Here is a list of common eligible applicant categories and their corresponding requirements for obtaining an EAD.

1. Asylum seekers and refugees

Eligibility: Applicant must have applied for and been granted asylum or refugee status.

Requirements: Must wait 150 days after filing an asylum application before submitting Form I-765. Separate applications may be required for spouses and children.

2. Non-citizens with Temporary Protected Status (TPS)

Eligibility: Applicant must be a foreign national with an official TPS designation due to a military conflict, environmental disaster, or other extreme conditions impacting their country of residence.

Requirements: Must provide documented proof of nationality and temporary immigration status.

3. International students

Eligibility: Applicant must be enrolled in a U.S. university on a student visa (F-1, J-1, M-1).

Requirements: Must provide proof of status as a student and evidence to support the request for employment, such as a job offer or declaration of economic hardship.

4. Family members of U.S. citizens/lawful permanent residents

Eligibility: Applicant must be the spouse or child of a U.S. citizen/lawful permanent resident or holder of a K-1 visa.

Requirements: Must provide proof of relationship to a lawful resident (i.e., birth or marriage certificate), as well as evidence of petitioner’s permanent resident status.

5. DACA Recipients

Eligibility: Applicant must be a non-citizen who came to the U.S. as a child and meets the eligibility requirements under the Deferred Action for Childhood Arrivals (DACA) policy.

Requirements: Must file Form I-765 alongside request for DACA status (Form I-821D). DACA status must be approved before the applicant is eligible for employment authorization.

Filing process for Form I-765

Once you’ve determined which applicant category your client falls into and confirmed their eligibility, you complete and submit Form I-765 to request an official EAD. Here’s a step-by-step guide to help you through the process.

Step 1: Compile all required documentation

First, you’ll need to be sure your client has all the documents needed to accompany their application. In addition to any of the category-specific requirements mentioned above, this will generally include:

– Two 2×2 inch, passport-style photos taken within 30 days of the application

– Valid government-issued photo ID (passport, driver’s license, etc.)

– Record of arrival and departure in the U.S. (Form I-94)

– Copies of previously issued EADs (if applicable)

Step 2: Fill out the form

Next, you can begin the line-by-line completion of the client’s official Form I-765 application. The completed form can either be typed or completed by hand using permanent black ink, and includes the following sections:

Section 1: Reason for applying

Select from the following options: (1) initial permission to accept employment; (2) replacement of lost, stolen, or damaged EAD; (3) renewal of permission to accept employment.

Section 2: Personal applicant information

Provide accurate information related to the following categories, if applicable. If a category does not apply, write “N/A”—do not leave blank.

– Full legal name

– Other names used

– Place and date of birth

– Gender

– Marital status

– U.S. mailing address

– Alien registration number (if applicable)

– USCIS account number (if applicable)

– Immigration status/applicant category

Section 3: Signatures

Complete Form I-765 with the applicant’s signature, your own signature as the client’s attorney, and the signature of any third-party interpreter (if applicable).

Step 4: Pay all applicable filing fees

After completing the form, you’ll need to submit the appropriate filing fee on your client’s behalf. In most cases, this will include a baseline fee of $410, as well as an additional $85 for biometric services fee for certain applicants. In other cases, including certain asylum seekers, refugees, or TPS applicants, no fees will be required to submit Form I-765.

Step 5: Submit the application

After all the relevant information has been provided and applicable fees have been settled, it’s time to submit the application.

In most cases, you’ll need to determine the accurate USCIS mailing address for the client’s applicant category and physically mail Form I-765 for approval. However, in some cases, including certain international students and humanitarian parolees, it’s acceptable to e-file your client’s application via an online account with the USCIS. (If your practice is based in Texas or Georgia, Clio File can help you expedite the e-filing process.)

Common challenges when guiding clients through Form I-765

To avoid potential denials or delays, it’s important that immigration lawyers avoid these common challenges when guiding their clients through Form I-765:

Improper timing. When submitting Form I-765, it’s critical to be sure you stay within the designated timeframe based on your client’s situation. This not only means getting the application in by a required deadline, but also not sending it out before the client has met the criteria for pre-qualification.

Incorrect category designation. If your client isn’t sure which category they fall under as a non-citizen seeking employment authorization, entering the wrong eligibility information can result in a significant delay or outright denial of their EAD request.

Incomplete supporting documentation. Whether it’s proof of asylum status or copies of a previously issued EAD card, not providing all relevant evidence and documentation will delay the process and potentially put your client’s employment authorization status at risk.

Easing the stress of immigration law with intelligent case management software

In the digital age, having the ability to automate certain processes is crucial for any attorney, and especially for those working in high-stakes areas like immigration law. Whether you’re trying to expedite the submission of an EAD application or more effectively navigate the broader needs of your non-citizen clients, Clio’s immigration law case management software can help you streamline more tedious tasks while you focus on providing the kind of hands-on legal guidance your clients deserve.