How Will the New Employment Authorization Rules Impact Asylum Applicants?

On August 25, 2020, regulations issued by DHS will take effect that will change the process for those with pending asylum applications to obtain an Employment Authorization Document, or “EAD.” Please note that the following rules pertain only to EADs sought by ASYLUM APPLICANTS.

Some of the changes outlined in the new rule include:

  • Increase the waiting time from 150 days to 365 days for an asylum applicant to be eligible to apply for an initial EAD. This will apply to any asylum seeker who has not accrued 150 days on their “clock” before August 25. The new rule will therefore affect anyone whose asylum application was received on or after March 28, 2020, which is 150 days before the effective date of the new rule.

  • Prevent asylum seekers who file more than one year after entering the United States from obtaining an EAD until an adjudicator finds a one-year filing deadline exception.

  • Eliminate the “asylum clock” and instead deny EADs for “unresolved applicant delays.”

  • Prevent asylum seekers with certain criminal convictions (aggravated felonies and certain lesser convictions) from obtaining an EAD. This applies to particularly serious crimes and serious non-political crimes where the conviction or offense triggering the bar occurred on or after August 25, 2020. The aggravated felony bar applies to any conviction regardless of the conviction date. 

  • Automatically terminate EADs following asylum office denials; and terminate EADs 30 days after immigration judge denials, unless the case is appealed to the Board of Immigration Appeals.

· This final rule will not apply to EAD applications pending on or before August 25, 2020. The final regulatory announcement states that EAD applications, including renewals, postmarked or electronically submitted on or after August 25, 2020 will be adjudicated under the rule.

A separate set of regulations will take effect on August 21, 2020, that remove the 30-day processing period for asylum-pending EADs. There will be no mandated processing timeline. While this rule creates the potential for significant delays in receiving the EAD card, there is a form of relief available when “unreasonable delays” occur that would require USCIS to make a timely decision.

This rule also removes the EAD Renewal requirement that pending asylum applicants file for renewal at least 90 days before the EAD's scheduled expiration.

I strongly urge clients who will be affected by these rule changes to file EAD applications before the new rule takes effect on August 25, 2020, and also before the elimination of the 30-day processing time deadline, if possible, by August 21, 2020. If you have any questions about how these EAD rules will affect your eligibility or your processing times, please do not hesitate to contact me.

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