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Federal Court Prohibits the New 365 Day EAD Wait Period for Certain Asylum Seekers

A preliminary injunction has been granted prohibiting the new 365 EAD waiting period for asylum seekers and allowing the 150 day waiting rule to remain in effect for certain member applicants.


New rules designed to prevent many asylum seekers from working legally in the United States are being challenged in federal court. On September 11, 2020, in the lawsuit CASA v. Wolf, a federal judge ruled that the new work authorization rules will likely violate the law and temporarily prohibited the government from applying certain parts of the rules to members of the nonprofit organizations that initiated the case. However, the rules still apply to asylum seekers who are not members of these organizations.


The federal court orders allows member asylum seekers to REMAIN ELIGIBLE to:

  • Submit an application for work authorization 150 days after they receive their asylum application receipt.

  • Receive their work permit, also known as an EAD or Employment Authorization Document, after 180 days.

  • Apply for a work permit even if they filed their asylum application more than a year after arriving in the United States.

  • Have their work permit processed within 30 days.

  • Members of ASAP and CASA are NOT subject to:

  • Biometrics fees: ASAP and CASA members will not be required to submit additional biometric information if they have already done so for their asylum application, nor will they be required to pay $85 for fulfilling the new biometrics requirement.*

  • Discretionary denials: ASAP and CASA members who are eligible for work authorization must receive that authorization.




For those that are not members of CASA or ASAP, the new rules for asylum seekers remain in effect. To summarize, these rules are as follows:

  • For all asylum seekers who did not file EAD applications before August 25, 2020 because they did not yet reach the 150 day waiting period mark, must thereafter wait 365 days (one year) after the receipt date on their asylum receipt to be eligible to apply for a work permit. THE 150 DAY RULE NO LONGER APPLIES.

  • One-year filing bar: Asylum seekers who filed their asylum application on or after August 25, 2020 and more than one year after arriving in the United States will no longer be eligible for a work permit, unless and until a USCIS officer or immigration judge finds that they qualify for an exception, or unless they are a child who is designated an “unaccompanied minor.”

  • Bar for entering without inspection: Asylum seekers who cross the border on or after August 25, 2020 and do not present at a port of entry are not eligible for a work permit, unless they meet certain limited exceptions.

  • Criminal bar: Asylum seekers who have committed or been convicted of certain crimes will not be eligible for work permits.

  • Automatic termination of work permits: Starting on August 25, 2020, if the immigration judge denies an asylum seeker’s case and the asylum seeker does not appeal to the Board of Immigration Appeals (BIA) within 30 days, OR if the asylum seeker does appeal but the BIA denies the appeal, their work permit will terminate automatically and cannot be renewed.

  • Repeal of the 30-day processing rule: Starting on August 21, 2020, the government will no longer have to make a decision on an initial work permit within 30 days.

  • Applicant-caused delays: Starting on August 25, 2020, the government will no longer stop the asylum clock for specific reasons. Instead, the government will deny applications for work permits if they decide that there are “unresolved applicant-caused delays,” for example if the asylum seeker missed a biometrics appointment.

  • Biometrics requirement and fee: Starting on August 25, 2020, the government will charge an $85 fee for biometrics for asylum seekers applying for a work permit.*

  • Discretionary denials: Starting on August 25, 2020, the government will have discretion to deny requests of employment authorization even when the asylum applicant meets the requirements.

It is possible to become a member of these organizations. Please talk to an attorney about your eligibility and your specific case!


To discuss your case with Alina Kaganovsky, Esq., contact us.


NOTE: This article is for informational purposes only and is not a substitute for advice from an attorney. No attorney - client relationship is entered between reader and Alina Kaganovsky Law PLLC without a written and signed agreement.


*Read the latest news regarding the Court ordered injunction on the new USCIS fee rules here.


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Alina Kaganovsky, Esq. is an attorney licensed to practice law in New York, New Jersey and
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