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.

{ 47 comments… read them below or add one }

Kalac May 23, 2017 at 11:32 pm

Dear Jason,

I applied for asylum in October 2016. In March 2017, after 150 days, I applied for EAD. Later on in March I got my asylum interview and was referred to an IJ. In May 2017 I got my EAD application denied because

“the asylum office administratively closed your proceedings on March 16, stopping your processing clock. The asylum officer transferred your case to the immigration judge on March 24, 2017. As of the date of this letter, you do not have proceedings showing up in the USCIS records, thus the IJ has not restarted the clock concerning the processing of your asylum application. Therefore, you are not eligible for EA as the required 180 days have not elapsed. For info about the EAD clock contact the immigration court that has jurisdiction over your proceedings.”

When I call the 800 line it says that only 25 days have elapsed since my asylum application was filed. These 25 days seem to be the days after my case is with the IJ.

The law, though, says that the days keep accumulating when a case is referred from the asylum office to the IJ. Moreover, my case was not closed but referred to an IJ. I contacted the court administrator via email and still wait for an answer about my clock and eligibility for EAD.

My master hearing is in July. Have you heard sth similar before? If they fix my clock, should I appeal to the decision or just re-apply the I-765?

Best regards

Reply

Alex May 24, 2017 at 9:09 am

Everything will be fine, Jason will guide you. But how did you get your interview that fast? Did expedite your application? Please tell us.

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John May 21, 2017 at 8:30 am

Hi Jason
Thanks for this great forum. I have a question I am reaching the time to file first EAD soon ,when I filed the I-589,We only got my name on the initial acknowledgement of receipt my wife and kid are no write any where and tother apply EAD copy of that receipt is required .what can they do, can they submit my receipt as their my depents? However each got letter for fingerprint .
Second question, are we all sending EAD application in the same envelop or we must send it separately as I didn’t read anywhere saying to send them together.
Best regards

Reply

Jason Dzubow May 21, 2017 at 10:39 am

For your family members, you can submit a copy of your receipt and a copy of their fingerprint notices, along with the other evidence listed in the instructions to the form I-765, available at http://www.uscis.gov. You can send them together as long as you clearly indicate there are different cases in the same envelope (and maybe staple each person’s individual application together). Take care, Jason

Reply

bikash gautam May 17, 2017 at 11:56 am

i had the similar problem..i recieved PD by immigration judge…but my i765 was denied because of that

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Peter J May 16, 2017 at 5:34 pm

Hello, Jason. I want to use this opportunity to thank you for your help, please can you be able to represent a client in New Orleans if the client want you to represent him as his new Attorney or your good advice will really help? Thank you.

Reply

Jason Dzubow May 18, 2017 at 10:31 am
Carolina May 15, 2017 at 9:33 pm

Hello!

I am a newbie, I have filled out several work permit applications for clients. Who are in removal proceedings, their case has either been closed or was granted PD. I renewed several and all came back to me with RFE asking to submit the EOIR-42B filled with the court. I went ahead and did that and most of the work permits got denied. Has this happened to you? any advice?

Reply

Jason Dzubow May 17, 2017 at 5:13 pm

I did not think that someone with a Cancellation case was eligible for a work permit if the case was admin closed, but I have not had that particular case. Maybe one of the immigration lawyer list serves or AILA would have an answer to this. Take care, Jason

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Jarus May 15, 2017 at 6:45 am

Hi jason, my status in uscis website reads new card is being produced and as this is my first ead based on asylum pending, how long will it take as the status displayed as of may 11 2017. And i have heard of many people doing biometrics for ead. Do i have to do biometrics because i did once already after filing my asylum on november 16 and did biometrics on december. I am asking so to ensure i have not missed a mail for biometrics. Please help jason

Reply

Jason Dzubow May 17, 2017 at 5:52 am

Most people do not do biometrics for the EAD, and it usually takes between 2 and 4 months from the filing date to card the card. Take care, Jason

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Adi May 14, 2017 at 5:27 am

Hi Jason, I have applied for an asylum and it’s still pending . I had my EAD California ID and including ssn everything got lost. I again applied for my EAD replacement but I got the email that request for initial evidence is missing. But what evidences are required, I did not get any mail in my mail box. I dropped an email and waited for a month but no reply so far.
Now my passport is also expiring this month and after that I will not have any valid ID. Feeling really stuck.
If by any chance they deny my EAD. Will I be just stuck for lifetime?
!*kindly advice.
Regards

Reply

Jason Dzubow May 14, 2017 at 11:15 am

Perhaps you missed a letter from USCIS. Maybe you can call them, or make an appointment to go in-person to ask about the letter. You can find their phone number and/or make an appointment at http://www.uscis.gov. Good luck, Jason

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Srj May 11, 2017 at 7:13 am

Hi jason,
Really happy to see you help people who are in confusion. I need a help too. I applied for my EAD based on asylum application for the first time on 10th of april when i completed my 150 days waiting without decision. I suddenly had to move from my adress to a new one in the same area that the asylum office I applied to serves(i.e: Los Angeles) . I went online to use form AR-11 online itself and the application for EAD -i-765 was said as changed but my asylum case i-589 was not changed as it said did not recognize the receipt number for i-589. Will this automatically change my asylum application adress too ? Or will i have to do it any other way. I feel like i messed up with the adress change at this time. Please suggest me a way and solution Jason. Thankyou

Reply

Jason Dzubow May 12, 2017 at 6:31 am

You should be fine. It sounds like you changed the address for the I-765. For the asylum, you have to send a copy of the AR-11 directly to the local asylum office. You can send by mail, email or in person. You can find their contact info if you follow the link at right called Asylum Office Locator. Take care, Jason

Reply

Ade May 6, 2017 at 10:52 pm

Hi Jason,
This bothers me, does asylum decisions take this long,
Because I know my asylum interview might be coming up soon
Will it take me up to 16 months to get a decision?

Reply

Jason Dzubow May 6, 2017 at 10:59 pm

We have seen decision take 3 days and we have seen them take 3+ years (and counting). Decision are generally slower for people from Muslim countries and for men, but it is very difficult to predict whether a case will be delayed. I did a posting on October 20, 2015 that sort-of addresses this issue – maybe that would help. Take care, Jason

Reply

Aaan May 6, 2017 at 6:05 pm

Hi Jason .i attend my asylum interview 16 months ago and my decision didn’t announce yet.they doing a background check up for me I heard.but recently I apply for Renewal of EAD a week ago and they send me fingerprints again and they also approved my application for EAD before I fingerprint .so I m little confuse that am I going to hear my asylum decision soon or was it for EAD.thanks

Reply

Jason Dzubow May 6, 2017 at 10:49 pm

The fingerprints may not be related to your EAD. You can check the fingerprint letter – if it refers to the I-765, it is for the EAD; if it refers to the I-589, it relates to the asylum case. Either way, it does not necessarily indicate that a decision is coming soon. I recommend you contact the asylum office to inquire about the status of your case. You can find their contact info if you follow the link at right called Asylum Office Locator. Take care, Jason

Reply

Ji May 2, 2017 at 4:03 am

Hello,
I try to renew my EAD recently,but my attorney told me,from this year C10 type EAD will not allow renew. And my clock is 140 days, and case isn’t of status, what should I do?

Reply

Jason Dzubow May 4, 2017 at 6:25 am

C-10 is normally for suspension or cancellation cases, not asylum. If the C-10 renewal does not work, maybe you have to wait until your clock reaches 150 days and apply for the EAD based on asylum (you can apply at 150 days, but are not eligible until the clock reaches 180 days). I think you need to talk to the lawyer to see what is happening – is the clock still moving? Why are you not eligible for the C-10 EAD? What has changed that makes you not eligible? Take care, Jason

Reply

Baghel singh May 2, 2017 at 1:44 am

Hi
I applied for work permit form i765 in January and after a month it get denied and reason was that only 173 days elapsed in my sylum clock which are less than 180 days after two weeks I again applied for work permit after 25 days I got the same letter. What should I do

Reply

Allen May 4, 2017 at 12:03 am

email or visit your local asylum office to ask whether your asylum clock stopped or not. and ask for further guidance

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Jason Dzubow May 4, 2017 at 6:20 am

If your case is with the asylum office, you need to contact the local asylum office (or go there in person) and ask what happened. You can find their contact info if you follow the link at right called Asylum Office Locator. If the case is in court, you probably have to wait for your next hearing for the clock to start. Talk to a lawyer for help in that situation. Take care, Jason

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Mauro April 28, 2017 at 4:57 am

HI Jason, my case was administratively closed and my ead renewal was denied. May I ask if contacting the obdusman has helped in your clients case?

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Jason Dzubow April 30, 2017 at 9:56 am

I doubt it would help in that case – unless the denial was in error. Call 1-800-898-7180 and enter your Alien number. If you push 2, the computer will tell you how many days have elapsed on the clock. If it is less than 180 and the clock is stopped (or if there is no clock), you are not eligible for an EAD and you need to start the clock. This will be difficult if your case is admin closed – talk to a lawyer and maybe they can help, or call the Immigration Court (follow the link at right for the phone number) and ask the clerk. Maybe he or she can help. Take care, Jason

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Carol April 27, 2017 at 8:46 pm

Hi Jason,
My asylum case was also administratively closed because of failure to prosecute at the mater hearing. The asylum file was missing . I was told to go home and l will be notified of the next hearing. The next time l checked the automated line for case status it says the case was closed . 180 days were not yet up for the EAD clock. Can l still apply for an EAD ?

Reply

Jason Dzubow April 30, 2017 at 9:30 am

You can try, but it is unlikely to work. If you don’t mind risking that your case will be put back on the docket, you can contact the Immigration Court (a link is at right), and talk to the clerk to ask about the asylum clock. You may need a lawyer to try to fix the clock issue, and even then, it is sometimes not easy. Take care, Jason

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Sean April 26, 2017 at 12:07 pm

Hi Jason
I have filled my asylum case at end of July 2014 and I sent it to Buffalo local office which I believe it’s under Newark asylum office.
Since Asylum Office Scheduling Bulletin shows Newark in March 2017 scheduled interview for who filled July 2014.
My question is how long more usually taking time to invite who filled in the same time but in local office such as Buffalo instead of main office such as Newark?
I would appreciate if u give me some heads up through timing.
Thx
Sean

Reply

Jason Dzubow April 28, 2017 at 4:57 pm

I do not know, and I suspect that it changes over time. I recommend you email the main office (NJ) and ask. You can find their contact info if you follow the link at right called Asylum Office Locator. Also, in most cases, asylum applications are sent to the Service Center, not the local office, so make sure it is properly filed (if you got the receipt, it is properly filed). Take care, Jason

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Peter J April 25, 2017 at 12:16 am

Hello Jason, thanks for your assistance. My question is based on defensive asylum which asylum application do you need to submit that will start the EAD clock, because I submitted my asylum application to the asylum office in Nebraska and I got the receipt, I lodged my I-589 to the court but because of requesting for more time the clock stopped according to the clerk. My question is can I still go and apply for EAD as the time is up to 180days? Thanks.

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Jason Dzubow April 28, 2017 at 3:20 pm

If you called the phone number 1-800-898-7180 and it told you that there is less than 180 days on the clock, and that the clock has stopped, you cannot get your EAD (unless USCIS makes a mistake, which does happen now and again). To start the clock you may have to try to advance your case, or maybe try to talk to the court clerk and that person can give you some guidance. In court, it is very difficult to start the clock once it is stopped, and it usually does not start until you attend your next hearing. Take care, Jason

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Mauro April 14, 2017 at 3:03 am

I am now in the same situation as your client, my case was administratively closed and my ead was denied a week ago. Do you think there’s anything that can be done to get the work permit?

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Jason Dzubow April 14, 2017 at 6:29 am

First, talk to a lawyer to go over the specifics of the case, as each case is different and maybe there is a simple explanation for the denial or it is something that can easily be fixed. Other options include filing an appeal (expensive USCIS fee and it takes many months), re-filing a new I-765 (maybe pointless if they will just deny it again), or contacting the USCIS Ombudsman (a link is at right; it might help or provide you more info, but it usually takes several months). I think the best bet is to get help from a lawyer. Good luck, Jason

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ADE April 10, 2017 at 6:58 pm

Hi Jason,
If an asylum seeker looses his job through termination of employment or due Expiration of EAD, is the person entitled to unemployment from Social Security office?

Reply

Jason Dzubow April 12, 2017 at 1:48 pm

I think it depends why the job was terminated. I recommend you contact the unemployment compensation office about this. However, if your EAD has expired, you should file to renew. As soon as you get the receipt, the old EAD is automatically extended for 6 months, so you can work during that time. Take care, Jason

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Ade April 23, 2017 at 3:25 pm

Hi Jason,
I had an injury while working with Amazon in 2015, now i cannot bend my middle finger, i told a friend and he said i should report it to Integrity staffing because i got the job through Integrity
which i did, I hope this will not affect my asylum application, i do not want to get into trouble.

Reply

Jason Dzubow April 25, 2017 at 10:14 am

I do not see how that could affect an asylum application. Take care, Jason

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Soliman April 10, 2017 at 4:06 am

Hello sir,
It is now time to apply for the EAD application based on the 150-day [clock] period. Please I just want to know:
1- Is there anything else I should send with the EAD ?
2- Where exactly I should send the EAD ( the same place where I sent the i-589 form or somewhere else ) ?
Thank you.

Reply

Jason Dzubow April 12, 2017 at 1:36 pm

I cannot answer these types of specific questions, as I am not familiar with the case. You should read the instructions and it explains what to do and where to send it. If it is too confusing, talk to a lawyer about the case and they should be able to help you. Take care, Jason

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Suraj April 8, 2017 at 11:33 pm

Hi jason,
It is now time to apply for an EAD for the first time based on asylum application. I am going to post it tomorrow. I just have the receipt from uscis about receiving my application, biometrics letter and my passport. What are the documents to be submitted with i-765 jason? The instructions asks to submit a lot bit i am not sure what they really are. Hope to hear from you soon jason. Have a nice on jason

Reply

Jason Dzubow April 10, 2017 at 3:06 pm

I cannot answer specific questions like that as I am not familiar with the details of your case – you would need to look at the instructions on the I-765. If you make a mistake, USCIS will send you a letter and give you a chance to correct it. Take care, Jason

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Peter J April 8, 2017 at 2:17 am

Hello sir, I am an asylum seeker, my attorney denied the Judge’s offer of the earliest available court date of December 2016,and the Judge gave him June 2018, he was not aware that requesting a later date for the hearing would result in the stopping of my 180-day EAD clock, in Feb.2017, he resigned from the office before he continue my case. Please what can I do to resolve this issue, how can I get my SSN and how can I renew my I-94 card,lack of knowledge regarding the fact that I can get a work with it. Thank you & God bless!

Reply

Jason Dzubow April 10, 2017 at 2:45 pm

I do not know that there is much you can do. Certainly, you can ask for an earlier court date so you can finish your case sooner. Maybe if you have a new attorney, that attorney can say that your last attorney made an error and ask the court to start the clock, but I doubt that will work. Maybe the best bet is to finish the case and ask the court to advance the final date. Take care, Jason

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nouvellevague April 6, 2017 at 8:02 pm

Hi Jason!

I recently filed an application for an Asylum Grant, and expecting the receipt from USCIS in a week. I was wondering if I can travel via plane with only my valid passport and the receipt from USCIS or should I just wait until I get an EAD and SSN? Your help will be greatly appreciated. 🙂

Reply

Jason Dzubow April 7, 2017 at 10:00 am

You should be able to travel inside the US with your passport and USCIS receipt. You should not need the EAD or SSN. Take care, Jason

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nouvellevague April 9, 2017 at 10:50 am

Thanks, Jason! Take care, too.

Reply

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