Can I work while I am applying for Asylum Protection?
Not immediately. In order to apply for permission to work in the United States, 150 days must pass since your complete asylum application was filed where no decision has been made on your case. The rule actually states that a noncitizen can apply after 150 days, but the United States Citizenship and Immigration Service, “USCIS” cannot grant the employment authorization document, “EAD” for an additional 30 days resulting in a total maximum waiting period of 180 days. So, you can apply after 150 days, but will not get your employment authorization sometime after the 180th day.
Is there any difference between filing the application with USCIS compared to filing with an Immigration Court?
In both situations, the main issue to be aware of are delays caused by the noncitizen applicant. If there is a delay caused by an applicant, this could potentially stop the counting of days towards the 180-day period. Reasons for potential delays differ between cases filed with USCIS and cases filed with the Immigration Court.
How is the 180-day waiting period calculated for applications filed with USCIS?
The 180-day waiting period is legally known as the 180-day Asylum EAD Clock. The EAD Clock starts on the date that the complete Asylum Application, form I-589 is received by USCIS.
What will cause the 180-day Asylum EAD Clock to stop?
As stated, delays caused by the applying noncitizen. Examples of delays caused by an applicant that can stop the Clock include:
- A request to transfer a case to a new asylum office or interview location, including when the transfer is based on a new address.
- A request to reschedule an interview for a later date.
- Failure to appear at an interview or fingerprint appointment.
- Failure to provide a competent interpreter at an interview.
- A request to provide additional evidence after an interview.
- Failure to receive and acknowledge an asylum decision in person if required.
For most of these delays caused by the applicant, the clock will be stopped until the next interview date except for failing to appear at an interview or failing to appear in person to receive and acknowledge the decision. In the cases where an applicant is required to appear to receive the Asylum application and the applicant fails to appear to receive the decision, the clock will stop until the case is referred to the Immigration Court where it will restart at the first hearing before the Immigration Judge unless the applicant causes another delay.
If I missed my scheduled interview, will the clock be permanently stopped?
Most likely yes. When you miss a scheduled interview, UCIS will issue a warning letter addressing the applicant’s failure to appear where the applicant is given 45 days to respond and establish good cause for missing the interview. If the applicant responds and demonstrates good cause, then USCIS will treat the response as a request to reschedule and the clock will restart on the date of the rescheduled interview.
If the applicant fails to respond or does not establish good cause, USCIS will refer the case to the Immigration Court where an Immigration Judge will take the case and eventually issue a final decision on the application. In this case, the clock will be permanently stopped unless the applicant responds to the notice by USCIS referring the application to the Immigration Court establishing that the interview was missed due to exceptional circumstances. If the applicant is able to convince USCIS that the missed interview date was due to exceptional circumstances, USCIS will issue a determination letter provided to the applicant, and the government. At this point, the applicant or her attorney can request that the government join in a motion to terminate the court proceeding allowing USCIS to reopen the Asylum application and schedule a new appointment. The clock will then restart on the date the applicant appears for the rescheduled interview.
My Asylum application was denied and referred to the Immigration Court. Will this stop my clock?
A referral to the Immigration Court will not stop the clock unless as previously stated you failed to appear for the interview or receive the decision.
How is the 180-day waiting period calculated for applications filed with the Immigration Court?
The clock starts when the Immigration Court receives the complete Asylum application at the Court’s window whether filed in person or by mail.
What will cause the 180-day Asylum EAD Clock to stop with the Immigration Court?
- Like applications filed with USCIS, any delays caused by the applying noncitizen. Examples of delays caused by an applicant that can stop the Clock include:
- The applicant asks for a continuance to seek an attorney.
- The applicant asks for time to prepare.
- The applicant declines an expedited hearing if when one is offered by the judge.
- The applicant requests that the case be administratively closed.
The clock resumes at the next hearing assuming that the applicant does not cause another delay.
If the applicant files a motion to change venue or for a continuance, the clock stops when the motion is granted and resumes on the next hearing date assuming the applicant does not cause another delay.
Asylum Applications treated as Expedited Cases.
In cases where an applicant filed the application with the Immigration Court, the Court seeks to adjudicate the case within 180 days subject to the Court’s availability. If the Court’s schedule permits, the Court will offer a final hearing within 180 days of filing. If the applicant declines to have the final hearing within the 180 days, this will also cause the clock to stop. If the Court cannot offer a final hearing date within the 180-day time frame, then the clock will continue to run.
Asylum Applications referred to the Immigration Court with 75 days or more at the time of referral
These cases will not be treated as expedited cases meaning that the Immigration Court will not offer a final hearing date within the 180-day time period and the clock will continue to run unless the applicant creates another delay. If the application was referred with less than 75 days at time of referral, then the clock will continue to run but the case will be treated as an expedited case where the clock will stop if the Judge is able to offer a final hearing date within the 180 date period and the client declines the date.
As you can see the simple issue of employment while your application is pending does not have a simple answer. As a result, if you are thinking of filing for Asylum Protection or in the middle of the Asylum process, you should consult with one of our experienced Immigration Attorneys to get the proper advice for your case and to help you navigate through the complicated Asylum process.
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