A new rule in the federal register has temporarily increased the automatic extension period for Employment Authorization Documents (“EADs”) for asylum seekers and others from 180 days to 540 days. The 540-day extension applies to anyone with a pending EAD renewal, even those whose EAD and 180-day extension have already expired. This means that all asylum seekers with timely-filed renewals are able to work lawfully for 540 days beyond the expiration date on their current EAD card.
Starting on May 4, 2022, EAD receipts for certain categories–including c-8, asylum pending–will list the 540-day extension on the receipt itself. USCIS has also updated its website to reflect that EAD receipts listing the 180-day extension have been extended by an additional 360 days, to 540 days total. USCIS will not be sending out new receipts, and so if you need proof of the automatic extension for your employer or the DMV, you can show them this web page. In order to qualify for the automatic extension, you must file to renew your current EAD before it expires. (more…)
On December 28, 2021, USCIS announced that. “if you are a healthcare worker who has a pending Employment Authorization Document (EAD) renewal application [Form I-765] and your EAD expires in 30 days or less or has already expired, you can request expedited processing of your EAD application.” This is a positive development, since EAD renewals have lately been very slow.
One group that has been impacted by the delayed renewals is asylum seekers, and we are seeing people wait up to ten months for their new EAD cards (asylees–people whose asylum cases have been granted–are also experiencing long delays to renew their EADs, but such people are eligible to work even without an EAD). Here, we’ll talk about the EAD renewal process and the new rules for healthcare workers (and while it probably goes without saying, yes, I will complain about the new expedite procedure). (more…)
These days, it takes approximately forever to complete an asylum case. Because of the long wait, the law allows asylum seekers to apply for an Employment Authorization Document (“EAD”), which lets them work lawfully while the case is pending. In one of its many regulatory attacks on the asylum system, the Trump Administration recently implemented new rules making it more difficult to get an EAD. But those rules have been challenged in court. Let’s take a look at the law, the old rules, the new rules, where things stand now, and–most importantly–how asylum seekers might still qualify for an EAD.
As usual, it’s best to start with the law. In this case,INA § 208(d)(2), which provides–
An applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Attorney General. An applicant who is not otherwise eligible for employment authorization shall not be granted such authorization prior to 180 days after the date of filing of the application for asylum.
What this gobbledygook means is that asylum applicants are not entitled to an EAD, but government agencies can make rules allowing asylum seekers to get EADs. However, the soonest an asylum seeker can obtain an EAD is 180 days after he files for asylum.
Introducing the new EAD application process.
Based on this law, a government agency (the U.S. Department of Justice) created regulations that allowed asylum seekers to apply for an EAD 150 days after their asylum application was filed. Why 150 and not 180? Because the DOJ figured (optimistically) that it would take at least 30 days to process the EAD application, and so if the applicant files after 150 days, the EAD would not be issued until at least 180 days had passed. The regulations also provide that any delay caused by the applicant “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 tendency to behave in arbitrary ways, much to the chagrin of asylum seekers and their attorneys). So if an asylum applicant causes a delay–by rescheduling her interview, for example–the Clock would stop until the period of delay ends (in this example, the period of delay would end when the applicant attends her interview). These rules have remained largely unchanged for the past 25 years, until August 25, 2020, when new regulations went into effect.
The new rules make a number of major changes to the way EADs are processed for people seeking asylum. The most important of these rules are–
The waiting period to apply for an initial EAD based on asylum pending is extended from 150 days to 365 days. In other words, instead of waiting five months to apply for an EAD, asylum seekers now have to wait one year before applying for an EAD. This rule applies to asylum seekers who file for an initial (first time) EAD on or after August 25, 2020 (regardless of when they filed for asylum).
EADs will be denied for anyone who filed for asylum more than one year after arriving in the United States, unless an Immigration Judge or Asylum Officer determines that the applicant meets an exception to the one-year asylum-filing deadline. Such a determination cannot be made until the applicant attends an asylum interview or an Individual Hearing in Immigration Court, and so this effectively means that people who file for asylum after one year in the U.S. will not get an EAD while their case is pending. This rule applies to people who file for asylum on or after August 25, 2020.
Asylum applicants who entered the country “unlawfully” are ineligible for an EAD.
USCIS’s authority to deny EADs as a matter of discretion is expanded.
Asylum seekers have not capitulated to these changes, and there is currently at least one lawsuit challenging their validity. As of this writing, the judge in that case issued a preliminary injunction blocking the most onerous of the new rules, but only for asylum applicants who are members of two organizations involved in the lawsuit: Casa de Maryland and the Asylum Seeker Advocacy Project. This is a preliminary ruling based on the judge’s initial evaluation that many of the new rules are illegal; it is not a final decision one way or the other.
The bad news here is that the judge’s preliminary injunction blocking implementation of the new rules applies only to members of Casa and ASAP. The good news is that it does not apply only to current members of these organizations. This means that for people who are ineligible for an EAD under the new rules, you can join one of the organizations and potentially become eligible for an EAD based on the preliminary injunction. Thus, asylum seekers who are (or who become) members of these organizations are eligible to apply for an EAD after 150 days (as opposed to 365 days). Also, asylum seeker/members who filed for asylum after August 25, 2020, and who were in the U.S. for more than one year before filing for asylum, are still eligible for an EAD. You can learn more about the effect of the judge’s injunction here. You can join ASAP here, and Casa de Maryland here (you only have to be a member of one of these organization to qualify for protection under the preliminary injunction).
The other piece of good news from the injunction is that it may signal the judge’s intent to issue a favorable decision on the merits of the case, and to permanently block the new rules for all asylum seekers. When the judge will decide the merits of the case, we do not yet know.
Another unknown is the exact procedure by which members of Casa and ASAP can obtain an EAD. I reached out to an organization involved in the lawsuit, and it seems that the logistics of the process are still being worked out. In the mean time, if you think you would benefit from becoming a member of one of the organizations, you can join, so at least that piece will be in place when it comes time to apply for an EAD (and also, these are great organizations, so there are many good reasons to join).
One final note, for those seeking initial EADs or renewing expiring EADs, keep in mind that fees are going up on October 2, 2020, and that USCIS keeps revising the I-765 form. Make sure to check the website and file the correct edition of the form, and the correct fee (or fee waiver).
The Trump Administration is working overtime to make it difficult for asylum seekers to obtain status in the U.S. But thanks to asylum-rights advocates, it is often still possible to win asylum and to obtain an EAD while your case is pending.
What do you think would happen if a client came to my office (virtually), hired me, paid me money to file a case, and then I did not file the case and refused to return the client’s money? Here’s what I think would happen–the client would sue me to get the money back, and I might be dis-barred. Also, I could go to jail.
So what happens when a person hires USCIS to adjudicate an application for a work permit or a Green Card, pays money to the agency, USCIS determines that the person qualifies for the benefit, but then refuses to issue the document? Apparently, nothing happens. The agency keeps the money and the applicant is SOL. That is exactly what we are seeing these days for people approved for an Employment Authorization Document (“EAD”) or a Green Card.
According to a recent article in the Washington Post, “In mid-June, U.S. Citizenship and Immigration Services’ contract ended with the company that had been printing [Green Cards and EADs].” “Production was slated to be insourced, but the agency’s financial situation… prompted a hiring freeze that required it to ratchet down printing.” As of early July, about “50,000 green cards and 75,000 other employment authorization documents promised to immigrants haven’t been printed.” These are documents that the applicants paid for and qualified for, and which they need to live and work in the United States.
You may be be surprised to learn that the Trump Administration won’t always give you what you pay for.
The Administration is blaming the problem on the pandemic, which it says has impacted USCIS’s budget. But that is not the whole story. Like many agencies under President Trump, mismanagement and hostility towards the agency’s mission have resulted in budget woes that long precede the coronavirus. According to an article by the Migration Policy Institute, USCIS essentially made a profit from fee receipts every year between FY2008 and FY2018 (data was not available for prior years). But starting in FY2019 (which began on October 1, 2018–well before the pandemic), the agency started running a deficit. The basic reasons are “falling petition rates… and increased spending on vetting and enforcement.” As MPI notes–
Alongside declines in petitions, USCIS has increased spending on detecting immigration-benefit fraud and on vetting applications. Anti-fraud costs more than doubled from FY2016 to FY2020, rising from $177 million to $379 million. Vetting nearly tripled during that period, from $53 million to $149 million. In addition, enhanced vetting appears to be decreasing productivity. USCIS adjudicated 63 percent of its pending and incoming caseload in FY2016. The adjudication rate dropped to 56 percent in FY2019. Over that same period, despite falling application rates, the backlog of pending petitions grew by 1.4 million, to 5.7 million. As a result, processing times for most types of petitions have increased, with some more than doubling.
According to the Washington Post, it’s not likely that USCIS’s budget will recover any time soon–
Presidential executive orders have almost entirely ended issuance of green cards and work-based visas for people applying from outside the country; red tape and bureaucracy have slowed the process for those applying from within U.S. borders. For a while, the agency refused to forward files from one office to another The centers that collect necessary biometric data remain shuttered. These pipeline delays are likely to dramatically reduce the number of green cards ultimately approved and issued this year.
Many employees at USCIS have already received furlough notices, and unless Congress steps in with a $1.2 billion fix, approximately two-thirds of the agency’s employees will be out of work by early next month. And as we’ve seen, the agency’s budget shortfall is already having an effect–more than 125,000 people have not received Green Cards or EADs, even though they paid for, and qualified for those documents (a few documents are still being produced–one of our clients received an EAD last week).
If you are waiting for a Green Card or an EAD, what can you do?
First, for anyone with a delayed card (where the card has already been approved), apparently the USCIS Ombudsman is trying to assist. If you are waiting for an approved Green Card or EAD, the first thing to do is place an online request for case assistance with the Ombudsman. You can do that here. The Ombudsman is “sending weekly spreadsheets to USCIS to verify card requests are in line to be processed.”
For people who have been granted asylum, you are eligible to work even without an EAD (using your asylum approval document or I-94, your Social Security card, and a photo ID).
If you are waiting to receive an approved Green Card, you might try calling USCIS at 800-375-5283 to request an appointment at the local field office. Field offices can place an “I-551” stamp (also called an “ADIT” stamp) in your passport, and this indicates that you are a lawful permanent resident (a Green Card holder). Due to the pandemic, USCIS offices are closed for most in-person appointments, but if you have an “urgent need” for the I-551 stamp, you may be able to obtain an appointment. An example of an urgent need might be that you will lose your job unless you have proof of status. Maybe get a letter from your employer explaining the need, so you will have that when you try to make an appointment, and when you go to the USCIS field office.
If you have a pending asylum case and are waiting to receive an approved EAD, you might also try calling USCIS. You can ask the agency to expedite the card. However, it seems unlikely that they can do so–one USCIS employee states, “Our volume of inquiries [has] spiked concerning cases being approved, but the cards [are] not being produced… A lot [of the inquiries] are expedite requests, and we can’t do anything about it; it’s costing people jobs and undue stress.” Nevertheless, since some EADs are still being issued, perhaps a call is worth a try.
Finally, you might contact your representatives in Congress (in the House and Senate). Ask them to fund USCIS, and remind them that “Congress… must also exercise its constitutional oversight authority to create and boost meaningful accountability, transparency, and productivity within USCIS.” If Congress does not get involved, USCIS will largely shut down in a few weeks. But USCIS does not deserve a blank check. Congress should ensure that the agency uses the money to fulfill its core mission, and that it gives people what they paid for.
Let’s say I give you a million dollars (which I can easily do, given my lucrative earnings as an asylum lawyer). Let’s also say I put that money on the moon. Even though its yours, you can’t get it, and so it won’t do you any good. That’s basically what the Trump Administration is trying to do with asylum.
Under U.S. law, non-citizens in our country have a right to seek asylum. But that right is meaningless unless applicants have the means to live here during the lengthy asylum process. On August 25, 2020, the Trump Administration plans to implement a new regulation, which denies Employment Authorization Documents (“EADs”) to some asylum applicants and delays the issuance of EADs to everyone else. The pretextual (lawyer-speak for bullshit) reason for the new rule is to prevent fraud. The real reason is to deter people from seeking asylum in the United States. Here, we’ll discuss the major provisions in this new regulation.
The first major change is the waiting period for an EAD. Until now, the regulations allowed asylum seekers to file their EAD application (form I-765) 150 days after their asylum application (form I-589) was received. Processing the I-765 usually took a few months, and so most asylum seekers would have their EAD card in hand within seven or eight months of filing for asylum. Under the new rule, asylum applicants must wait 365 days before filing for their EAD, and then wait a few more months for processing. This means that most applicants probably won’t have their EAD until at least 14 months after submitting the I-589. This new rule seems to apply to everyone who files for an EAD on or after August 25, 2020, even people who filed for asylum before that date. So if you are eligible for the initial EAD prior to August 25, you should file before that date. Otherwise, you will face an additional six months (or more) of delay.
No EAD? No problem. You can live off your trust account until you receive asylum.
The second major change is that people who file for asylum on or after August 25, 2020, and whose asylum application was not filed within one year of arriving in the United States, will be ineligible for an EAD “unless and until the asylum officer or immigration judge determines that the applicant meets an exception for late filing” or unless the applicant is an unaccompanied child. Sine the one-year bar will usually not be adjudicated until the asylum case is adjudicated, this new rule effectively means that people who do not file for asylum within one year of arriving in the country will not get an EAD. Again, this provision applies only to people who file for asylum on or after August 25, 2020. Also, even if you clearly meet an exception to the one-year rule, you would not be eligible for an EAD if you were in the U.S. for more than one year before filing for asylum (examples of people who are ineligible for an EAD include those who have maintained lawful status during their entire stay in the U.S. before filing, and people who decide to seek asylum after circumstances in the home country changed, causing them to fear return).
Third, applicants who “entered or attempted to enter the United States at a place and time other than lawfully through a U.S. port of entry on or after August 25, 2020” are not eligible for an EAD. There are rare exceptions enumerated in the rule, but for the most part, people who enter the U.S. unlawfully and file for asylum will be barred from obtaining an EAD.
Fourth, it seems that people who move before they get an EAD are considered to have “delayed” their case if the move transfers their case to a different Asylum Office. They thus become ineligible for an EAD (“Delay” includes “A request to transfer a case to a new asylum office or interview location, including when the transfer is based on a new address”). For this reason, you should try not to move out of your Asylum Office’s jurisdiction from the time of filing until you get the EAD (you can see your office’s jurisdiction here).
Also, previously, asylum seekers who were paroled into the United States after “passing” a credible fear interview were eligible for an EAD based on category c-11. The new rule eliminates this basis of EAD eligibility, though such parolees could still apply for asylum and then file for an EAD after the 365-day waiting period.
Other provisions of the new rule basically codify existing practice. For instance, people who cause delay in their asylum cases and people who have criminal issues will likely be denied an EAD.
The new EAD rules are particularly damaging when considered along side another proposed rule, which would deny asylum to people who work unlawfully and fail to pay taxes. The combined effect of these new regulations will be that asylum seekers are either forced to work illegally, thus jeopardizing their asylum claims, or they are forced to find some way of surviving in the U.S. for 1+ years without the ability to earn money.
On the positive side (and these days, we sorely need positive news), people who have EADs can continue to renew them in two-year increments, even if their asylum case is referred to Immigration Court or if they lose their case in court and appeal to the Board of Immigration Appeals.
Given these changes, if you are planning to file for asylum and you entered unlawfully or have a one-year bar issue, you should file before August 25, 2020, when these rules are scheduled to go into effect. Also, if you are planning to seek asylum, you should file your application within one year of arriving in the United States, even if you would qualify for an exception to the one-year bar (again, to be clear, you can still overcome the one-year bar and receive asylum, but you will not receive an EAD while you are waiting for a decision in your case).
One remaining question is whether these new regulations might be blocked by a federal court. I suspect that there will be a court challenge to the rules. If such a challenge succeeds, my guess is that it will succeed on procedural grounds–in other words, that the Trump Administration failed to adequately justify the new rule (this is the basic reason that the Administration’s efforts to end DACA failed). Asylum seekers have no right to an EAD. See INA § 208(d)(2). However, given that it is impossible to obtain asylum unless you have the ability to survive in this country during the pendency of your case, there may be a basis to challenge this new rule. Let’s hope so.
The law governing asylum states that, “An applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Attorney General.” Up until now, the regulations implementing this law allowed most asylum applicants to file for their Employment Authorization Document (“EAD”) 150 days after their asylum application was received by the U.S. government. Now, DHS has proposed regulations to delay EADs for all new applicants and to block EADs for some people.
Probably the most significant proposed change would be to increase the wait time before an asylum applicant can file for an EAD–from 150 days after the asylum form is filed to 365 days (and then the applicant would have to wait a few more months while USCIS processes the EAD). The rationale proffered by the government for delaying the EAD is to deter aliens from filing “frivolous, fraudulent, or otherwise non-meritorious asylum applications to obtain employment authorization.” DHS also wants to reduce incentives for aliens to enter the country illegally and to deliberately delay their cases in order to gain more time in the U.S. As with many recent changes to asylum procedures, there is little evidence that asylum seekers are coming here for work permits, or that most do not have a real fear of harm in their home countries. Also, there is already a significant waiting period to obtain an EAD, and of course further delaying the EAD will impact meritorious and non-meritorious applicants alike.
According to DHS, the length of this new waiting period is not arbitrary, rather–
The 365-day period was based on the average of the current processing times for asylum applications which can range anywhere from six months to 2 years, before there is an initial decision…
DHS envisions asylum seekers enjoying a year of leisure before their EAD arrives.
Huh? So asylum applicants are being punished because the U.S. government–largely through mismanagement–has a slow asylum system? If the average wait time increases to 10 years, must asylum applicants wait a decade before they can file for their EADs. Maybe a better method to calculate the wait time is to figure out how long asylum applicants can survive without jobs. Will applicants starve to death in three weeks? Six months? A year? I suppose from DHS’s perspective, if applicants are dropping dead, that will at least reduce the backlog.
Another significant change in the proposed rule is to deny an EAD to any applicant who files for asylum more than one year after arriving in the U.S. Unlike the 365-day rule, this proposal applies to all asylum applicants, not just to people who file after the rule goes into effect. And so if you filed for asylum after one year in the U.S., and you currently have an EAD, USCIS might refuse to renew it when the time comes. Such unlucky soles would only become eligible for an EAD if an Asylum Officer or an Immigration Judge “determines that an exception to the statutory requirement to file for asylum within one year applies.” Of course, by the time that happens, the case will already be decided, and so the large majority of late filers will not get an EAD until–and unless–they win asylum.
A third important proposed change applies to people who entered or attempted to enter the United States unlawfully. Under the new regulation, such people would not be entitled to an EAD at all. This provision seems to apply prospectively, meaning that if you entered the country illegally and you already have an EAD, you should be able to renew it. Asylum seekers who arrived unlawfully (or who attempted to enter unlawfully) and who file after the rule goes into effect will not be eligible for an EAD.
Finally, asylum seekers with a criminal conviction that is an aggravated felony under immigration law, a felony under state law, a serious non-political crime overseas, or related to domestic violence, child abuse or neglect, or driving under the influence of alcohol or drugs, will be barred from obtaining an EAD. This rule applies even to people who already have an EAD, and so some asylum seekers with criminal convictions may be unable to renew their work permits. More disturbing to those who care about such things as due process of law, asylum applicants who have “unresolved domestic charges or arrests” for crimes involving domestic violence, child abuse or neglect, illegal drugs, and DUI can be refused an EAD unless USCIS determines that the EAD applicant is entitled to a favorable exercise of discretion. So much for innocent until proven guilty.
Another change in the rule, which will only affect a limited number of people, is that DHS proposes to eliminate recommended approvals in asylum cases. Applicants receive a recommended approval where they are deemed to qualify for asylum, but background checks are not yet complete. Once a person received a recommended approval, she becomes immediately eligible for an EAD, and so by eliminating recommended approvals, some applicants will have to wait longer for their EADs.
One significant change that is a bit buried in the new rule is that affirmative asylum applicants will now be required to submit all their evidence 14 days before their interview. The problem here is that over 330,000 people are waiting for interviews, and many of those people will have to supplement and update their applications before the interview. The Asylum Office usually only gives two or three weeks notice of an interview, and so if evidence is required 14 days early, there will be little or no time to submit that evidence after the interview is scheduled. This will force applicants to reschedule their interviews and will cause further chaos at the Asylum Offices. Also, this new rules seems utterly pointless, since most Asylum Officers do not have time to review documents until the day of the interview, or maybe a day or two before, at best. So like other parts of this new rule, the 14-day provision seems designed for one purpose only–to make it more difficult for asylum seekers to present their cases.
For the budget conscious, an interesting element of the proposed rule is the summary of its costs. According to DHS, the estimated maximum cost of the new rule to our nation’s economy is $4.4 billion annually, and a loss of tax revenue to the federal government of up to $683 million per year. The regulation notes that if other workers can be found to fill the jobs currently held by asylum seekers, the loss would be less–as low as zero, if all lost jobs are filled. The idea that all the jobs held by asylum seekers would be filled by American workers seems dubious, especially given that our economy is currently close to full employment, and so this new regulation will likely have a significant negative impact on our nation’s economy. This cost estimate only considers affirmative asylum applicants; not defensive applicants, and so the cost will likely be more than the estimate predicts.
There is also another cost, which DHS does not seem to consider here. If asylum seekers are not permitted to work, their overall economic situation will be worse (duh!), and so if they are ultimately granted asylum, they will be much further behind economically than if they had been able to work while they were waiting for their cases to be processed. I imagine that this economic handicap will remain long after an applicant’s case is granted. Also, since an EAD allows asylum applicants to study at university, delaying or blocking the applicant’s EAD will put them further behind in terms of their education, and cause universities to lose tuition fees.
So to sum up, what we have here are new regulations that will cost our government money, and which will harm many asylum seekers and reduce their ability to contribute to our country. Rather than assist asylum seekers who have come to us for help, the Trump Administration is so intent on deterring them, that it is willing to harm all of us in the process.
If you’ve filed an asylum application recently, you may have noticed that receipts are taking longer, and many applications are being rejected for seemingly minor omissions. What’s going on?
Starting about a month ago, our office has had a number of new asylum applications returned to us after a longer-than-expected delay. The reason is because we left certain boxes on the form I-589 blank. Mind you, the boxes that we left blank were boxes where there was no answer–for example, for a client without a middle name, we left the “middle name” box blank. In another case, on the signature page where the form asks for your name in your native alphabet, we left it blank because the client’s native alphabet is the same as the English alphabet, which was already included in an adjacent box. In other words, things we’ve been doing for years with no problem have now resulted in applications being rejected. The issue seems to be that USCIS has changed its practice and now requires all boxes to be filled. This would have been fine, if they had told us in advance. They did not. As a result, many people’s cases are being rejected and delayed, we have to incur extra expenses and wasted time, and people who have one-year bar issues now have some extra explaining to do. All because USCIS changed its policy without providing advance notice.
Except for that lack of notice, this change is not a big deal. If you are filing a new case, and you have a box on the form that will be left blank, you should write “N/A” for not applicable. If you have no middle name, or no apartment number, or no social security number, do not leave the box blank, write N/A. If you have three siblings, but the form has room for four, write N/A in the fourth box. If you’ve only entered the U.S. one time, and the form provides room for three entries, write N/A in the remaining two spaces. For questions such as the ones about your spouse and children, if you check that you do not have a spouse or child, I do not think you need to write N/A in every box (though given USCIS’s capriciousness, it couldn’t hurt). Make sure you check all the “yes” or “no” boxes on pages 5 through 8 of the form, and if you check “yes,” provide an explanation in the corresponding space. Also, on the signature page of the I-589, there are some check boxes that people often overlook. Failure to check those boxes can also result in a rejection.
The Asylum Office’s newest employee: “You forgot to check a box? No refuge for you!”
So why did USCIS implement this new policy? And why didn’t they tell us in advance?
Giving USCIS the benefit of the doubt, it makes sense that the I-589 form is 100% complete. Blank spaces–especially for information like names, Alien number, and family members–can create issues for the case. Assuming–and perhaps it is a big assumption–that USCIS does security checks in advance, this information is necessary to implement a complete check. Also, if the Asylum Officer researches the case in advance of the interview (again, another big assumption), it is helpful to have all pertinent information. In short, I think it is fair to require that applicants complete the form and answer all questions, and this includes writing “N/A” where a particular question does not apply.
That said, the problem here is not that USCIS now requires a complete form. The problem is that USCIS changed the definition of “complete” without telling us in advance, and has rejected scores of applications that do not meet the new requirements. In my office alone, we’ve had about six or seven cases rejected in the last three weeks. This is probably more cases than we’ve had rejected in the previous 15 years of my practice as an asylum lawyer. And I am not alone. Many other attorneys are commenting on our list serves about the same issue.
Now, to be completely fair, USCIS did quietly post something on their website–without any sort of announcement–in maybe late September, but by then, it was too late for applications that had already been submitted. If you look at their website today, and check the section “Where to File,” and then scroll all the way to the bottom, you will find this warning–
We will not accept your Form I-589 if you leave any fields blank. You must provide a response to all questions on the form, even if the response is “none,” “unknown” or “n/a.” We will not accept a Form I-589 that is missing the explanation of why you are applying for asylum or that is missing any addendums that you reference in your application.
Don’t forget to sign your form! We will reject any unsigned form.
Why this information is listed under “Where to File” and why it is not more prominently displayed, I do not know (similar information can be found on page 5 of the I-589 instructions). But the decision to start rejecting cases that do not meet this new standard shows–at best–a complete indifference to the plight of asylum seekers and to their right to a fair process.
For those who have not had an asylum application rejected, it may be difficult to understand how upsetting it is. Preparing the application is time-consuming and can be very stressful, especially for people who are already traumatized. When the application is returned, it is often re-arranged and contains numerous USCIS stamps and hand-written information. There is also a two-page Notice of Deficiency, which usually (but not always) explains what needs to be corrected. In the most recent incidents, it took USCIS six or seven 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 none of those things has happened and they have to start over again.
So if your asylum application has been rejected, what do you do? The short answer is, read the Notice of Deficiency, make the required changes, and re-submit the form. But also, double check all the boxes on the form, and if there are any that you left blank, make sure to fill those boxes with N/A, none, unknown, or whatever you think appropriate. Don’t leave them blank. When we re-submit a rejected application, we include a copy of the Notice of Deficiency. Finally, when you re-submit the application, keep a copy of the Notice of Deficiency and any pages that were stamped by USCIS (usually, USCIS stamps the first page of the I-589 with the date the form was received). This provides evidence that the application was filed and rejected. It is important to have such evidence, especially in cases where the one-year asylum filing deadline is an issue, but it is good to have it for any case, as you never know when you might need such proof. Also, the American Immigration Lawyer’s Association is tracking such cases in order to communicate the problem to USCIS. If you would like to be include in this effort, please email me.
What about the situation where the I-589 was initially filed within one year of your arrival in the U.S., but now the case has to be re-filed after the one-year deadline? Not to worry; the regulations provide an exception to the one-year bar where–
The applicant filed an asylum application prior to the expiration of the 1-year deadline, but that application was rejected by the Service as not properly filed, was returned to the applicant for corrections, and was refiled within a reasonable period thereafter.
8 C.F.R. § 208.4(a)(5)(v). The key here is that the application must be re-filed within a reasonable period of time after it is returned to you. To prove that, you need a copy of I-589 stamped by USCIS and the Notice of Deficiency, which provide the initial filing date, and you need proof that the application was re-filed within a reasonable period of time. For that, you need the USCIS mailing envelope and the Notice of Deficiency, which both show when the form was returned to you. For example, we received a returned I-589 on November 7 (after the one year bar), but the stamp on the I-589 indicates September 24 (before the one year bar). We did not cause the delay between September 24 and November 7; USCIS caused that delay. Since we have the Notice of Deficiency and the USCIS mailing envelope, we can prove that that portion of the delay was not our fault. We re-submitted the I-589 on November 8, and we have a copy of our mailing receipt. Thus, our client should be protected in terms of the one-year bar, since we only caused one day of delay, which is certainly a “reasonable” period of time to re-file a rejected application. How long is a “reasonable period” of time to re-file? There is no specific definition, and so the sooner you re-file, the better, but if it takes you a few weeks (maybe to consult with a lawyer), that should be fine.
What about the Asylum Clock? Unfortunately, as I understand the clock, it will not start running until the application is received and accepted. And so in the above example, my client’s clock will start running on November 9 (assuming USCIS accepts the application this time); it will not start on September 24, when the I-589 was initially received (once 150 days passes on the Asylum Clock, an applicant can apply for a work permit).
I think that is enough for now. This recent incident of USCIS using the asylum bureaucracy–which is meant to facilitate asylum applications–as a weapon against asylum seekers is not an isolated event. In a future post, I will discuss USCIS’s plans to raise filing fees and delay or block work permits for future asylum seekers. Stay tuned for more good news…
USCIS recently modified the form I-765, Application for Employment Authorization. The new form, question 30, requires asylum seekers to disclose whether they “have… EVER been arrested for and/or convicted of any crime.” What is the purpose of this question? What if you have been arrested or convicted of a crime? Can you still get an Employment Authorization Document (“EAD”)?
First, this question applies to asylum seekers, whose EAD is based on category c-8. People with asylum, and most others, are not asked about their arrest history when they request an EAD.
Under 8 C.F.R. § 208.7(a)(1), “an applicant for asylum who is not an aggravated felon shall be eligible” for an EAD. This clearly refers to people who have been convicted of an “aggravated felony,” but it presumably also refers to people who admit to having committed an aggravated felony, even if they have not been convicted. The purpose of the question, then, is to determine whether you are an “aggravated felon” (convicted or not) and if so, to deny you an EAD.
So what is an aggravated felony? The term is defined in INA § 101(a)(43), which lists all sorts of crimes that are aggravated felonies. Some of the behavior is quite bad (murder, rape); other behavior seems less severe (passing a bad check, certain illegal gambling offenses). In some cases, a conviction is required. For example, a “theft offense” is an aggravated felony only if the term of imprisonment is at least one year. In other cases, a conviction is not required: If you committed the bad act, you are an aggravated felon.
Even criminals need to work.
On first glance, then, it may seem easy to determine whether someone is an aggravated felon: Just compare the person’s offense with the crimes listed in INA § 101(a)(43). Unfortunately, things are not nearly so simple. Indeed, there is a whole sub-specialty of law–dubbed with the clever portmanteau “Crimmigration”–devoted to analyzing how a criminal offense interacts with the immigration law. The problem is compounded by the fact that criminal laws vary significantly by state and by country, and that we have precious little guidance from the Board of Immigration Appeals or the federal courts. In short, the analysis of whether a particular crime is an aggravated felony can be very complicated and often involves more guess work than seems appropriate for a country where the rule of law is (supposedly) paramount. According to the I-765 instructions, “USCIS will make the determination as to whether your convictions meet the definition of aggravated felony.” Given the complexity of the analysis in some cases, my guess is that USCIS will not always get it right.
All this means that any person who checks the “yes” box for question 30 should be prepared for trouble. Depending on the situation, that trouble could range from delay to outright denial of the EAD.
Who needs to check “yes” for question 30? According to the form itself, you must check “yes” if you were arrested for, or convicted of, any crime (according to the instructions, p. 8, “minor” traffic offenses do not require you to check “yes,” but more serious offenses, including alcohol- or drug-related offenses require a “yes”). What if you were arrested, but it was not for a crime? As I read the form, you could get away with checking “no”. However, the I-765 instructions are a bit different. They read, “For initial and renewal applications, you are required to submit evidence of any arrests and/or convictions.” Thus, even if you were arrested for a political reason (i.e., not a crime), you would have to check “yes”. How to resolve the conflict between the form and the instructions? I do not know. For my clients, I would probably check “no” if the arrest was not for a crime, but I would circle the question on the form and write “see cover letter.” I would then provide an explanation in the cover letter. I would also provide some evidence about the arrest. My concern is that USCIS will accuse the client of lying about an arrest (for a crime or otherwise) and that this would create problems down the line. By providing an explanation, I am trying to protect the client from this danger.
So what happens if you must check “yes” on the I-765 form? First, you will need to get some evidence of the arrest. For a criminal arrest (especially in the U.S.), this would normally consist of the arrest record and the court disposition (the final outcome of the case). Court documents should be certified by the clerk. To get such documents in this country, you would normally contact the court where the case was heard, and ask the clerk for a certified copy of the case. Obtaining such records from overseas will likely be more challenging.
What about for political arrests? USCIS does not provide guidance here, but presumably, you have to get what you can: Court and police documents, lawyer documents, letters from witnesses. Sometimes, people are arrested for a crime, but the arrest is politically motivated. How USCIS will handle such cases, we do not know. But if this is your situation, you would want as much evidence as possible to show that the arrest was pretextual. Maybe letters from people familiar with the case, country condition information (explaining, for example, that the government falsely charges political opponents with crimes) or expert reports would help.
What if the police stopped you, but did not actually arrest you? What about an illegal detention where you were not charged with any crime? Again, it is unclear what to do. Depending on the situation, you could potentially answer “no” to question 30, but I think you need to be careful, as you do not want to be accused later of failing to disclose an arrest. Provide an explanation, and talk to a lawyer if you need help.
Even where a person has an arrest or conviction that is not an aggravated felony, USCIS could potentially deny the EAD. The I-765 instructions note, “USCIS may, in its discretion, deny your application if you have been arrested and/or convicted of any crime.” Thus, even if your arrest or conviction (or admission of a crime) is not an aggravated felony, USCIS could deny the EAD. Presumably, this denial would be based on the discretionary language of INA 208(d)(2) (“An applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Attorney General”). This language is somewhat in conflict with the implementing regulation, 8 C.F.R. § 208.7(a)(1), which states that “an applicant for asylum who is not an aggravated felon shall be eligible” for an EAD. How this conflict would ever play out in a lawsuit, I do not know, but my guess is that if USCIS denies an EAD as a matter of discretion, it will be difficult to reverse that decision.
Finally, what if you are denied an EAD due to an arrest or conviction? Potentially, this is a decision that can be appealed (using form I-290B). However, a discretionary denial is unlikely to be reversed (since USCIS has discretion to do as it pleases, within limits), and given the complicated legal analysis associated with some aggravated felony determinations, an appeal of that issue might be difficult (and would likely require help from a lawyer). Given that an appeal is expensive (a whopping $675.00 for the DHS fee), it probably makes sense to consult with a lawyer about whether there is any chance for success.
The big question in my mind is how USCIS will implement this change. What will they do with political arrests? Will they deny EADs for small matters, in the exercise of discretion? For people with arrests, will the EAD be delayed, and for how long? All this remains to be seen. For people with any sort of arrest, I do think it will be important to get court records and certified dispositions (final results) for all arrests. I also think it would be important to present a legal argument in cases where the EAD could be denied as an aggravated felony or as a matter of discretion. In short, if you have to check “yes” on question 30, it is probably best to consult with an attorney to help you present your application for an EAD. This is an unfortunate expense for asylum seekers, who are probably already overburdened, but if you need a work permit, it is probably money well spent.
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.
The official Asylum Clock, kept in a secure vault at DHS.
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.
