USCIS Removes Most of the Trump Era EAD Eligibility Rules

On September 21, 2022, the United States Citizenship and Immigration Service, “USCIS’ announced that it was vacated the Trump era Employment Authorization rules implemented in 2020 restricting Employment Authorization Document, “EAD” eligibility based on an application for Asylum. The vacatur is a result of court ordered vacatur in the case of Asylumworks et al. v. Mayorkas et al.  We discussed the prior Trump Era rules here.

• Elimination of requirement of filing the EAD 365 days after filing the asylum application where the EAD application can now be filed 150 days after filing of the asylum application.
• Elimination of requirement to pay the $85 biometric services fee or attend a biometric services appointment associated with filing the EAD. Note that the applicant is still required to appear for biometrics for the underlying Asylum Application.
• Elimination of bar from receiving employment authorization based on an asylum application when the applicant entered or attempted to enter the United States between ports of entry or without being admitted and inspected by an immigration officer.
• Elimination of bar from receiving employment authorization even if the application was filed after 1 year of entering the United States.
• Elimination of most bars from receiving employment authorization based on past criminal offenses except the bar based on a conviction of an aggravated felony. We have discussed offenses considered aggravated felonies here.
• Elimination of the automatic termination of the EAD on the date the underlying asylum application is denied. Either the EAD will terminate 60 days after denial if the noncitizen is in lawful immigration status or has parole or will terminate on the expiration of the EAD after denial by an immigration judge even in cases where USCIS initially denied the application and referred the case to an immigration judge.
• Eliminated rule barring a renewal application in cases that are being appealed before the U.S. Court of Appeals.
• USCIS has reinstated the requirement for USCIS to process initial EAD requests based on pending asylum applications within 30 days.
• Elimination of USCIS discretion to deny individuals who are eligible for initial, or renewal EAD applications based on pending asylum applications. This removes an officer’s ability to deny an EAD application where an applicant meets all eligibility criteria.
• Elimination of rule allowing USCIS to reject asylum applications not properly filed more than 30 days after being received. If USCIS does not reject an improperly filed asylum application, the asylum application is to be considered complete.

This presents a significant victory for many asylum applications who were frustrated by the Trump Era rules if not outrightly disqualified from the EAD benefit.