The Department of Homeland Security (“DHS”) published a final rule that will dramatically modify how Employment Authorization Documents (“EAD”) are issued in the asylum context. The changes proposed are focused on disincentivizing aliens from filing “frivolous, fraudulent or otherwise non-meritorious asylum applications”.
Presently, when an asylum applicant has had their asylum application (I-589) pending before either USCIS or the Immigration court for 150-days, they may file an I-765, Application for Employment Authorization. They would do so under the (c)(8) category and receive a work permit that could be renewed while their case is pending before the Asylum Office, the Immigration Court of the Board of Immigration Appeals.
Under the new proposed rule, applicants will not be able to apply for an EAD until their application for asylum has been pending for one year. Additionally, USCIS has proposed to exclude persons from applying for an EAD if an applicant failed to file their asylum application within the one-year filing deadline and did not receive a determination of a statutory exception from a judge or asylum officer. Similarly, despite a timely filing, if an applicant entered the U.S. illegally, they too will be prevented from filing for an EAD unless one is able to demonstrate that the illegal entry was linked to the persecution in their home country from which they fled.
Applicants who have committed an aggravated felony are not eligible to receive an EAD. Neither are applicants who have committed any felony in the US or a serious non-political crime outside of the US. The addition of exclusions for applicants who have been convicted of certain public safety offenses is substantial. Certain public safety offenses include domestic violence, child abuse, possession of controlled substances and DUIs no matter how the offense is classified under state or local law. These bars to EAD eligibility will apply to all applications filed on or after August 25, 2020, for any conviction on or after August 25, 2020 (excluding the aggravated felony bar).
The proposed rule will also remove eligibility from applicants who have their cases reviewed by U.S. federal courts after having appealed to the BIA. If any applicant’s asylum application was initially approved by an Immigration Judge, but appeal by the Government has taken the case all the way to the Court of Appeals, the applicant will lose their EAD for the duration, which could take years.
These changes will make applicants not only wait longer but will ultimately limit the number of applicants who receive EADs, due to the introduction of exclusionary bars. DHS believes that applicants with “legitimate” asylum claims will be willing to wait longer and work harder to get an EAD. It will be more important now than ever to ensure that people with asylum claims have proper legal representation in every stage of their case, from filing an application to the day of the interview or court.
Wilner & O’Reilly is a multi-state law firm exclusively dedicated to the practice of immigration law. For individualized advice on your immigration situation, please feel free to contact us. We offer free consultations at our offices in Orange, Riverside, Fresno, Sacramento, San Diego and San Francisco, California; Salt Lake City and Orem, Utah; and Boise, Idaho.
DANNY CHRISNEY – ATTORNEY
Danny Chrisney is an associate attorney at the Wilner & O’Reilly Fresno office. The son of a Guatemalan immigrant, he speaks fluent Spanish and Portuguese. He studied at Brigham Young University where he earned a Bachelor of Arts in Linguistics with a Minor in Portuguese. Danny received his Juris Doctor degree from the Sandra Day O’Connor College of Law at Arizona State University where he graduated with Highest Pro Bono Distinction.
RICHARD M. WILNER – FOUNDING PARTNER
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 Law.