** LEGAL UPDATE **
In May 2018, United States Citizenship and Immigration Services (USCIS) issued a new work permit application (Form I-765). All people using Form I-765 to apply for a work permit in the U.S. must use the new version of this form (as of September 17, 2018).
The new work permit application is significantly longer than the previous form (it went from one page to seven pages long). One of the major changes in the new form is that it asks certain applicants whether they have ever been arrested for and/or convicted of a crime.
On page three of the new Form I-765, it asks people applying under categories c8 (people with pending asylum applications) and c35 and c36 (certain people with approved employment-based immigrant petitions waiting to adjust status to legal permanent resident and their dependents) whether they have ever been “arrested for and/or convicted of a crime.”
An applicant who answers “yes” must provide documentation regarding this arrest or conviction to USCIS along with the work permit application.
If you are applying for a work permit under the c8 or c35/36 and have ever been arrested for and/or convicted of a crime, you should absolutely consult an immigration attorney before submitting your work permit application, so as to determine whether you still qualify.
Under the guidelines for the new Form I-765, applicants must submit evidence of their arrests and/or convictions to USCIS. If you have been arrested or convicted of a crime, USCIS instructs you to include “certified copy of all arrest reports, court dispositions, sentencing documents, and any other relevant documents.”
For people applying for a work permit under the c8 category (pending asylum applicants), USCIS will deny the application if the person has been arrested for and/or convicted of a type of crime referred to in immigration law as an “aggravated felony.”
Certain crimes which may not seem very serious are classified as aggravated felonies, so it is a good idea to consult with an immigration attorney to determine whether any crime for which you have been arrested or which you've been convicted of could meet the definition of aggravated felony.
USCIS will make the final determination whether the crime is an aggravated felony or not. Even if the crime isn’t an aggravated felony, USCIS may still use its discretion to deny your work permit if you have been arrested for and/or convicted of any crime.
For people in the c35/36 employment-based category, USCIS will now deny work permits based on one felony or two misdemeanor convictions. The new work permit application also instructs these applicants to include all documentation surrounding their arrest and/or conviction. USCIS can also use its discretion to deny a work permit if you are in this category and have been arrested for and/or convicted of any crime.
If you indicate you have been arrested for and/or convicted of a crime and don't provide all the documentation surrounding the arrest or conviction, USCIS will likely deny your application or issue an RFE ("Request for Evidence") for the documentation before it can approve your work permit (even if the crime would not disqualify you from being approved for a work permit).
Effective date: September 17, 2018