When Can Asylum Applicants Get a Work Permit (EAD Card)?
Asylum applicants don’t qualify for a work permit until their case is won or a certain number of days have passed with no decision.
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Under U.S. immigration laws, only certain immigrants are allowed to work, usually after they apply for a work permit called an Employment Authorization Document (EAD). The only sure way to receive a work permit as an asylum applicant is, unfortunately, to win your case. After a win, you would not only gain the right to work in the U.S., but would not need to apply for an EAD with which to do so. Your asylum grant allows you to obtain an unrestricted Social Security card, which is all you need to present to an employer.
However, some applicants for asylum will qualify based on the length of time they’ve waited for a decision on their case, as discussed in this article.
How Long Must an Asylum Applicant Wait Before Qualifying for an EAD?
As of August 25, 2020, in order to apply for an EAD with a pending application, you will need to have been waiting 365 days or more with no initial decision on your application from the asylum office or from the immigration court. (The time period was formerly 150 days.)
Is a wait that long likely to happen? In the past, you could expect to wait months or even years before you spoke to an asylum officer or immigration judge about your asylum application. But USCIS has taken steps to combat what it saw as a problem of people applying for asylum mainly to get a work permit. In 2018, it began scheduling recent asylum applicants BEFORE people who’d applied earlier, to make sure they had less of a chance of receiving a work permit. (Speak to an attorney for the latest information on how long you are likely to wait.)
IMPORTANT EXCEPTION: The above rule changes, lengthening the required wait to 365 days, are the subject of litigation. They were temporarily put on hold by a federal court in the case of Casa de Maryland, Inc. v. Wolf, pending the final outcome of the case. However, this court injunction affects only members of CASA de Maryland (CASA) and the Asylum Seeker Advocacy Project (ASAP). Contact those organizations before attempting to apply for a work permit to see whether it’s still possible to become a member and benefit from this litigation.
When Your I-589 Is Considered “Filed” With USCIS If You Apply Affirmatively
If you’re applying for asylum with USCIS (“affirmatively“), you’ll submit your application by mail. Then you’ll get a receipt notice telling you when USCIS receives your application, which will be the date you begin counting the 150 or 365 days (depending on which rules apply to you).
When Your I-589 Is Considered “Filed” If You’re in Immigration Court Proceedings
If you’re applying for asylum after being placed in removal proceedings, it was formerly possible to “lodge” (give to the court in person or, during the COVID-19 pandemic, via email) a not-entirely-complete asylum application in order to start the clock. In 2020, however, the courts announced they’d stopped allowing the practice of lodging.
Another option if you’re in removal proceedings is to file your full asylum application with the immigration court as part of the proceedings. That application will be the one the immigration judge reviews in considering your case for asylum. The court will stamp your copy with the date, so that when you apply for your EAD you can prove to USCIS that the 150 or 365 days started that day.
Your wait to apply for an EAD could be even longer. If your asylum application has been been delayed by something you did and the delay is still ongoing when you apply, your EAD application will be denied under the new rules. (Under the old rules, your delay would “stop the clock,” and restarting it could be difficult.)
You might end up delaying your asylum application for any of various reasons. For example, you might request more time, or fail to show up for a fingerprinting appointment, or request to submit additional evidence, or submit additional evidence less than 14 days before your interview, or fail to bring an interpreter to your interview.
If you’re in removal proceedings, the government can consider your case delayed if you ask for your case to be postponed so you can get an attorney; if you ask for more time to prepare your case; if you say no when the judge asks you if you want your asylum claim to be heard sooner than normal; or if you file a motion that delays your case.
Procedures to Apply for a Work Permit (EAD)
If the required number of days pass with no initial decision on your asylum application, you’ll need to determine whether you are eligible for a work permit and take steps to apply for it.
In the past, immigration regulations gave USCIS up to 30 days to make a decision on I-765s from asylum applicants. However, the government has done away with that regulation as well in 2020, saying USCIS needed more “flexibility.”
The application process involves filling out USCIS Form I-765. For detailed instructions, see How to Apply for a Work Permit as an Asylum Applicant. For in-depth information on asylum and refugee protections and all key immigration law issues, stay subscribed to fdlegal.com.
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