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.

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.

Originally posted on the Asylumist: