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Immigration Law

TPS Employment Authorization Lawsuit Filed: Szomstein v. Jaddou

Ira Kurzban writes: "My firm filed the attached complaint and thought it would be of interest to Bender’s readers. We are challenging the failure of USCIS to provide employment authorization to all TPS applicants upon filing the application. Under the INA 244(a)(4)(B) applicants for TPS “shall” receive employment authorization upon establishing a prima facie case. USCIS, as a practical matter, never makes a prima facie determination of a TPS applicant’s claim. Instead, it treats the fully completed application as having made the claim but does not grant employment authorization upon filing. The case, if successful, will affect tens of thousands of TPS applicants who have waited until their TPS applications are approved to receive employment authorization. But even then, many wait for months if not years until an I-765 is approved. TPS applicants, however, are entitled to receive employment authorization incident to their status as “applicants” and later as persons “approved” for TPS, see INA 244(a)(1)(B) without filing an I-765. The complaint is not filed as a class action because of the bar under INA 242(f)(1). However, we believe that approval of these claims will result in approval of all TPS applicants because the issue is the same, that is, applicants for TPS are entitled to employment authorization incident to status."