15 Sep Dramatic Changes to Asylum Application Process and Work Authorizations
The U.S. Department of Homeland Security (DHS) has issued a final rule that severely limits the ability of many individuals seeking asylum to apply for work authorization in the United States. The new rule took effect on August 25, 2020. Generally, the new rule will apply to both initial and renewal applications for an Employment Authorization Document (“EAD”) based on a pending asylum application (under the “C(08)” category) and based on parole (under the “C(11)” category) that are postmarked on or after August 25, 2020.
Old System: The Asylum Clock
Under the current regulations governing asylum and employment authorization in the United States, an individual who applies for asylum with the United States Citizen and Immigration Services (USCIS) or with the immigration court is eligible to apply for an EAD under the “C(08)” category starting 150 days after filing the asylum application, and the asylum applicant may receive the EAD starting 180 days after filing the asylum application. The 180-day EAD waiting period, or the “180-day Asylum Clock,” has been in place for the past 25 years. Currently, the Asylum Clock starts running when the individual files an asylum application, and the Clock continues to run unless the individual causes their asylum case to be delayed.
New System: No Clock, Double the Waiting Period, No Employment Authorization
With the new EAD regulations, DHS is introducing dramatic changes to asylum applicants’ eligibility to seek an EAD under the C(08) category. These changes include:
- 365-day Waiting Period: The new rule entirely eliminates the Asylum Clock and doubles the mandatory waiting period for a C(08) EAD after applying for asylum to 365 days instead of 180 days. If the asylum application is denied before the end of the 365-day waiting period, the C(08) EAD application will be denied.
- No Employment Authorization if Fail to Apply for Asylum Within One-Year Filing Deadline: Under the U.S. asylum law, in order to be eligible for asylum, an individual must file their asylum application within one year after entering the United States, unless an exception applies. Under the new rule, an asylum applicant is not eligible for a C(08) EAD if they file the asylum application after the one-year deadline, unless and until an asylum officer or immigration judge determines that an exception applies and that the applicant filed for asylum within a reasonable period of time under the circumstances. This represents a major shift in policy because it means that the many asylum applicants who apply for asylum on or after August 25, 2020, and more than one year after they entered the U.S. will be unable to receive work authorization until and unless they are able to establish an exception to the one-year filing deadline at their asylum interview or with the immigration judge. Please note that this restriction applies only to asylum applications filed on or after August 25, 2020.
The one-year filing deadline bar for C(08) EADs does not apply to someone who was an “unaccompanied minor” (UAC) when they entered the U.S.