Asylum Applicants Seeking Work Permits: New Settlement Terms

Thanks to the case of A.B.T., et al. v. USCIS, et al, a recently approved nationwide class action settlement, U.S. Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review (EOIR – or the Immigration Court) have implemented new procedures on December 3, 2013 that drastically affect asylum applicants’ eligibility for work authorization.

The “asylum clock” is an imaginary timer that dictates when asylum applicants are allowed to apply for an Employment Authorization Document (EAD) enabling them to work legally in the United States. Current regulations allow asylum applicants to apply for permission to work, but only 150 days after an asylum application is filed with USCIS or in Immigration Court, and only if there are no case delays considered to be at the request or due to the fault of the asylum applicant. An asylum applicant will not be issued an EAD until 180 days have elapsed since filing.

Before the class action settlement, defensive asylum applicants (those who apply in removal proceedings) could file an asylum application only at a Master Calendar hearing before an Immigration Judge (IJ). However, since the Immigration Courts in many locations have huge backlogs, it could take years before asylum applicants got a court date with an IJ. As a result, the asylum clock often did not get started until the asylum applicant finally got his or her day in court.

Even worse was that if an asylum applicant in removal proceedings does not accept an “expedited” hearing date in court offered by the IJ, the clock stops because the Court considers the applicant’s refusal to accept an expedited hearing to be a delay at the applicant’s request. By this logic, you would think that many applicants would want to accept an expedited hearing. However, by requesting an expedited hearing, the applicant must agree to accept the next available hearing date. Some IJs would offer hearings as soon as 14 days away, giving applicants the extremely difficult choice of either waiting years for an asylum hearing without the ability to work or accepting a hearing with little time to prepare documents, witnesses, testimoney, and so forth.

The two major changes as a result of the asylum clock settlement are:

  1. You can “lodge” an asylum application before your court date. Now defensive asylum applicants can “lodge” a completed asylum application (USCIS Form I-589) with the court clerk at any time before their Master Calendar hearing. Once an application is filed with the clerk, the clock will start. Defensive applicants will still need to officially file their applications with the IJ, but the wait time won’t be counted against them for work authorization purposes.
  2. IJs must offer applicants at least 45 days to prepare for expedited hearings. Now asylum applicants will be assured that their “expedited” individual hearing date will be at least 45 to 180 days in the future.

Nolo will be updating its asylum articles as a result of this procedural change. For more information on the asylum clock settlement, see the USCIS page on the settlement agreement.