Court Settlement Will Help Asylum Applicants Get Work Permits Sooner

The EAD clock gets a rewind.

Thanks to the settlement agreement in a nationwide class action lawsuit known as A.B.T., et al. v. USCIS, et al., U.S. Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review (EOIR) will have to clean up their acts in determining when an asylum applicant is and isn’t eligible for a work permit (Employment Authorization Document or EAD).

At issue is the underlying question of how to count the running of days on the “asylum EAD clock.” If more than 150 days goes by between the date an applicant files a complete asylum application and the date USCIS or the EOIR makes decision on the case, the applicant is, by law, supposed to become eligible for a work permit (issued after another 30 days). The clock would be, in theory, stopped when delays were the applicant’s fault, and then restarted.

The trouble is, various EOIR and USCIS policies for administering this program in removal proceedings created a world in which it was all too easy to stop the clock and nearly impossible to get it started up again.

The settlement agreement attempts to deal with five of the major causes of unfair clock stoppages, as follows:

  1. EOIR’s refusal to start the clock until the complete asylum application was filed at a court hearing before an immigration judge. The settlement replaces this arbitrary rule with one allowing the applicant to lodge the application with the court clerk before the hearing.
  2. Applicants being offered the impossible choice of a hearing 14 days away (expedited, which keeps the clock running) versus months or years away (regular court schedule). The settlement requires that expedited hearings for non-detained applicants be scheduled at least 45 days into the future, so that they have enough time to prepare without having to stop the clock.
  3. EOIR failures to restart the clock after an appeal and remand following a denial. The settlement provides that the clock must be restarted on the date that the Board of Immigration Appeals (BIA) sends the case back to the immigration judge for reconsideration, plus be credited with the number of days that the case was on appeal.
  4. USCIS providing inadequate notice of consequences of missing an asylum interview. The legal consequence of missing a USCIS asylum interview is that the EAD clock is stopped forever – but most applicants don’t know that. Under the settlement agreement, USCIS will notify asylum applicants who miss their interview of how this impacts their right to an EAD, and give them 45 days to show good cause for missing the interview.
  5. Inadequate information about EAD clock decisions and procedures. It’s common for asylum merits hearing to stretch over more than one day. Every time the immigration judge schedules a continued hearing, he or she must enter an “adjournment code” into the file. That code dictates whether the EAD clock is stopped or not. So it hardly seems fair for the IJ not to mention which code is being entered or why. The settlement provides that the Immigration Court will give asylum applicants written notice about the impact of the different adjournment codes and the immigration judge will state clearly, on the record, the reason for adjournment.

The settlement agreement is not in effect yet, but assuming all goes well and the court signs off on it as expected, it will go into effect in early November 2013. For more information, see the excellent set of FAQs issued by the parties who brought the suit.