The Department of Homeland Security (DHS) has published two rules greatly limiting asylum seekers’ ability to apply for an employment authorization document (EAD). The first rule will go into effect August 21, 2020, while the second set of rules will go into effect August 25, 2020. Below, we break down some of the most notable changes relating to an applicant’s ability to obtain an EAD while his or her asylum application remains pending:
RULE GOING INTO EFFECT AUGUST 21, 2020
DHS will no longer require initial EAD applications be adjudicated within 30 days.
In the past, USCIS was required to adjudicate initial EAD applications for asylum applicants within thirty days. This deadline was first created in 1997. At the time, USCIS (then INS) was receiving 52,217 affirmative asylum applications—in 2017, that number grew to 141,638 applications. With news of imminent layoffs facing USCIS, this change will likely serve to alleviate application processing centers. The Service notably did not provide a new timeframe for processing EAD applications after the implementation of this new rule.
RULES GOING INTO EFFECT AUGUST 25, 2020
Applicants who initially entered the United States without inspection may be ineligible for an EAD.
Applicants who, absent good cause, entered or attempted to enter the U.S. without inspection will not be eligible for an EAD. The rules define “good cause” as “a reasonable justification for entering the United States illegally as determined by the adjudicator on a case-by-case basis.” An exception exists for applicants who (1) Presented themselves without delay but no later than 48 hours after entry or attempted entry to a DHS official; (2) indicated to the official their intention to apply for asylum or expressed a fear of persecution or torture; and (3) otherwise had good cause for the illegal entry or attempted entry. Examples of “good cause” include seeking immediate medical attention or feeling imminent serious harm.
Asylum applicants must have an asylum application pending for 365 days to be eligible for EAD purposes.
Citing a desire to deter asylum seekers from filing “frivolous, fraudulent, or non-meritorious claims to obtain employment authorization or other immigration benefits,” DHS has extended the waiting period for applicants to be eligible to apply for an EAD. The applicant’s asylum application must have been pending for 365 days at the time the applicant files for an EAD. This is a drastic change from the current 150-day period an asylum seeker must wait before applying for an EAD.
Filing for asylum more than a year after entry will make an applicant ineligible for an EAD until an Asylum officer or the Immigration Judge determines eligibility for asylum.
An asylum application must be filed within one year of entering the United States. Outside of extraordinary circumstances, an asylum applicant who files an asylum application outside of the one-year filing deadline is not eligible for an EAD. DHS enacted this rule in hopes this new rule will encourage asylum seekers to file quickly as required by statute. DHS is also implementing exceptions to the one year-filing deadline for those who have been found by an asylum officer or Immigration Judge to meet the exception. This portion of the rule will not apply to an applicant who filed for asylum as an unaccompanied minor.
Criminal conduct may make an applicant ineligible for an EAD.
Applicants who have (1) been convicted of any aggravated felony; (2) been convicted of any felony in the United States or serious non-political crime outside the United States; or (3) been convicted in the United States of certain public safety offenses involving domestic violence or assault; child abuse or neglect; possession or distribution of controlled substances; or driving or operating a motor vehicle under the influence of alcohol or drugs, regardless of how the offense is classified by the state or local jurisdiction.
DHS will consider, on a case-by-case basis, whether applicants who have been convicted of any non-political foreign criminal offense or have unresolved arrests or pending charges for any non-political foreign criminal offenses, warrant a favorable exercise of discretion.
EADs will terminate automatically on the date of asylum denial by either the Asylum office or thirty days after an Immigration Judge denies asylum.
Under the new rules, EAD eligibility will terminate on the date of asylum denial by an Asylum officer. However, if USCIS refers an asylum case to immigration court, employment authorization will continue, and the applicant will be eligible to continue applying for EAD renewals until an Immigration Judge makes a decision on the asylum application. If the Immigration Judge denies the application, the EAD will terminate 30 days after the denial, unless the applicant files a timely appeal with the Board of Immigration Appeals (BIA). Renewal of the EAD is available while the appeal remains pending before the BIA; however, DHS will prohibit EAD authorization during a federal court appeal process, unless the Federal court remands the asylum case back to the BIA. An applicant could reapply for an EAD once the case is before the BIA again.
These changes can seem daunting and difficult to understand. If you or a loved one have questions about how these changes may affect your case, call our offices today! In light of current covid-19 restrictions, we are offering free first consultations telephonically.
These are unprecedented times, but here at Wilner & O’Reilly we remain dedicated to our providing the best service to our clients. We continue to monitor the situation closely and know that many of you are facing uncertainty at this time. Keep checking our blog for the latest immigration-related COVID-19 updates. Though state-issued guidelines prevent us from meeting with clients in person, we remain available for consultations via telecom. Call our office to schedule an appointment today!
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ABOUT THE AUTHOR(S)
Lauren M. Flores is an associate attorney at Orange Office of Wilner & O’Reilly, APLC. She is a native of Compton, CA and a proud daughter of an immigrant father. Her primary and secondary education took place in the neighborhoods of Huntington Park, South Central, and Boyle Heights—she has a special affinity for these communities. She graduated from Brigham Young University where she earned a Bachelor of Arts in Journalism with Minors in Spanish, Editing, and International Development. She received her Juris Doctor from the J. Reuben Clark Law School at Brigham Young University. During her time in law school, she served as an associate editor, lead editor, and finally executive editor for the Brigham Young University Education and Law Journal. She is passionate about education and furthering the opportunities for inner city youth to have access to higher education.
Richard M. Wilner is a founding member of Wilner & O’Reilly, APLC, and is Board Certified by the State Bar of California as a Specialist in Immigration and Nationality Law. He is admitted to practice law in the State of California and before the U.S. District Courts for the Central, Northern and Southern Districts of California, the Northern District of Texas, the U.S. Court of Appeals for the Ninth Circuit, and the U.S. Supreme Court.Mr. Wilner has received the coveted Martindale-Hubbell AV Rating, the highest legal and ethical rating that one can receive from one’s peers in the legal community. Similarly, he has been awarded the title of Super Lawyer from 2007 to the present. He is best known for his work in advising Fortune 500 companies, middle and small market businesses, entrepreneurs, and foreign nationals of extraordinary ability in athletics, arts, and sciences in the complex area of U.S. Immigration and Nationality.