If you’re reading this blog, and presumably you are, you probably already know about the “Asylum Clock.” The basic story is this: When a person files for asylum (with the Asylum Office or the Immigration Court), the Clock starts to count time. Once the Clock reaches 180 days, the asylum applicant is eligible for an employment authorization document (“EAD”). The Clock “stops” if the asylum applicant causes a delay in her case. The problem is that the rules governing the Asylum Clock are vague, and ever changing. Today, I want to discuss a new change with the Clock, debunk a rumor that has been floating around, and briefly discuss the new EAD application form.
First, a few words about the Asylum Clock. The Clock originally went into effect in 1996. Before then, if a person filed for asylum, she could also apply for an EAD. The powers-that-be (i.e. Congress) felt that this system encouraged frivolous asylum applications–people knew that they could file for asylum, get a work permit, and remain in the U.S. for years while their cases were adjudicated, and so they had an incentive to file for asylum even if they had meritless cases.
To combat this problem (if indeed, it was a problem), Congress created a 180-day waiting period before asylum seekers would become eligible for the EAD (under the regulations, you can file for the EAD after 150 days, but you are not actually eligible to receive the EAD until 180 days have elapsed). The “Asylum Clock” counts this time. In order to avoid the problem of asylum seekers deliberately delaying their cases to obtain an EAD and draw out the process, the law states that any delay by the applicant causes the Clock to stop. It sounds simple, but in practice, it’s often been a mess.
EOIR–the Executive Office for Immigration Review–has a handy memo that lists the reasons why the Clock might stop in Immigration Court or at the Asylum Office. According to the memo, the Clock will stop in Immigration Court if (1) the applicant asks for the case to be continued so he or she can get an attorney; (2) the applicant, or his or her attorney, asks for additional time to prepare the case; or (3) the applicant, or his or her attorney, declines an expedited asylum hearing date. At the Asylum Office, the Clock stops if (1) the applicant requests to transfer a case to a new asylum office or interview location, including when the transfer is based on a new address; (2) the applicant requests to reschedule an interview for a later date; (3) the applicant fails to appear at an interview or fingerprint appointment; (4) the applicant fails to provide a competent interpreter at an interview; (5) the applicant is requested to provide additional evidence after an interview (though I have never seen this used as a basis to stop the Clock); or (6) the applicant fails to appear to receive and acknowledge an asylum decision in person (if required). Other–unspecified–delays can also cause the Clock to stop in the Asylum Office or in Court.
Also, the Clock sometimes stops for random and unpredictable reasons: In court, different Immigration Judges interpret the rules differently and inconsistently, and so in some cases, one IJ would stop the Clock (or refuse to start it) in a situation where another IJ would do the opposite. Also, the Clock sometimes stops due to administrative error. Correcting these problems or re-starting the Clock is a real hassle, and some people who are eligible for EADs do not receive them.
Over the last few years, we have seen some improvements in the operation of the Asylum Clock, and it has become less common for the Clock to stop. One particular improvement at the Asylum Office was that moving the case to a new jurisdiction would not cause the Clock to stop–that way, if a person moved within 180 days of filing for asylum, she could still receive her EAD. But that policy has now been reversed, at least according to the notes I received from a recent meeting at the Arlington Asylum Office–
Please note that for the purpose of the 180-day Asylum employment authorization document (EAD) clock, a request to transfer a case to a new asylum office or interview location (including when the transfer is based on a new address) is considered a delay requested or caused by the applicant. This transfer will cause the EAD clock to stop. The 180-day Asylum EAD clock is resumed once the new asylum office transfers in the applicant’s case.
Given the new last-in, first-out policy, perhaps the change makes sense from the Asylum Office’s point of view, but asylum seekers will now need to be more cautious about moving. The bottom line is this: If you move and your case is transferred to a different Asylum Office, the Clock will stop. For how long it will stop is unclear. But since the Clock is notorious for stopping easily and only re-starting with difficultly, it seems important for affirmative asylum seekers to avoid moving after they file for asylum.
Once you reach 180 days on the Clock, moving has no effect, but to be extra-safe, I am now advising my clients not to move until they actually receive the EAD card. Of course, if you move, and your case remains at the same Asylum Office, there should be no effect. You can check whether moving will cause your case to be transferred to a new office by visiting the Asylum Office Locator and entering your old and new zip codes.
Another development to discuss is the recent Attorney General memo that rescinds a number of prior memos. There have been rumors that the purpose of this memo is to prevent asylum seekers from obtaining an EAD while their cases are pending. The memo itself does not end EADs for asylum seekers, but whether this memo is a precursor to such a move, I do not know. The government seems to have the authority to end EADs for asylum seekers (the statute says, “An applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Attorney General”). But given that the new EAD application form allows for work permits for people with pending asylum cases, it seems unlikely that the government will end EADs for such people, at least in the near term.
Finally, there is a new EAD application, form I-765. I will write more on this another time, but one major change is that asylum applicants must indicate whether they have been arrested for a crime. Many asylum seekers have been arrested for political reasons, as opposed to crimes, so what should they do? The I-765 instructions state that the applicant must list all arrests and convictions, which seems broader than the question actually listed on the form itself (which refers only to arrests for crimes). At this stage, I think it is safer to be over-inclusive. For our clients, if they have been arrested for any reason, even for a political reason, we will reveal that on the form and provide information about it. If there are no records of the arrest, which there often are not, we will include an affidavit from the client about what happened. Whether this will satisfy USCIS, I do not know. But until we learn more, this is the approach we will take.
So I suppose the good news is that asylum seekers are still eligible to obtain work authorization. They do need to be careful about moving before they receive the EAD card, though. When we know more about the new EAD form, or if there are changes to the process, I will try to post an update here.
[…] Asylum Clock: Ugh. What can be said about the Clock that has not already been said, including by me. The system is arbitrary and the rules are applied inconsistently. It is also very difficult and […]
[…] “shall not be counted” towards the 180 days. This is the origin of the dreaded Asylum Clock, which tracks how much time has passed since an applicant filed for asylum (and which has a […]
[…] weeks to return the errant forms. So applicants, who thought that their cases were pending, their Asylum Clocks had started, and their status in the U.S. was safe, are learning after a month and a half, that […]
Dear Jason,
I want to renew my EAD but my case is pending at immigration court. How many days before expiration date can I apply? Is there a change in application fee? and What kind of supportive documents are needed to show my case is pending at immigration court? Is the notice to appear from uscis enough? I haven’t received any paper from the court when I was told about my individual hearing date. The judge just stated it by word. Thank you for your help. Bless you!
You can renew up to 180 days before the old card expires. Check the I-765 instructions for the fee, but I believe as of this week, you now need to pay the fee and a biometric fee. In terms of documents, you have to check the instructions. To prove the case is pending, we usually include the NTA and the most recent court order listing your next hearing date. It is strange that the judge did not give you any paper, as they should do that (if you have a lawyer, maybe the lawyer has it). You may want to contact the court to try to get a copy of the order – you can find their contact info if you follow the link at right called Immigration Court. You can also get some of that info online, at the DOJ EOIR portal, but I do not know if that will work well for purposes of the EAD. Take care, Jason
Jason,
I sent my EAD application three weeks before 150days a receipt letter was sent back to me ,but two weeks later my application was denied.
I started counting the 150 days from the date I file in not knowing that USCIS clock count differently
What should I do next, as it is over 150 days now.
Thank you
You can check your receipt number at http://www.uscis.gov and it should tell you how many days have elapsed and whether the clock is still moving. If the clock is moving, and more than 150 days have passed, you can file the I-765 again. I think the form asks if you ever filed before – you will need to explain that you filed too early and it was rejected. Take care, Jason
Jason,
Really appreciate your prompt response, i just got a mail that say I should file for a motion to reopen and reconsider filling form I-290B within 30days.
Thank you
I would talk to a lawyer – usually the I-290B is a waste of money and does not work. In many cases, it makes more sense to just refile the application rather than mess with the 290B. Take care, Jason
Jason
Do I need to reapply immediately after the 150days or wait till the expiration of the time in there mail.
Thank you
If you want to re-apply for an EAD using form I-765, you can do that as long as the clock has passed 150 days and is still running. Take care, Jason
Thank you! Respect for you Sir. You are helping the helpless from the goodness of your heart. God bless you more and please continue what you do.
Hi,
My clock has stopped counting, how can restart it?
It depends why it stopped and where the case is located (court or asylum office). The clock is supposed to stop if you cause a delay. If the delay ends, the clock should re-start. If you think that has happened, you can call the court administrator (follow the link under Resources called Immigration Court) and ask about re-starting the clock. At the Asylum Office, follow the link called Asylum Office Locator. There is also a pending legal case about the clock that is going to change the rules soon, and that may help you (and many others), but I do not know when that change will go into effect. You may want to talk to a lawyer about the specifics of your situation, as another solution may be possible, depending on what happened. Take care, Jason
Hi Jason
I applied for EAD c08 Nov 1st of 2018. Got an approval Nov 30th but so far no card yet. Should I be worried? Everyone says they got the card 2-3 weeks after the approval notice. That is anyway could I expedite the card production?
Thank you so much
I do not think you can expedite at this point. The delay may be due to the holidays, but it is longer than I would expect. Maybe try calling USCIS to ask. You can find the phone number at http://www.uscis.gov. Take care, Jason
Still no EAD card. Do you think the delay could be because I was referred to IJ?
Thank you again and have a great new years
🙂
I do not think that would cause a delay. More likely, the delay is due to the holidays and also the fact they are normally kind of slow. Take care, Jason
Hi Jason Im filling out my I-765 and question 25 is asking my current immigration status or Category, I enter to the country on a B-2 Visitor visa now I’m in Asylum process what should I write Category C8 or B-2? also I was referred to IJ but my Master hiring is in March do I need to include a copy of the letter I got that referred me to IJ? thank young hope you can answer.
Have a good day!
Sorry, I cannot answer specific questions about forms. For our clients, we generally put “asylum pending” if they have no other immigration status. As for documents, you need to check the I-765 instructions, but we do include evidence of the court case and the next hearing date, if we have it. Take care, Jason
Helo sir if the asylum case approved in immigration court. And it is possible other people challenge the court order?
If you win asylum in court, DHS has 30 days to appeal. If they do not appeal, the order is final and you have asylum. In the future, if the government has info that the asylum was fraudulent, or they think it is safe to return to your country, they can reopen the asylum case (if you get a green card and your country becomes safe, your asylum case would not be reopened – this is one reason it is a good idea to apply for the GC one year after receiving asylum). Take care, Jason
Dear Jason,
Thank you so much for everything you are doing for this blog.
I had my interview at the Arlington office in early July and still waiting the decision by mail. I received the approval for my EAD and hoping to obtain the card by end of the year. I have been looking for jobs at Boston,MA area because that is where I’d like to work. If I move to Boston after I receive my EAD, will it affect or delay the case in anyway because my new address is in a different state than where my case is filed?
Please let me know how this will work out under the current policy. Thank you so much for your time in advance.
Sincerely,
Al
Unless they need to interview you again, it should have no effect. If they need to interview you again, they will do that in the Boston office. Second interviews are pretty rare – I would say less than 10% of cases have a second interview, but that is just my best guess. Take care, Jason
Dear Jason,
Thank you so much for your response and I appreciate the clarification.
I applied for EAD last month under the C8 category because my case is still pending with the asylum office. However, when I received the Approval Notice for EAD,the class type says A05, which I believe is for an asylee with granted asylum. What does this mean?
Thank you for your help.
AL
That is the category for asylum granted, so hopefully that is a good sign. You might contact the asylum office to ask if there is an update for you case. You can find their contact info if you follow the link at right called Asylum Office Locator (under Asylum Seeker Resources). Take care, Jason
Dear Jason,
I hope this message has reached you well. I received my EAD card today and the category still does say A05 but with only one year of validity instead of two. (Applied for EAD under C8; still no decision on the case now)
I was at the Arlington office which has jurisdiction over my case on Wednesday to inquire if there is any updates. An officer at the counter told me that a decision has not yet been served and that’s all I heard.
I called the Customer Service Number to inquire about this situation and they told me that A05 was what appeared on the system for my case so I am not sure what is happening here.
Would it be possible that my case was approved but the offices just haven’t linked up with each other well? Or an administrative error?
Thank you!
AL
Other people have posted here with the exact same situation. I have not personally seen this (but I also don’t receive the EADs – the clients do), and I really do not know the reason. I am not sure what else you can do besides wait for the decision. Hopefully, the “a5” means good news is on the way. Take care, Jason
Dear Jason,
Thank you for the support and I hope good news is on the way as well.
One quick question regarding the validity of the EAD I received. I understand that USCIS increased the validity of work permits for applicants with pending asylum to two years since October 2016. Mine is only valid for one year. I am close to sealing a promising job offer and the employer might back down if the work permit is only valid for one year.
My case has been pending since May 2018 and this is also my Initial EAD. I really don’t understand what is happening. Anything helps.
Thank you for your time!
AL
If you got a recent EAD based on asylum pending, it should be valid for 2 years, unless this is some very new change. Even if the EAD is only valid for one year, you are eligible to renew, and so maybe you can tell that to the employer. Take care, Jason
Hi Jason, My Nephew applied for Asylum in June of 2018 he had his interview in July 30, 2018 he has not received an answer, but we wanted to know how do we applied for the work permit. I was on the USCiS website and it said we have to pay 400$ can you please guide us on how to do it. Thank you 🙂
There is no charge for the first work permit if it is based on asylum pending. Otherwise, just follow the instructions for form I-765, available at http://www.uscis.gov. Do not file the application until the full 150 days have passed, or USCIS might reject it. Take care, Jason
Hi Jason, please how long does it take to get a final decision on the rebuttal? And just in case of whatever reason a final denial was given, what happens to the EAD clock? Does the clock start over again when you reapply for asylum or does it continue from where it last stopped from the previous application? And what happens next?
Ps, I’m still in valid b2 status.
Thank you for your kind contribution.
If you are referring to the time to get a response after you rebut the NOID, it is unpredictable. We have seen them take days, but others take months. We have one that is pending for 6+ months now, where the asylum office had indicate that they would prioritize the case. If you are finally denied asylum, you would have to re-apply if you wanted to try again, and the clock would start from zero on the new application. The procedure to re-apply is different (I talk about that in a post dated February 21, 2018). Take care, Jason
Hi Jason, please check your email. I have a few questions which need urgent attention to. Thank you
I typically cannot answer questions by email. It is better to post the questions here. Take care, Jason
hi jason, as usual thx for everything you do, I am here at Orlando since nov 2015 and Miami office has 75000 pending cases, one of my friends came one year after me and stayed at Chicago and she finally got her interview last week, my question here is that I work at Orlando and my kids schools here can I change my address to Chicago immigration office on papers to my friend’s address and only go when the appointment come or this would be considered illegal ?
You are required to go to the asylum office where you live. If you tried changing your address on paper, it would raise many questions at the interview (“Why do you claim to live in Chicago is your jobs and children’s school is in Orlando? If you are lying about your address, are you also lying about your case?”). So I think unless you actually move, you are stuck with the Miami office. Take care, Jason
Hi Jason,
With regards to the 180 day clock. How do immigrants make a living legally while they wait? That the government made provisions for such?
Surely people people run out of money while they wait and they need to pay rent , but food and other necessities.
Thanks
Good question. Many people work without permission because they have no choice. It is illegal, but it does not block them from receiving asylum (though it can block them from some other immigration applications). Take care, Jason
Hi Jason, I have a question regarding filing an asylum after 10+ years. Your article mentioned about the pilot program of giving the applicant choices between the interview or immigration court. If the applicant has a strong case of change of country condition but filed after 10+ years, is there any real chances for the applicant to be granted asylum at the interview? Have you encountered any previous cases that were filed after 10+ years delay approved at the asylum interview? Thank you so much for your informative site on this winding road of asylum.
We just did a case where the applicant had been in the US more than 10 years before seeking asylum (she came out as gay in the interim). We overcame the one year bar (to my pleasant surprise) and she received a recommended approval. So I know it is possible. You need evidence about the change, and why you now face danger, but certainly anyone who fears return, even if they have a weak basis to overcome the one-year bar, is better off taking the interview and trying. Waiving the interview is only a good idea (in my opinion) if you do not care about the asylum case and only want to get to court to pursue other relief like Cancellation of Removal. Take care, Jason
Hi jason, please my husband is the USA on a business visa, can i add him to my pending asylum case, i filled jn 2016, i haven’t had any interview.
I am not Jason but at my knowledge, since your husband is physically present into the USA, yes you can add him. In my case, I added 3 dependents to my case as soon as they got to the USA and they were illegible for employment authorization. Once, you add him if you have already spent 150 days , he can also apply for an employment document
Please can you tell me what pages of the i589 I need to fill to add my spouse ss a dependent. I know he doesn’t need the full form. Thanks
Hi Jason, thanks for been so helpful… please i do have a question, i applied for asylum in december 2016, i havent gotten no interview. My husband is in the USA now on a business visa , is it possible to add him to my pending asylum and how? Please anticipating on your reply. Thanks alot
He can be added, and once he is added, he can get a work permit. Adding a person to a case can be bureaucratically challenging, and so using a lawyer might help. Or you can contact the asylum office and they should tell you the procedure (but their procedure does not always work, so you need to be persistent). You can find their contact info if you follow the link at right called Asylum Office Locator (under Asylum Seeker Resources). Take care, Jason
Mr. Dzubow,
Thank you for being so informative. Has anything change for those who are renewing their EADs? Do you think there’s any immediate risk of people not being able to renew their EADs?
Thank you and best wishes
There is a new I-765 form, which asks whether you have ever been arrested. In typical USCIS fashion, there is little guidance about what constitutes an “arrest” and so this may end up being a problem for asylum seekers, some of whom have political arrests (which are often not legal arrests). Whether this will cause denials, I do not know, but it may cause delays. We will see, as this form is very new. Take care, Jason
Hi Jason, thanks for doing this. This is the only place where I have found reliable information. I have a couple of questions.
1. Do you have any update on the Arlington asylum office timeline? Maybe any recent case? I received my aknowledgment of receipt on 07/28/2018 but so far I havent received anything related with the biometrics.
I am an asylum seeker from Venezuela and Ive heard many mixed opinions about this.
Thanks for your time
It takes between 1 and 3 months from the time of filing to the time of scheduling an interview. If you don’t get an appointment in that time, you fall into the backlog. It is still unclear whether they will do backlog cases from oldest to newest or from newest to oldest, but I think they are still receiving more applications than they can interview, meaning that they are currently doing no backlog cases. Take care, Jason