A New Type of EAD Denial

by Jason Dzubow on March 3, 2017

This article is by Ruth Dickey, a brilliant and dashing associate at Dzubow & Picher, PLLC.

During the latter part of the Obama Administration, it became common for DHS/ICE attorneys (the prosecutors) in Immigration Court to offer “prosecutorial discretion” or PD. If the applicant accepted PD and the Immigration Judge agreed, the case would be administratively closed. Basically, it would be taken off the court’s calendar and placed into a permanently pending status. Applicants with weak cases might take PD rather than risk losing their cases with the Judge and getting ordered deported.

Perhaps USCIS has a case of the Gremlins. First, they sabotaged B-17’s and P-52’s; now, they’re messing with I-765’s.

Under President Obama, PD was typically offered to people who were not enforcement priorities for ICE – that is, the person had positive factors, like long-term ties to the United States and did not have any disqualifying criminal issues. During the Obama Administration, ICE published a list of factors that prosecutors would consider when a person asked for PD. According to recent data, since 2013, almost 67,000 court cases have been administratively closed based on PD. This represents about 10% of all case closings in Immigration Court.

If your asylum case was administratively closed by an Immigration Judge, and if you had your employment authorization document (“EAD”) based on a pending asylum case, you remain eligible to renew the EAD for as long as the case is in administrative closure (theoretically, forever). This is because the case is technically still pending, and thus still “alive” for purposes of renewing the EAD.

Since Donald Trump came into office, DHS has largely done away with PD, and so we can expect to see far fewer cases administratively closed in the future. However, our office has several asylum clients whose cases were already administratively closed. They have ongoing needs, such as the need for an EAD.

One of my clients in this situation is an Unaccompanied Alien Child or UAC. UACs are people who crossed the border as minors without a parent or guardian. Such people are given additional procedural protections. For example, UACs have the right to present their asylum claims to an Asylum Office, which is a less intimidating environment than an Immigration Court. In my case, an Immigration Judge administratively closed my client’s case so she could file her case with the Asylum Office. Before the case was closed, I “lodged” her asylum application with the Court to start her “asylum clock,” which then allows her to file for an EAD (after a 150-day waiting period).

When the time came, our office prepared the EAD application (form I-765) and mailed it. Last week, we received a response denying the EAD. In its denial, USCIS referred to the applicable regulation, 8 CFR 208.7(a)(1), claiming that it said:

An applicant whose asylum application has been denied or closed by an asylum officer or by an immigration judge within the 150-day [clock] period shall not be eligible to apply for employment authorization.

But this is not what the regulation says. USCIS inserted the phrase “or closed” into the language of the actual regulation. The full sentence in the regulation actually reads:

An applicant whose asylum application has been denied by an asylum officer or by an immigration judge within the 150-day period shall not be eligible to apply for employment authorization.

Someone at USCIS added the words “or closed” to their quotation of the regulation, and then denied our client’s case because it had been administratively closed. The actual language of the regulation states that only denied–not closed–cases are ineligible for an EAD. The idea that USCIS would add language to the regulation in order to improperly deny someone–a UAC no less–their work permit is shocking and distressing.

I have already escalated the issue to the USCIS Ombudsman, an office that can assist with delayed or difficult USCIS cases, because the denial is so problematic. I am waiting to hear back from them, but the Ombudsman’s review process can drag out for months, and my client will not have a work permit in the meantime. This is extremely frustrating for her, especially because she is young and vulnerable (she has that UAC designation for a reason).

If your case has been administratively closed and your EAD application has been denied, please let us know. If there are others experiencing this problem, we can present the issue to USCIS and hopefully seek a resolution of this unfair and harmful practice.

{ 46 comments… read them below or add one }

MMC October 19, 2017 at 4:44 am

Hi Jason

My EAD application was just denied, 10/18/207. Previously we would file under (c)(10) every year since 2013. This year our lawyer recommended filing under (c)(8) since this grants the EAD for two years. This is the only difference in my application this year. I haven’t received the letter in mail yet outlining the denial cause. I am really worried. Any advice would be most helpful.

Thanks!

Reply

Jason Dzubow October 19, 2017 at 6:23 am

You would only be eligible under c-8 if you have a pending asylum case. When you get the denial letter, it should explain why the EAD was denied, and then you can take the next step (whether that is appealing, which is usually a bad idea, or filing again under the correct category). Take care, Jason

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Mo October 12, 2017 at 2:26 am

Hi,
Thanks for reading and responding to my situation.
I filled for Asylum and got a receipt on March 3rd 2017. Filled my EAD on the 18th of September (190 days after ).
My EAD application was denied stating i had not clocked 150 days before requesting for employment authorization. It states I cannot appeal the denial,but can ask for motion to reconsider and reapply.
How else do I calculate the clock days and when can I reapply?
I appreciate your comments.

Reply

Jason Dzubow October 12, 2017 at 6:18 am

That is strange. Try contacting the asylum office and tell them what happened. Ask them whether the clock is running and how many days have passed. Maybe they can give you an answer about that. You can find their contact info if you follow the link at right called Asylum Office Locator. After that, you will just need to re-file the I-765, maybe with a cover letter explaining what happened and indicating that over 200 days have now passed since you filed for asylum and that you are eligible for the EAD. Take care, Jason

Reply

Sara October 5, 2017 at 8:08 pm

Hi Jason,
Thank you for your response in advance.
I applied for EAD renewal based on pending asylum on August 7 with attached check for the fee. One week later I receive my check back and a letter saying it was not needed. I called USCIS, they confirmed that it was being processed and no payment needed. August 25th my case was denied due to non-payment. It is just ridiculous! I called USCIS again, they said I needed to make an appointment at the office, and the only way to make the appointment is through the website. The webpage to make the appointment is disabled. What do I do? Who do I call? I filed for renewal myself, and again- the reason stated on decision paper was that I didn’t attach the fee! Please help!

Reply

Jason Dzubow October 6, 2017 at 6:23 am

That is completely ridiculous and – sadly – not very surprising. You make an appointment using Info Pass at http://www.uscis.gov. Appointments are not always available, and so you have to return later to try again. Your better bet might be to refile with a short explanation for what happened, including the returned check and the rejection notice (keep copies of everything for yourself). Maybe you can also ask to expedite, given that the case was erroneously rejected. Even though it is not easy, try to be polite in the letter. You don’t know how many times I wanted to use words like “idiotic” “moronic” and “stupid” in my letters, but we have to leave all the colorful adjectives out. Good luck, Jason

Reply

Sara October 6, 2017 at 12:24 pm

Thank you for your help!
When you say “refile” do you mean to do it with I-290B form? This form is for them to reopen the case with additional evidence, and costs additional $700. Can I file a brand new case?
Thank you very much!

Reply

Jason Dzubow October 8, 2017 at 7:40 am

I was recommending filing a new I-765. The I-290B is expensive and it takes too long, and I almost never recommend that after an EAD denial (since it is cheaper and faster to file a new I-765). In your case, it sounds like re-filing the I-765 is the better choice, but if there is a different problem than simply the fact that USCIS accidentally returned the fees, than might try the I-290B. Talk to a lawyer about that to look at the specifics of the case before you do that, as it is costly and probably not the better choice. Take care, Jason

Reply

Ed Ruiz October 8, 2017 at 1:19 pm

If you have a copy of the I-765 that was denied it is possible that you find that the wrong block may have been marked in the upper left corner of page 1 (permission, replacement, renewal). If you accidentally marked “permission”, but you are actually renewing, then they will return your fee. They later discover the error and deny your application. If this is the case, do as Jason suggests, write a quick letter explaining the situation (use this explanation letter also as your Cover Letter), and send in your correctly filled new application with all the documents required. You must also send a copy of the denial letter.
Best of luck.
ER

Sara October 10, 2017 at 12:28 pm

Good day Jason.

Again, thank you very much for your valuable advice. I feel very bad wasting your time, do you have any offices in Los Angeles? I am in need of trustworthy and experienced attorney.

Pelly October 4, 2017 at 2:54 am

Hi Jason , I applied for asylum and have been waiting for 152days, I applied for EAD first time on September 12 and received acknowledgement of receipt on September 13. When do I start counting the additional 30days ? Will I still receive another letter for biometrics?
Thank you

Reply

Jason Dzubow October 4, 2017 at 6:44 am

You do not need to do that – once 150 days have passed, you can file for the EAD. Take care, Jason

Reply

Patrick Jean October 3, 2017 at 9:01 pm

Well, thanks for helping
I have an asylum application that is in court, I have waited less than 150 days to apply for a work authorization refused my application, can I reapply again? How can I do this?

thanks

Reply

Jason Dzubow October 4, 2017 at 6:34 am

You can re-apply after 150 days have passed on the clock (you can check that by calling 1-800-898-7180, enter your Alien number, and after the computer spells your name, press 2, and it will tell you how many days have passed on the clock). The form I-765 asks if you have previously applied for a work permit, so you will have to explain that you did, but it was rejected because you filed too early. You should be able to get the work permit if you re-file. Take care, Jason

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Annabella Trujillo October 3, 2017 at 6:38 pm

Hi I am an attorney in Miami, Florida and had this same issue back in July 2016.

Have you heard from the obudsman?

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Jason Dzubow October 4, 2017 at 6:28 am

You might want to email Ruth and ask her – you can find her email if you follow the hyperlink to her name at the beginning of the article. Take care, Jason

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mainu Patel October 3, 2017 at 12:47 am

Hey Jason, could you please let me know if I have withholding of removal a10 can they deport me if I have one ticket this year for speeding over 75/35 and other one two years a ago for crossing red light. I wonder my permit is delayed for that reason may be you think. Please give me your advise.

Reply

Jason Dzubow October 3, 2017 at 6:16 am

Many people are seeing their work permits delayed, and I doubt it is related to the tickets. Also, I do not see how such tickets could result in your deportation or any other change to your Withholding status. Take care, Jason

Reply

Mauro October 3, 2017 at 12:15 pm

Hey Jason, thank you In advance, for answering our questions. Do you think that it is possible for someone to get an ead if they have their immigration case administratively closed because of prosecutional discretion?

Reply

Jason Dzubow October 4, 2017 at 6:15 am

I do think it is possible – if the person has a pending asylum case and more than 180 days have passed on the asylum clock (you can check that by calling 1-800-898-7180, enter your Alien number, and after the computer spells your name, press 2, and it will tell you how many days have passed on the clock). There may be other ways as well, but you would have to talk to a lawyer about that. Take care, Jason

Reply

Artha October 15, 2017 at 8:12 pm

Hi Jason, what category should we choose for renewal? Is it c10?

mainu Patel October 3, 2017 at 11:53 pm

Thanks Jason you are so helpful and may God bless you.
YOu give great insight.
Thanks a lot.

Reply

mainu Patel September 28, 2017 at 12:12 am

Hello , Please guide me as what to do. I got withholding of removal( deportation) under a.10 by Judge,in 2010 and been getting EAD card every year with in 3 months. They usually sent approval letter in two months and then card .
But this year I applied in May 22 they sent me receipt letter and go finger printed needed letter as usual, but they did not sent me approval letter this date. Its now 4 months 10 days….
What should I do? will they renew my work permit as usual or deny… and every year I have to go to immigration office for reporting. This time i have to go in December. Should I hire a lawyer, I am a student and this is my 3rd year bachelor…I am worried I might not be able to register for classes in spring and if they deny I will get illegal.

Reply

Jason Dzubow September 28, 2017 at 6:25 am

You can call USCIS or go in person by making an Info Pass appointment at http://www.uscis.gov. You can also contact the USCIS Ombudsman office – a link is at right. They can sometime help with delayed cases. I do not think you would need a lawyer for the December check-in, but it might not hurt as things are getting more and more difficult under this Administration. But you cannot be deported under the law, and we have not heard about people with Withholding being detained at check-ins (unless maybe you have a criminal record), Take care, Jason

Reply

mainu Patel September 29, 2017 at 12:24 am

Hey Jason, thanks for your time and great information.
Dear thanks your so much Sir. Great insight.

Reply

mainu Patel September 29, 2017 at 12:28 am

Hey Jason, thanks for your time and great information. I o not have any criminal . Dear thanks your so much Sir. Great insight.

Reply

Tolulope Akintunde September 23, 2017 at 10:06 am

Hi please I need your help

I and my 5 months old daughter applied for assylum after 159 days we both applied for EAD and today I checked online hers was denied and mine is still pending . What can be the reason and what can we do . It’s almost impossible to live in the USA without social security

Reply

Jason Dzubow September 25, 2017 at 6:42 am

You will have to wait to receive the rejection letter to know why it was denied, and then you can respond. There is no reason that a 5 month old child needs an EAD. Perhaps she was denied because she was not yet born when you filed for asylum and/or she is a US citizen? Take care, Jason

Reply

Patel September 16, 2017 at 6:51 am

I call that number it say 0 days have left n you file your asylum,please know the dhs calculate 180 days ead clock ,
Like that so what i need to that please help me

Reply

Jason Dzubow September 18, 2017 at 6:35 am

If you are call 800-898-7180 and it says “zero days have elapsed,” it means you are not eligible for an EAD yet – you need to wait for 180 days to have elapsed, but I am not sure whether this is your question, or whether your case is in court or with the asylum office, so I cannot really tell you more than that. Take care, Jason

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Patel September 18, 2017 at 2:48 pm

And my wife case it say ‘there is no clock”
So i can apply EAD FOR her or what ?
If you need my A number let as know ,

Reply

Jason Dzubow September 19, 2017 at 6:30 am

If the case is in court, but there is no clock, it normally means that the person is not eligible for an EAD. Maybe talk to a lawyer to see whether she can do it, or you can just apply. Since the first EAD is free, there is really not much to lose. Take care, Jason

Reply

Patel September 14, 2017 at 1:29 am

I have asylum case ,when i have first court date (3/3/2016) same day ij administrative closure my case ,
Can i still apply my EAD ?

Reply

Jason Dzubow September 14, 2017 at 9:50 pm

I do not know about your case, but normally, if a person has a pending asylum case and the “asylum clock” has passed 180 days, he can file for the EAD. Even if the case is administratively closed, he can still continue filing for EAD renewals. You can check your asylum clock by calling 1-800-898-7180 and typing in your Alien number. When instructed, press 2, and the computer will tell you how many days are on your asylum clock. If it is more than 180, you should be eligible for the EAD. Take care, Jason

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Raman September 9, 2017 at 12:12 am

Hi, can change of immigration court after apply of EAD denied my application.

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Raman September 9, 2017 at 12:09 am

Hi, I just want to know that after apply of EAD the case move other immigration court this will denied my EAD.

Reply

Jason Dzubow September 10, 2017 at 10:48 am

If your “asylum clock” has reached 180 days, it should not affect anything if you move. But if the clock is less than 180 days and you move, your clock may stop and then you will not get the EAD. You can check the number of days on the clock by calling 800-898-7180 and entering in your Alien number (it is a computer, so you do not have to talk to anyone). Take care, Jason

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Meli September 7, 2017 at 1:23 pm

Hi Jason, I applied twice for a work permit while i have a pending asylum, but now my case has been approved and issued a grant by an IJ, now I want to apply for EAD for documentation purpose, i know I dont need to have EAD to work, but i prefer to have it. Do i need to pay the filing fee or not?

Thank you!

Reply

Jason Dzubow September 8, 2017 at 3:13 pm

For the first EAD based on asylum granted, you do not need the fee. You should have received “post order” instructions from the IJ about making an Info Pass with USCIS. Once you do that, I think you get the work permit, and you do need to do it. Ask your lawyer about that, or if not, maybe you can Google “post order instructions immigration court” and you should find the USCIS website about this. Take care, Jason

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Omar August 30, 2017 at 11:44 am

Really thank you for helping people out.

Here is my case: I applied for asylum in 2015. Then after the 150 fays I applied for an EAD under (c)8 category which I got and it expired on 3/18/17.. In the meantime I had been granted ” Prosecutorial Discretions” (Witholding og DEportation (a)10. on August 16 2016. On May 16 2017 I sent a new application of EAD under (a)10.. All the processes were sent to me fingerprints and so forth till now.. So Monday August 28 I put up a notice as my EAD app has passed 90 days.. I am still waiting for an answer.. Should I worry about not being able to get a new EAD?

Reply

Jason Dzubow September 1, 2017 at 6:22 am

I answered this when you posted it before. If you did not get that, let me know. Thank you, Jason

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Omar September 1, 2017 at 7:02 am

Hey Jason,

I tried locating your answer but I could not find it in the previous comments…

Reply

Jason Dzubow October 17, 2017 at 6:13 am

Sorry, I cannot give specific advice since I do not know the case. If you are renewing an EAD, and not changing categories, generally, the category is listed on your existing EAD, and so you can use that. Also, I am not sure what c-10 is, and I think that is not the correct category, but I do not know about your case, so I am not sure. Take care, Jason

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Jason Dzubow October 9, 2017 at 6:38 am

Thank you for that – it is helpful, Jason

Reply

Jason Dzubow October 11, 2017 at 6:27 am

Sorry, we are in Washington, DC. We can do cases in LA, but it is better (and probably cheaper) to find a local lawyer. I do not recommend lawyers here, but you can look for them on http://www.aila.org. Take care, Jason

Reply

Hanah October 11, 2017 at 11:57 am

Hi Sara! I would suggest my lawyer, Atty. David Haghighi. You can look him up on the internet. He’a experienced and very meticulous.

Reply

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