The War Over Work Permits

These days, it takes approximately forever to complete an asylum case. Because of the long wait, the law allows asylum seekers to apply for an Employment Authorization Document (“EAD”), which lets them work lawfully while the case is pending. In one of its many regulatory attacks on the asylum system, the Trump Administration recently implemented new rules making it more difficult to get an EAD. But those rules have been challenged in court. Let’s take a look at the law, the old rules, the new rules, where things stand now, and–most importantly–how asylum seekers might still qualify for an EAD.

As usual, it’s best to start with the law. In this case, INA § 208(d)(2), which provides–

An applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Attorney General. An applicant who is not otherwise eligible for employment authorization shall not be granted such authorization prior to 180 days after the date of filing of the application for asylum.

What this gobbledygook means is that asylum applicants are not entitled to an EAD, but government agencies can make rules allowing asylum seekers to get EADs. However, the soonest an asylum seeker can obtain an EAD is 180 days after he files for asylum.

Introducing the new EAD application process.

Based on this law, a government agency (the U.S. Department of Justice) created regulations that allowed asylum seekers to apply for an EAD 150 days after their asylum application was filed. Why 150 and not 180? Because the DOJ figured (optimistically) that it would take at least 30 days to process the EAD application, and so if the applicant files after 150 days, the EAD would not be issued until at least 180 days had passed. The regulations also provide that any delay caused by the applicant “shall not be counted” towards the 180 days. This is the origin of the dreaded Asylum Clock, which tracks how much time has passed since an applicant filed for asylum (and which has a tendency to behave in arbitrary ways, much to the chagrin of asylum seekers and their attorneys). So if an asylum applicant causes a delay–by rescheduling her interview, for example–the Clock would stop until the period of delay ends (in this example, the period of delay would end when the applicant attends her interview). These rules have remained largely unchanged for the past 25 years, until August 25, 2020, when new regulations went into effect.

The new rules make a number of major changes to the way EADs are processed for people seeking asylum. The most important of these rules are–

  • The waiting period to apply for an initial EAD based on asylum pending is extended from 150 days to 365 days. In other words, instead of waiting five months to apply for an EAD, asylum seekers now have to wait one year before applying for an EAD. This rule applies to asylum seekers who file for an initial (first time) EAD on or after August 25, 2020 (regardless of when they filed for asylum).
  • EADs will be denied for anyone who filed for asylum more than one year after arriving in the United States, unless an Immigration Judge or Asylum Officer determines that the applicant meets an exception to the one-year asylum-filing deadline. Such a determination cannot be made until the applicant attends an asylum interview or an Individual Hearing in Immigration Court, and so this effectively means that people who file for asylum after one year in the U.S. will not get an EAD while their case is pending. This rule applies to people who file for asylum on or after August 25, 2020.
  • Asylum applicants who entered the country “unlawfully” are ineligible for an EAD.
  • USCIS’s authority to deny EADs as a matter of discretion is expanded.

Asylum seekers have not capitulated to these changes, and there is currently at least one lawsuit challenging their validity. As of this writing, the judge in that case issued a preliminary injunction blocking the most onerous of the new rules, but only for asylum applicants who are members of two organizations involved in the lawsuit: Casa de Maryland and the Asylum Seeker Advocacy Project. This is a preliminary ruling based on the judge’s initial evaluation that many of the new rules are illegal; it is not a final decision one way or the other.

The bad news here is that the judge’s preliminary injunction blocking implementation of the new rules applies only to members of Casa and ASAP. The good news is that it does not apply only to current members of these organizations. This means that for people who are ineligible for an EAD under the new rules, you can join one of the organizations and potentially become eligible for an EAD based on the preliminary injunction. Thus, asylum seekers who are (or who become) members of these organizations are eligible to apply for an EAD after 150 days (as opposed to 365 days). Also, asylum seeker/members who filed for asylum after August 25, 2020, and who were in the U.S. for more than one year before filing for asylum, are still eligible for an EAD. You can learn more about the effect of the judge’s injunction here. You can join ASAP here, and Casa de Maryland here (you only have to be a member of one of these organization to qualify for protection under the preliminary injunction).

The other piece of good news from the injunction is that it may signal the judge’s intent to issue a favorable decision on the merits of the case, and to permanently block the new rules for all asylum seekers. When the judge will decide the merits of the case, we do not yet know.

Another unknown is the exact procedure by which members of Casa and ASAP can obtain an EAD. I reached out to an organization involved in the lawsuit, and it seems that the logistics of the process are still being worked out. In the mean time, if you think you would benefit from becoming a member of one of the organizations, you can join, so at least that piece will be in place when it comes time to apply for an EAD (and also, these are great organizations, so there are many good reasons to join). 

One final note, for those seeking initial EADs or renewing expiring EADs, keep in mind that fees are going up on October 2, 2020, and that USCIS keeps revising the I-765 form. Make sure to check the website and file the correct edition of the form, and the correct fee (or fee waiver).

The Trump Administration is working overtime to make it difficult for asylum seekers to obtain status in the U.S. But thanks to asylum-rights advocates, it is often still possible to win asylum and to obtain an EAD while your case is pending.

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182 comments

  1. […] Employment Authorization Document (“EAD”), the dependents become eligible as well. The first EAD is free, and so most people apply for that, even for minor children. In this way, the children will have a […]

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  2. […] blocked by a federal court. And so–as long as you jump through certain hoops–it remains possible to apply for an EAD 150 days after filing for asylum. Most observers expect the Biden […]

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  3. Hi,
    I’m submitting my EAD renewal first time on my own.
    I’m stuck at Biometric situation.
    I know the rules have changed recently.
    I just want to know how and when do you pay the ‘new’ additional biometric $85 fee? And also this means that we’re required to have a biometric by default for each renewal now? I only had biometric appointment ONCE when I filed for my permit first time (5yrs ago)
    (God bless you for all the work you do.)

    Reply
    • Most people need to pay the fee, but I do not know your case and so I do not know for sure what you need. For people with asylum pending, I think everyone needs to pay the fee for biometrics unless you are a member of Casa de Maryland or ASAP. You can check the I-765 web page at http://www.uscis.gov, which should explain who has to pay. Whether you will actually have to attend a biometrics appointment, I do not know, as some people seem to get appointments and others do not. Take care, Jason

      Reply
  4. Hi Jason,
    My EAD expired 06/05/2019 then I applied for renewal on august 2020. I got a letter from USCIS 09/02/200 saying my was received.
    Now it has been 4months. Every time when I check the my case status, it shows my case was received. My questions are,
    1- do you still think I can get my work permit renewed? Under these new rules, and the mistake of my one year late submission?
    2- I only paid $410. On the receipt shows application petition fee $410, total amount received $410. Biometrics fee $0, total balance due $0. (I saw a comment from you on this article you said the new total fee is $495)
    Do you think they might reject my application because I didn’t pay the biometric fee? But it has been 4 months no reply from uscis, even though I didn’t pay that fee!
    My lawyer only asked for $410 for the uscis.
    3- can I apply for the RTD document? With these whole mess I’m in right now?

    Thank you sir!

    Reply
    • 1 – Yes, it should be renewed. But you did not get the 180 day automatic extension, since you filed after the old card expired (the 180 days would have expired by now anyway). 2 – If you filed under the old fee, you should be fine. It seems like USCIS accepted the fee, so it sounds like you are ok (though I thought the new fee went into effect on August 25, 2020). Hopefully, in the worst case, if USCIS needs the biometric fee at this point, they will request that from you and not reject the application after all this time. 3 – That is an unrelated application (form I-131, available at http://www.uscis.gov) and so you should be able to do that with no problem. Take care, Jason

      Reply
  5. Hi Jason,
    Thank you for your blog, posts, and comments here! It is a source of help and hope for many asylum seekers.
    I have a question I can’t find a clear answer on the USCIS web site. I applied for asylum in May 2015, was interviewed in August 2017, and got the referral to the Court in Nov 2020. Master Calendar Hearing was originally scheduled for Sep 2020 in Boston, MA, but in Aug 2020 was rescheduled by the Court to Apr 2023. My and my wife’s current EADs will expire in Jun 2021. The question is where we need to File our requests for EAD renewal? Should we still mail them to USCIS Dallas Lockbox as asylum applicants (category (c)(8))? Or there is another mailing address for those who are currently in removal proceedings and waiting for a Master Calendar Hearing for years?
    I will appreciate your help.

    Reply
  6. Hi Jason,
    I did my Asylum interview in 2018 in Virginia, I didn’t here back from them. Now, I planed to move to Washington state and planed to submit change of address. Do you think my move will make things complicated? If they (the Virginia office) need additional document do they requesting me? Which office (Virginia or Washington State) made the final decision on my asylum.

    Reply
    • If they need to do a second interview, it will take place in WA (the San Francisco asylum office). But otherwise, VA will likely make the decision. You might want to email them to inquire about the case and indicate that you are moving. You can find their email if you follow the link at right called Asylum Office Locator. If you move, you also have to file form AR-11, available at http://www.uscis.gov. Take care, Jason

      Reply
      • Hi Friends I hope y’all are doing alright and your staying safe, @Jason I greet you in a special way and thank you for all your help on this Forum. I hope this will be helpful for all who are able to read it. I did put in for a renewal of my EAD and it was received on 10th September by the Nebraska Office, online the case updated to old finger prints applied on case, meaning the finger print money I paid I guess was to help processing due to the financial challenges right now everywhere, and that was the last update I got. It’s been five months now ever since but since there was an extension of the 6months to the EAD each time I try to make an inquiry about past processing time, they say am still in the normal processing time. Meaning that as long as I still have the extension of the 6months,am still in the normal processing time which is 5.5-8months to process a renewal for i-765. So its now along wait. So if you have waited for over 4months the wait is still on but no matter what. Do not loose hope, the permit will come eventually.

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        • Everything is so slow, but it sounds like the case is moving along, so I hopefully you will get the new EAD soon. Take care, Jason

          Reply
  7. Hello

    My husband is a derivative on my asylum application, my case was referred to the court recently . He applied for a renewal of his EAD but no notice of receipts yet after 1 month. should he have included a copy of the court referral document in the EAD renewal documents?

    Reply
    • If you have that and the court order with the next hearing date, you should include copies of those. I doubt that is the reason for the delay here, though. Probably it is just so because many USCIS cases are slow. If you paid by check, you can see whether the check has been cashed. If so, on the back of your check (that you can get from the bank) will be a receipt number. Otherwise, the receipt should come soon. I guess if you feel it is too long, you can try calling USCIS (800-375-5283) to see whether they can confirm that they have it. Take care, Jason

      Reply

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