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Originally Posted by Nycgal111
So if they codify it, you lose the work authorization? Why?
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Are you sure about this? I don't know how an executive branch would "codify" anything. The closest thing is Executive Order, which can be removed by the next president or be challenged in court. The only branch that can "codify" is Congress.
When it comes to EAD (work authorization), I've been reading up on it. An excerpt from Yale Journal (
https://www.yalejreg.com/bulletin/wo...ca-recipients/)
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Judge Hanen of the Southern District of Texas enjoined the program in July 2021 but stayed his decision in part while the government appeals and simultaneously works on a draft regulation.16 Judge Hanen first held that the government violated the APA by failing to go through a notice and comment rulemaking process—a defect that he acknowledged may be cured by an imminent proposal for a DACA regulation.17 However, in addition to this procedural APA violation, Judge Hanen ruled in the states’ favor on a substantive APA claim that DACA is in fundamental tension with central principles set out in the INA.18 One of these, according to Judge Hanen, is that “[t]he INA provides a comprehensive statutory scheme for the allocation of work authorization.”19
This is incorrect. First, a regulation has been in place since 1981 authorizing employment for deferred action recipients, and DACA is a type of deferred action.20 This regulation predated Congress saying anything significant about immigrant employment, which it did not do until 1986 when it passed the Immigration Reform and Control Act (IRCA).21 Second, with IRCA, Congress granted authority to the agency to offer employment authorization to whomever it wants, ratifying the agency’s preexisting practice of granting it to persons with deferred action. According to the INA as amended by IRCA, an “unauthorized alien” for purposes of employment is a noncitizen who is neither a Lawful Permanent Resident nor “authorized to be . . . employed by this chapter or by the Attorney General.”22 In other words, Congress explicitly granted authority to the Attorney General to give employment authorization to categories of persons unmentioned in the statute. After passage of the Homeland Security Act of 2002, this function was transferred to United States Citizenship and Immigration Services (USCIS), the component of the Department of Homeland Security (DHS) that has inherited authority over employment authorization.23
It may seem hard to understand at first glance why Congress would draft an exception that seemingly swallowed its other rules about immigrant employment, but that is exactly what the statute says. Under the plain wording of the statute, USCIS can grant employment authorization to new categories of individuals, or even dole it out to individual undocumented immigrants on a case-by-case basis.
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Basically, USCIS can grant EADs to whoever they want, on a case by case basis, even undocumented immigrants. I don't see why USCIS wouldn't consider DACA receipts under Biden, it just won't be "a comprehensive statutory scheme" for EADs.