How to Apply for a Work Permit While Awaiting an Asylum Decision

When and how an asylum applicant can apply for a work permit on USCIS Form I-765.

You are allowed to work in the U.S. as an asylum applicant if you are lucky enough to have the timing work out. The rules on this have are in an ongoing state of upheaval, however.

Currently (late 2020), USCIS rules say that you must wait 365 days without a decision on your asylum application before applying for Employment Authorization Document (also called a work permit or EAD). Also, you must not be the cause of any delays in a decision on your application. Nevertheless, these rules are the subject of ongoing litigation, and a federal court has put them on hold for now, in the case of Casa de Maryland, Inc. v. Wolf.

Under the earlier rules, which USCIS sought to change in August of 2020, people who applied for asylum at least 150 days ago and had not yet received an initial decision on their application could apply for an an EAD (though they could not receive one until 180 days had passed).

For purposes of counting the required days, your asylum application is considered filed when it is received by U.S. Citizenship and Immigration Services (USCIS) (for affirmative applicants) or you've filed a defensive application with the Immigration Court (if applying while in removal proceedings).

If you meet the timing requirements, you must file Form I-765 in order to apply for an EAD before you start working. Your EAD will authorize you to work in the United States for a specified period of time.

NOTE FOR PEOPLE ALREADY APPROVED FOR ASYLUM: If you are an approved asylee, you do not need to apply for an EAD. It is enough for you to apply for a Social Security card and present this to employers. Nevertheless, if you are approved by the Asylum Office, that office might initiate the process of preparing an EAD for you. It is a handy form of photo identification, so pursuing one is a good idea. If the Asylum Office doesn't start the process for you, see Granted Asylum Status in the U.S.: When You'll Get Your Asylum Documents for what to do next.

Details on Who Can Apply for EAD Based on a Pending Asylum Application

You will be eligible for a work permit if you not only reach the required number of days without an asylum decision but also, if the new rules eventually go through, if you don't fall into any of these ineligibility categories:

Ineligibility based on application timing. If your asylum application is denied before 365 days have passed, or after 365 days pass but before approval of your work permit, you will not be eligible for a work permit at all.

Ineligibility based on criminal behavior. You will not be eligible for a work permit if you have been convicted of any of certain crimes, which you'll need a lawyer's help to analyze. Additionally, if USCIS has “serious reasons for believing” you committed a serious non-political crime outside the United States, you will not be eligible to receive a work permit.

Ineligibility based on late-filed application. You are ineligible for a work permit if your asylum application was filed more than one year after you entered the United States, unless an asylum officer of immigration judge decides you are allowed to file the application late.

Ineligibility based on unlawful entry. You are prohibited from receiving an EAD if you entered the United States unlawfully. However, there’s an exception if you can prove you had good cause to do so, you went to an immigration officer within 48 hours of entering the United States, and you told the immigration officer you intended to apply for asylum or feared returning to your home country owing to the possibility of persecution or torture.

Ineligibility based on applicant-caused delay. If you do something that delays the decision-making on your asylum application and that delay has not yet been resolved, you will not be eligible to file for a work permit. That can even include filing new evidence within the 14-day period before your asylum interview. For more information about the timing of your work permit application, see When Can Asylum Applicants Get a Work Permit (EAD Card)?

Form I-765 (August 25, 2020 version) asks questions about these topics. Again, however, this could all be reversed by subsequent court decisions. If it is reversed, one important rule to remember will be that anything you do to delay the decision-making process on your asylum case will likely "stop the clock" on your work permit eligibility.

Because of the complexity of these new regulations, not to mention the fact that they are the subject of lawsuits and could eventually be altered, your best bet is truly to consult with an attorney.

Filling Out EAD Application (Form I-765)

You can access Form I-765 for free either on the USCIS website or by calling the Customer Contact Center at 800-375-5283 to have the form mailed to you.

When filling out Form I-765, make sure to first read the instructions that accompany the form. Write clearly and in black ink if you do not have access to a computerized form.

If you fail to answer even one question on the form, the entire EAD application will be returned to you to revise and resubmit. So, if there is no answer to a question or a question does not apply to you, write “N/A” (“not applicable”) or “None” in the answer space for that question. Do not leave any spaces blank.

On Question 27, you must indicate your eligibility category (that is, why you are eligible for a work permit). Enter (c)(8). Attach a copy of the USCIS notice saying that it received your asylum application or other evidence that you had filed your asylum application with USCIS or the Immigration Court.

(As a side note, people granted refugee status should mark category (a)(3) and attach either a copy of their Form I-590 (Registration for Classification as Refugee) approval letter or of Form I-730 (Relative Petition) approval notice; and people granted asylum should mark category (a)(5) and attach a copy of the USCIS letter or an immigration judge’s decision granting asylum.)

You must file your EAD application with the following supporting documents:

  • a copy of Form I-94 (Arrival/Departure Record), if you have one
  • any other proof of lawful entry, if applying based on a pending application
  • copies of any court dispositions for criminal convictions, if applying based on a pending application (and definitely consult with an attorney if you have a criminal record)
  • a copy of your last EAD (if applying for a renewal or replacement EAD)
  • if you do not have a Form I-94 or previous EAD, a copy of a government-issued identity document with your picture, name, and date of birth (such as a passport, national ID document, state ID card, or a visa), and
  • two identical passport-style color photographs of yourself taken within 30 days of filing your EAD application. Make sure to lightly print your name and Alien Number on the back of the photos.

Whether to Include a Filing Fee With Form I-765

The filing fee for an EAD is $410, but USCIS fees are another matter that's mired in litigation. Originally, USCIS planned that on October 2, 2020, the fee for an I-765 would become $550. In addition, starting in October, it planned to charge a biometrics services fee of $30. However, court injunctions have put those plans on hold until further notice. Check the I-765 instructions before submitting your application to make sure you have included the appropriate fees.

Because EADs have specific expiration dates, you will probably need to file for a renewal EAD at a later point. When applying for a renewal EAD, you will also need to pay the filing fee.

You might be able to apply for a fee waiver so that you do not have to pay the filing fee. See Form I-912, Request for Fee Waiver, on the USCIS website. You'll send it along with your I-765, in place of the fee. If it's approved, you won't have to pay any fee.

Filing Form I-765 for EAD

The address to which you will need to submit your complete EAD application will depend on where you live. Make a copy to keep in your records, then send your EAD application with all the supporting documents (and with the fee, if applicable) to a location specified on the USCIS website.

What Happens After You Submit Form I-765

Check USCIS’s case status page to monitor the agency's action on your EAD application. Unfortunately, this could take several months. In the past, immigration regulations gave USCIS a 30-day deadline for asylum applicant, but in 2020 USCIS removed that provision.

If the delays go past USCIS's normal processing times without explanation, call the USCIS Contact Center or submit an online case inquiry.

If your EAD application is approved, you will be mailed your EAD. If it is denied, USCIS will send a notice explaining the reason. You cannot appeal the denial. However, you may submit a motion to reopen or a motion to reconsider with the office that made the decision. If you need to do that, you might want to consult an attorney.

Your EAD will be the size of a state driver’s license or a credit card. It will have your picture on it and some identifying information. When you receive it, look at its expiration date, written on the front. That date specifies how long you are authorized to work in the United States. You can (and should) apply for EAD renewal well before your expiration date, as long as you continue to fit into one of the eligibility categories.

The categories do not need to be the same for each of your EAD applications. For example, you might file your initial EAD application as an asylum applicant (category (c)(8)) and your renewal EAD application as an asylee (category (a)(5)).

To apply for renewal, submit a new Form I-765. Note that USCIS typically will not allow people file for a renewal EAD more than 120 days before their original EAD expires.

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