USCIS Proposes New Rule Regarding Asylum Seekers’ Work Authorizations

November 14, 2019

On November 14th, 2019, USCIS announced a new proposed rule regarding asylum seekers’ work authorizations, asylum applications, and interviews. The rule was proposed in response to a White House memo from April 2019 regarding Trump Administration efforts to curtail immigration.

The Proposed Rule

Asylum applicants are typically able to obtain an employment authorization document (EAD) after their case has been pending with USCIS for at least 180 days. The new rule would prevent those who entered the country without authorization from obtaining an EAD on a pending asylum application and would automatically terminate an EAD if an asylum denial is administratively final. The rule is intended to deter foreign nationals from submitting asylum applications in order to obtain EADs but is expected to considerably impact potential asylees’ ability to work lawfully in the United States. This would also directly impact migrants who apply for asylum after crossing the U.S.-Mexican border without documentation.

The USCIS proposed rule would introduce restrictions such as: denying EADs to undocumented asylum applicants; preventing people who have been convicted of certain crimes from obtaining EADs/asylum; and denying EAD and/or asylum applications if the applicant fails to appear for required appointments. USCIS may also potentially deny asylum applicants with ongoing criminal court cases or unresolved arrests. The proposed rule is open for public comment through January 13, 2020.

Work Authorization for Asylum Applicants

To qualify for asylum, an applicant must have faced persecution in their home country based on one or more of five factors: political opinion; religion; race; nationality; or, membership in a particular social group. Under current law, an asylum case must be filed within one year of entry into the United States except in unusual cases. USCIS proposed that the new rule would prevent asylum applicants from applying for an EAD if they filed their case over a year since their last entry.

Once an asylum case has been pending for at least 150 days, asylum applicants are permitted to apply for work authorization via Form I-765 Application for Employment Authorization and obtain work authorization 30 days later; this is usually referred to as the 180-Day Asylum EAD Clock. Currently there is no fee to apply for a first EAD if the applicant has a pending asylum application.

The proposed rule does not change eligibility requirements for asylum. If an applicant wins an asylum case, they can apply for an EAD or work under the authorization of a Social Security card. To learn more about applying for asylum or obtaining work authorization, contact Landau, Hess, Simon, Choi and Doebley to schedule a consultation with an attorney.


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