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Asylum Based Employment Authorization Litigation

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We had previously discussed the different rules pertaining to qualifying and applying for an employment authorization document, (EAD) when based on a pending Asylum application.

Later in 2020, the Department of Homeland Security, (DHS) issued final rules that created significant changes in the processing of Asylum based employment authorization applications, (EAD). The first rule that went into effect on August 21, 2020, eliminated the provision for first employment authorization applications based on a pending asylum application to be adjudicated within 30 days. The second rule that went into effect on August 25, 2020, created additional procedural requirements to meet to qualify for an Asylum based EAD.

What are the Broader EAD Rules?

  • New requirement to submit biometric information and the related biometric fee of $85.00 as part of filing the form I-765, application for EADs based on an Asylum application.
  • New requirement changing from 150 days to 365 days the waiting period for EAD eligibility from the date of filing the Asylum application.
  • New bar to EAD eligibility for Asylum applicants who filed an Asylum application on or after August 25, 2020, who did not file their Asylum within one year of entering the United States.
  • New discretionary review rule, providing the agency the discretion as to whether or not to grant an EAD application based on an Asylum application even if the applicant meets the requirements.
  • Removal of the rule deeming an Asylum application as complete if the immigration service, (USCIS) does not reject it within 30 days of receipt.
  • New requirement barring Asylum applicants from applying for an EAD, who cross the border on or after August 25, 2020, who did not present at a port of entry.
  • New requirement barring Asylum applicants from applying for an EAD, who have committed or been convicted of certain crimes.
  • Automatic termination of work permits on or after August 25, 2020, for Asylum applicants who have had their case denied by an immigration judge who does not seek appeal within 30 days before the Board of Immigration Appeals or after the Asylum applicant’s appeal is denied.
  • New requirement staring on August 25, 2020, where 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.” Such as missing a biometrics appointment.

Federal Lawsuits

In response to these restrictions and rule changes, immigrant advocate organizations, most notably CASA de Maryland and the Asylum Seeker Advocacy Project (ASAP) filed lawsuits challenging these new rules. As a result, Federal District Courts, including the Eastern District of Maryland in the case, CASA de Maryland v. Mayorkas blocked execution of certain les against Asylum applicants who are considered class members in these lawsuits.

You can review information about becoming a member of the ASAP class by visiting the website here.

You can review information about becoming a member of the CASA class by visiting the website here.

The Injunction from the Federal Court now allows members of the CASA or ASAP class to circumvent a portion of the new rules while applying a certain portion of the former rules. Members of the class now have the right to:

  • Apply for work authorization 150 days after filing an Asylum application instead of the new rule of 365 days.
  • Not have to pay the new $85 biometrics fee.
  • Have the first work authorization application processed within 30 days.
  • Be allowed to apply for work authorization even if the Asylum application was submitted more than one year after arriving in the United States.
  • Have an Asylum application deemed complete if it has been pending with USCIS more than 30 days which ensures that the applicant can request employment authorization within 150 days of submitting the Asylum application.
  • Not be subject to discretionary denial of the application.

Keep in mind that class members and non-class members are still subjection to the following new restrictions:

  • Barring of Applicants who were convicted at any time or any aggravated felony.
  • Barring of Applicants who were convicted of a particularly serious crime or crossed the border without inspection on or after August 25, 2020.
  • Barring of Asylum applicants with denied Asylum applications and either have not appealed or have had their appeal denied by the Board of Immigration Appeals.

Another problem created by these new rules is confusion as to when they may or may not apply. This discussion attempts to clarify this issue, but regardless confusion will likely persist especially since some of these rules are based on certain dates or pending status of the court proceedings. That’s why we are here to help. Our attorneys can help you navigate the complex procedures and requirements for applying for Asylum as well as helping you determine whether you are eligible for an employment authorization document.

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