A New Type of EAD Denial

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.

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508 comments

  1. My case was affirmative asylum when I was over 150 the day I filed my work permit, I received denied that said You have not reached 150 days. I filed again and for the 1st time I saw Administratvr close. My question is While my case is pending and I have not received 150 days if ny case be the Administrative close, am I legally entitled to receive the Employment Authorization ?

    Reply
    • If the case was in Immigration Court and the court case was dismissed, then there is no more asylum case and so you would not be eligible for a work permit. Though you may be eligible to file an asylum application at the Asylum Office – see the Special Instructions on the form I-589 web page at http://www.uscis.gov (also, if this has happened, it is best to file as quickly as possible, since your case could be affected by the one-year asylum filing bar – I wrote more about that bar on January 18, 2018). If the case is already at the asylum office, I do not know why it would be administratively closed – maybe email the asylum office directly to ask. You can find their email if you follow the link under Resources called Asylum Office Locator. Take care, Jason

      Reply
  2. Hi Jason,

    I have a question regarding “lodging” an application at the immigration court’s clerk to start the asylum clock for a person who is in removal proceedings and paroled from detention. Does the clerk evaluate the content of the lodged application, other than basic identification information such as name, address, A-number etc? The reason I am asking is whether it would be ok to lodge an application as soon as possible without spending time on completing the asylum application with all the evidence and story, as this process can take a few months. Can someone simply put basic necessary information to I-589, lodge it with the clerk, start the asylum clock, then complete his application with all the evidence, etc. and then file this complete package later with the court? Is there any harm in this? Would the “incomplete” lodged application in any way hurt the applicant either at the clerk’s decision to start the asylum clock OR later in the court’s decision related to the case?

    Thank you very much!

    Reply
    • At least in my local courts, lodging is no longer a thing. We now file the I-589 with the court. The difference is that in lodging, the court stamped the I-589 and returned it to you, so it didn’t much matter what you wrote on there, as long as the name and Alien number were correct. Now, since we file the case, the entire I-589 should be as accurate as possible, since the court will keep a copy (and so will DHS). That said, if you complete the I-589 accurately and submit it, you do not need to submit supporting evidence to get the clock started (though the court does not always start the clock, and you may have to contact them and bug them to start it). When we do this, for questions on pages 5 to 8, we put a very brief explanation – a few sentences at most – and then write, “I will submit an affidavit with additional details.” We submit the affidavit and other evidence later. In short, all you need to do to start the clock is submit an accurate I-589 form; everything else can be submitted later per the Immigration Court Practice Manual. Take care, Jason

      Reply
      • Thank you very much Jason. What do you mean with “lodging is no longer a thing”? Do your local courts no longer do lodging or do you not prefer doing it and instead prefer filing? Thanks again.

        Reply
        • I don’t know if the practice has been discontinued, but I think it has – at least in my local courts. We now just file the I-589, the court accepts it, and it is part of the case record (and it hopefully starts the clock). Take care, Jason

          Reply
          • Hi Jason,

            Thank you for all the information. I was wondering when one can lodge or file his/her application? When we call the automated case information hotline, it says that the A-number does not match to any record in the system. Do we need to wait until the A-number appears in the system or can we lodge/file before then?

            Thanks.

          • Once the A-number appears in the system, it means that the court has your case, so normally, you would file the I-589 after that. However, you need to be aware of the one-year asylum filing deadline (I wrote about that on January 18, 2018). You might try calling the court to ask about whether they have your case and see if you can file or lodge it as soon as possible. You can find the court’s phone number if you follow the link at right called Immigration Court. Also, the sooner you can file it (or lodge it), hopefully, the asylum clock will start so you can get the work permit eventually. Take care, Jason

  3. Hello Jason hoe doing well, i need to renew my wife and i EAD cards, i have pending decesion, my attorny wants 700 charge me to fill the forum but i can not afford it how can i do it by my self?! Do i have fill the forum seperatly for my wife and i ? And i want pay filling fee by. Credit how can i. Do that i read from uscis fir credit the address is diffrent howcan i find the address? Also can i use my credit card information for my wife application as well or no?Please help me
    Thank you

    Reply
    • You each need your own separate application. The I-765 instructions explain what you need to do (available at http://www.uscis.gov) and give you the mailing address. If you ask your attorney for a copy of your file, it should contain the original application for an EAD – the attorney is obligated to give you a copy. You can use that as a model, but you also have to include a copy of the expiring EAD, front and back. As for the fee, I never pay by credit card, so I do not know, but it should be in the instructions. If you cannot afford the fee for renewal, you can request a fee waiver using form I-912. If you pay the fee, you can pay yours and your wife’s with the same credit card. Take care, Jason

      Reply
      • THANK YOU SO MUCH JASON.

        Reply
  4. Hello Jason,

    I hope you are well!

    I am about to renew my EAD based on pending asylum, this past summer the USCIS supposedly sent me an interview notice but I have never received it. I responded to the Appear Failure notice and they accepted my request to reschedule the interview. that was September of 2018, never hear back from them.

    My questions here are, Am I still eligible to apply for an EAD renewal since I failed to appear, however they granted my request to reschedule for a new date? Do I need to include both notices, the failure to appear and the granted to reschedule notice when I send the renewal application?

    I appreciate any advice.

    Thank you,

    Reply
    • You should still be eligible. I suppose you can include both notices, but if you do that, maybe you should also include a brief cover letter explaining that you did not get the notice and so the Asylum Office is rescheduling the interview. Take care, Jason

      Reply
    • Hi Jason I wonder if having a court case which is class b misdemeanor under plea in abeyance can cause a denial of my ead renewal for pending asylum case. Do you think this kind of issue can create negative impact like making me ineligible to even renewing my ead based on my pending asylum case? Can you please inform me about that?

      Reply
      • I do not think so – I think only an aggravated felony would make you indelible. Per the instructions, you will need to submit documentation about the arrest, including the disposition (conclusion) of the case, if you have that. Take care, Jason

        Reply
        • What I feel is the same. I guess I will need to say yes under that question which asks me whether I was arrested or convicted a crime and attach the court report which basically shows what I have on my name and what details related to that are. Since it is a class b misdemeanor as a result of ludicrous suing by my former girl friend, I am hopeful it will not create any bad result like denial. Other then my case has been pending since 30th of March of 2017 at Houston Asylum Office and I keep wondering when I can be invited for my interview under this new lifo system. Hopefully this year! Additionally, my ead will be expired by the 15th of October in 2019, so when do you think the best time is sending my I-765 for renewal? I am sure there will be fee around $400 since it is not the initial one for pending asylum ead. Is it again be valid for 2 years if it is approved or will keep going as one year at each renewal? Thanks for your helpful blog for asylum community!

          Reply
          • You can apply to renew the EAD up to 180 days before the old card expires. The fee is $410 and the new card should be valid for 2 years. As for the conviction, remember that it does not matter what you did – it only matters what you were convicted of (usually). If this conviction in any way could relate to domestic violence, it could have severe consequences for any type of immigration case, including asylum. You should talk to a lawyer about that to be safe. Take care, Jason

  5. My husband is asylum applicant and his case was denied by the officer before 1 month, we are waiting for the court, we want to renew our EAD, which category should we put? C8 pending asylum??
    Are we able to renew our EAD??
    Thank u

    Reply
    • It sounds like he got the first EAD based on pending asylum and that is still his status, even though he is now in court. If so, then the category is c8. Take care, Jason

      Reply
    • First the case has been filed as a class A misdemeanor as a charge of stalking which also had domestic violence which was really aimed to murder my rights as an immigrant by my former girl friend. After a long negotiation period with the prosecutor the charge has amended to class B misdemeanor as a charge of electronic harassment due to those ongoing text messages. At the end, after I knew the importance of my asylum case I needed to go under the plea in abeyance of 18 months probation to get rid of the case as an advice of my lawyer to protect the process of my asylum case which he has made sure by itself this amended charge will not make me inadmissible or deportable. I also talked to an immigration attorney who has said the same since the charge has been amended. Do you think I still need to be afraid of the situation of my asylum case? It looks like I suppose to be alright but I wonder how they will think when I applied for my ead renewal with the attached report of this court issue which exactly shows my conviction as a class B misdemeanor under electronic harassment as its updated form.

      Reply
    • First the case has been filed as a class A misdemeanor as a charge of stalking which also had domestic violence which was really aimed to murder my rights as an immigrant by my former girl friend. After a long negotiation period with the prosecutor the charge has amended to class B misdemeanor as a charge of electronic harassment due to those ongoing text messages. At the end, after I knew the importance of my asylum case I needed to go under the plea in abeyance of 18 months probation to get rid of the case as an advice of my lawyer to protect the process of my asylum case which he has made sure by itself this amended charge will not make me inadmissible or deportable. I also talked to an immigration attorney who has said the same since the charge has been amended. Do you think I still need to be afraid of the situation of my asylum case? It looks like I suppose to be alright but I wonder how they will think when I applied for my ead renewal with the attached report of this court issue which exactly shows my conviction as a class B misdemeanor under electronic harassment as its updated form. Thanks for replying my questions Jason.

      Reply
      • It sounds like you should be fine to renew the EAD, though you still need to attach documentation related to the charge. If the lawyers have vetting it, it should also not block you from asylum. It is a “discretionary factor”, meaning that if you qualify for asylum, the officer puts all the good about you (including your fears of harm) and all the bad about you on a scale. As long as the good outweighs the bad, you can get asylum. This issue will go on the bad side, so you might want to get some additional evidence for the good side – evidence of rehabilitation or other volunteer work that you do. Again, what you actually did is not so important, but what you were convicted of, is important. They usually do not like when you try to say that you are not guilty; if possible, it is better to apologize and show why you are not likely to repeat any mistakes. Take care, Jason

        Reply
        • How you explain is so valuable to me. When I also checked and read the instruction of I-765 carefully. What it says is only having felonies and 2 or more misdemeanors exclude people to apply for renewal their ead and it must be same for all the other issues like adjustment of status. And since this single offense can easily fall under the petite offense I should be approved when I made my renewal for my ead. About asylum interview, I know I should support my case with a lot of good things to let them weigh the outcomes of all my presence in US to let them see my moral contribution to their society is heavier than this single offense. Being poet and writing the love lines of a human in exile within the deep longing of the peacefulness of the world and being known by his American society as someone who has been pushed to make his books here must be as helpful as my own asylum case’s serious elements. Thanks Jason.

          Reply
          • If you are engaged in creative, positive work like poetry, I do think it is worth mentioning in the asylum case and including some evidence about that (such as some poems). Take care, Jason

  6. Hi!
    I m a derivant from my husband asylum applicant pending case.
    My husband has his AED card but mine has been denied.my attorney reapplied and the usis request for a second time the prouve of asylum derivant.and my attorney send with the stamp of the juge on the asylum application of my husband in the section
    spouse.but they still denied my application.the first raison of denied was that they have Not prouve in the system that I derive from my husband .
    And in the pass at the clock time ,mine have been stop.and my attorney told me that is normal because I m dependant,that I m going to have the AED
    What can I do to have my EAD?

    Reply
    • I am not sure what the problem is, but normally, to start the clock running, you should contact the clerk of the court. Maybe the lawyer can try that. I do not know why your husband’s clock would reach 180 days while yours would stop – that is strange. Also, you might want to make sure you are a dependent in the case (as opposed to simply being listed on the form I-589). Though if you have a clock, it sounds like you are a dependent. Hopefully, the court clerk can help or maybe the judge’s legal assistant, but it is often difficult to communicate with such people. Good luck, Jason

      Reply
  7. Hi, I am a dependent in an asylum application. All the dependents in the family had their ead denied based on administrative closure of the asylum case. The primary applicants ead’s result is still pending. Why has this happened? What corse of action can be taken?

    Reply
    • I wonder if this is a new policy. In the past, a case that was admin close allowed the person to continue renewing her asylum-based EAD (assuming the 180 days had passed). This is because a case that is admin close is still pending; it is just removed from the active docket of the court. I would talk to a lawyer about this. If I learn more about this, I will try to post something here, but maybe one solution will be to put your case back onto the court’s docket and pursue the case, though whether you want to do that probably depends on the strength of the case. You can also call USCIS to ask them – the phone number can be found at http://www.uscis.gov. If that does not help, you can try contacting the USCIS Ombudsman – a link is at right. They may be able to help or at least explain what happened. Take care, Jason

      Reply
  8. Hello
    I need to know If the immigration judge terminated my case what does affect my EAD ? I’m an arriving alien I was in removal proceedings.
    I had my individual hearing after submitting all evidences the same day of my individual hearing the judge reschedule to a master hearing, I tried to ask my representative he told me that the judge gone terminated my case what does mean?

    Reply
    • Typically, a judge only terminates a case if you have some other status or if you are applying for a GC through USCIS (based on marriage for example). Otherwise, they normally would not terminate. Whether that would affect your EAD probably depends on the type of case you have, which I do not know. Take care, Jason

      Reply
      • Thanks Jason for your Answer
        I’d like to know, what kinds of status the immigration Judge can terminated a case?

        Reply
        • The most common situation is where the person has an approved I-130 and is eligible to get a GC based on marriage to a US citizen. It can also happen for people with TPS (sometimes, depending on the judge), or who get their GC or non-immigrant visa based on employment. The latter case is pretty rare, as once you are in court, it is very difficult to get a GC or non-immigrant work visa. Take care, Jason

          Reply
  9. Can I apply for i601a waiver while my asylum case in pending and have master hearing in 2019. I got married with citizen. I filled and alread got i130 approved. My asylum case master hearing in 2019 and is not administratively closed.Can I still apply for i601a waiver ?

    Reply
    • You should talk to a lawyer about that – you can apply for the waiver, but whether that is a good idea or a waste of money, I do not know. It depends on whether the Judge and DHS would be willing to terminate proceedings so that you can actually use the waiver to get your GC outside the US. If you leave the US while your case is pending, that will be considered a deportation, and you will not be able to return on the I-601A waiver. Take care, Jason

      Reply
  10. My husband had an asylum case administratively closed in 2013. His asylum clock has been stopped prior to the 150 days as a result. If we send in an I 765 form along with his asylum application and stamped letter from immigration judge that the case has been administratively closed he should theoretically be able to receive his EAD? Trying to take things into my own hands as we have had no luck with several lawyers that seem to string us along with Nonsensical excuses.

    Reply
    • If the clock is stopped, and it is less than 180 days, he cannot get an EAD based on the pending case. Supposedly, the government will be re-calendaring admin-closed cases (we’ll see if that comes to pass). If that happens, the clock should re-start at the next hearing, and so then he could presumably get an EAD. Take care, Jason

      Reply
  11. Hello Jason, I am the person with granted asylum and I am in the process of adjusting my status. My EAD expires soon. I want to send i-765 form. What category should I put under question 20- is it category c 09 (c9). As I know this category is free of charge. Please, let me know if this is the right category and if fee is waived for this category…

    Reply
    • If you want the automatic 6-month extension of your old EAD, you should file under the asylum category, but then you have to pay the fee. If you want the EAD based on the pending I-485, you can file under c-09. That is free (well, not really, but when you pay for the I-485, it is including in the price), but you will not get an automatic extension of your old asylum-based EAD. Take care, Jason

      Reply
      • Thank you

        Reply
      • So, If I choose C-09, I should still check the box that says Renewal that is the very first question, correct? (the other two options are: Permission to accept employment and replacement).

        Reply
        • If you are renewing under the same category, it is a renewal. If it is a different category, you are applying for a new card. At least that is how we have done it. Take care, Jason

          Reply
  12. Hi Jason

    Employers keep asking my immigration status .I got my EAD
    after waiting the required 180 days .I
    I was applying to professional jobs with my International IT certifications .
    I get a call everyday but they ask for my status & when I tell them that I’m under asylum they say I must be a permanent resident or a citizen and they pause.

    It is disheartening but I’m not sure if it is the fact on ground ?
    Is this the legit or ….?

    Thank You !

    Reply
    • I think it would depend on the job. Maybe you just want to tell them that you have a work permit and try to avoid giving the specific status. There are anti-discrimination rules, but I do not know if asylum seekers are protected. Take care, Jason

      Reply
  13. Hello Jason
    Good morning. Thank you for your reply and Please which one is GC and as I applied for an appeal can there be any detain even if they invited for an interview?

    Reply
    • If the case is still on appeal, and you marry, you may still be able to adjust status, assuming you are eligible. I doubt you would be detained at the interview, but I do think you should talk to a lawyer to make sure you can do this, and to understand the risks. Take care, Jason

      Reply
  14. Hello Jason
    Please my question is that as judge denied my asylum case, Can I be able to file The form I-130 as I have arleady married longtime ago but didn’t have in mind that i can still file with it, and is it possible to reopen my case again? please advice me on what I can do.Thank you

    Reply
    • Your spouse can file the I-130. Whether you can reopen your case or get a green card without leaving the US, I do not know, as it depends on the case. Also, you have to be careful with the I-130, as there may be an interview, and if you have a deportation order, you could be detained at the interview. I am not saying that you should not do this; maybe you should. But you need to talk to a lawyer about the specifics of the case to determine whether it is possible to get the GC, and what is the best way to do that. Take care, Jason

      Reply
  15. Hello Jason,
    I am an asylee and 2 weeks ago I sent the documents to USCIS for status adjustment. I sent the check with $1225 (in this amount included biometric fee).They accepted 2 forms I-485 and I-131 and assigned case numbers. Form I-765 was returned to me with the rejection reason: payment is incorrect or has not been provided. According to the instructions I don’t have to pay for I-765 and I-131 if I send them together with the form I-485. So, I don’t get it. I called USCIS today. They confirmed that in my case I-765 is free. THe suggested to resend the documents together with the copy of I-485 form. For me it doesn’t make sense. They already had all forms with all the supporting documents in one package. Please, advise…
    P.S. my current EAD is valid till December,2018

    Reply
    • USICS cannot be explained. But in this case, when you pay the $1225 for the I-485, that allows you to submit an I-765 and an I-131 at no additional cost. Take care, Jason

      Reply
      • Jason, I would like to share my experience. I sent a question to USCIS lockbox e-mail address. I finally received response from USCIS lockbox support team as following: Please, note that because you are adjusting status as an asylee, under INA section 208, the eligibility category (c) (9) would not be a valid eligibility category, as it only applies to applicants who are adjusting under INA section 245. As an asylee, the appropriate selection would be (a) (5), asylee (granted asylum), the same eligibility category in which your current EAD card was issued.
        So, I gave you word by word explanataion of my i-765 refusal that was sent by USCIS. It means that There is no way I can renew my i-765 for free and I have to pay $410? Also I’ll appreciate if you could state in a simply way which applicants are under INA section 245.
        Thank you

        Reply
        • I have not heard about that before, but if that is now how they are doing it, it may mean that you cannot get the “free” EAD that comes with the I-485 application, and you would have to pay. I do not know whether this is a policy or just an anomaly in your case. INA 245 is just a section of the law that discusses obtaining residency, but I do not remember which section an asylee files under when she adjusts status. We will have to keep an eye on this to see how it goes, but this may be another unfortunate change – this Administration is doing everything it can to hurt non-citizens, so it is not a surprise. If I hear more about this, I will try to post something. Take care, Jason

          Reply
  16. I applied asylum who have been waiting an interview. Now, I will be applying For EAD. It passed 150 days. Which documents Should I add to send ?

    I-94 form
    I-765 form
    2 photo
    I-589 copy
    USICS receipt notice
    passport, ID copıes
    evidence that my form I-589 form. Please let me know. thanks

    Reply
    • I cannot give specific advice like this as I do not know your case, sorry. You should look at the I-765 instructions, as they explain what is needed. Take care, Jason

      Reply
    • Hi Loads

      I applied for EAD by myself and got it in 30 days including the SSN.
      I did as follows :-
      1.read the instruction .
      2.printed the form (2 pages) filled the form with black Inc (since it is allowed to use Inc )
      3.attached the receipt notice of i-589,2passport size photos ,figure print form (which was signed after applying i-589,copy of my passport .

      Then got the acknowledgment of receipt in 5 days .
      Then again received approval notice within 25 days.
      Then go the EAD and the SSN.

      Good luck bro !

      Reply

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