When Can Asylum Applicants Get a Work Permit (EAD Card)?

Asylum applicants don't qualify for a work permit until their case is won or 365 days have passed with no decision.

Under U.S. immigration laws, only certain immigrants are allowed to work, usually after they apply for a work permit called an Employment Authorization Document (EAD).

If you are seeking to apply for an EAD before August 25, 2020, your asylum application must have been pending 150 days without a decision, and you will be eligible to receive the EAD only after you have been waiting 180 days in total.

The eligibility rules change on August 25, 2020, however. Starting then, in order to apply for an EAD, you have to either:

  • win your asylum case (which could take several years), or
  • be left waiting 365 days or more with no initial decision on your application from the asylum office or from the immigration court.

If you win your asylum case, you not only gain the right to work in the U.S., but don't need to apply for an EAD with which to do so. Your asylum grant allows you to obtain an unrestricted Social Security card, which is all you need to present to an employer.

Now let's look at some unique issues raised by the second option of applying for a work permit if there's been no decision on your case within 365 days of your application.

Is a wait that long likely to happen? Previously, you could expect to wait months, or even years, before you spoke to an asylum officer or immigration judge about your asylum application. But USCIS has taken steps to combat what it saw as a problem of people applying for asylum mainly to get a work permit. In 2018 it began scheduling recent asylum applicants BEFORE people who'd applied earlier, to make sure they had less of a chance of receiving a work permit. (Speak to an attorney for the latest on how long you are likely to wait.)

In any case, you will want to start the asylum application process as soon as possible.

If you're applying with USCIS ("affirmatively"), you'll get a receipt notice telling you when it receives your application, which will be the date you begin counting the 365 days.

If you're applying after being placed in removal proceedings, you might not have to be in front of an immigration judge to get the process started. You can just go to the court and "lodge" (give to the court) a not-entirely-complete asylum application. (It is uncertain, however, whether lodging will continue after the August 25, 2020 rule takes effect.)

Under the lodging procedures, the court stamps your copy, so that when applying for your EAD you can show USCIS that date for purposes of figuring out when you're eligible. (You'll still have to officially "file" your full asylum application with the immigration judge later, but before having been in the United States for one year.)

Another option if you’re in removal proceedings is to file your full asylum application with the immigration court as part of the proceedings. That application will be the one the immigration judge reviews in considering your case for asylum. The court will stamp your copy with the date, so that when you apply for your EAD you can prove to USCIS that the 365 days started that day.

Your wait to apply for an EAD could be even longer than 365 days. If your asylum application has been pending for 365 days but the application has been delayed by something you've done and the delay is still ongoing when you apply, your EAD application will be denied.

You might end up delaying your asylum application for any of various reasons. For example, you might request more time, or fail to show up for a fingerprinting appointment, or request to submit additional evidence, or submit additional evidence less than 14 days before your interview, or fail to bring an interpreter to your interview.

If you're in removal proceedings, the government can consider your case delayed if you ask for your case to be postponed so you can get an attorney; if you ask for more time to prepare your case; if you say no when the judge asks you if you want your asylum claim to be heard sooner than normal; or if you file a motion that delays your case.

Once 365 days have passed and you have applied for an EAD, the government is supposed to start processing it. In the past, immigration regulations gave it up to 30 days to make a decision. However, the government did away with that regulation in 2020, saying USCIS needed more "flexibility."

If You're Allowed to Apply for a Work Permit

If 365 days pass with no initial decision on your asylum application, you'll need to determine if you are eligible for a work permit and take steps to apply for it.

The application process involves filling out USCIS Form I-765. For more detailed instructions, see How to Apply for a Work Permit as an Asylum Applicant. For in-depth information on asylum and refugee protections and all key immigration law issues, see U.S. Immigration Made Easy by Ilona Bray (Nolo).

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