In June 2020, the Department of Homeland Security (DHS) published two rules that change the eligibility criteria and adjudication timeline for Employment Authorization Documents (EADs) based on a pending asylum application.

The first rule, published on June 22, 2020, removes the 30-day processing deadline for the adjudication of EAD applications filed by initial asylum applicants. Additionally, the rule no longer requires asylum applicants to submit their renewal EAD applications to USCIS 90 days before the expiration of their current employment authorization. This rule is set to take effect on August 21, 2020.

The second rule was published on June 26, 2020, and goes into effect on August 25, 2020. It severely restricts who is eligible to apply for an EAD based on a pending asylum application, increases the waiting period before which an asylum applicant can apply for an EAD, and imposes procedural changes that make applying for asylum more difficult.

Currently, an individual has to wait 150 days after filing their asylum application before applying for an EAD. However, under the new rule, an individual must now wait 365 calendar days after filing their asylum application before they can apply for an EAD. This will apply to any asylum seeker who has not accrued 150 days on their “clock” before August 25, 2020. The new rule will therefore affect anyone whose asylum application was received on or after March 28, 2020, which is 150 days before the effective date of the new rule.

Moreover, the rule states that if there has been an “applicant-caused delay” with an asylum application at the time an individual applies for an EAD, USCIS will deny the EAD application. The rule contains a non-exhaustive list of applicant-caused delays that USCIS will consider. These delays include amending an asylum application that causes a delay in adjudication; an unexcused failure to appear at an asylum interview or decision pick-up; failure to appear at a Biometrics appointment; not filing supplemental documentation to the asylum office within 14 days of an interview, a request to transfer asylum offices or to reschedule an asylum interview, a request to provide additional evidence, or a failure to provide an interpreter.

Under the rule, the following asylum applicants will be ineligible for EADs:

  1. Individuals who have been in the United States for more than one year and file their asylum application on or after August 25, 2020.

These individuals will only be eligible to obtain an EAD if an adjudicator finds that they meet an extraordinary circumstance or changed circumstance exception to the one-year filing deadline. Either an asylum officer or an immigration judge can determine whether an asylum applicant meets an exception to the one-year filing deadline pursuant to INA § 208(a)(2)(D), but this determination must be made before an asylum applicant is eligible for an EAD. As a practical matter, under the current procedures, asylum officers and immigration judges do not decide whether an applicant has met a one-year filing deadline exception until they adjudicate their case for asylum on the merits. This rule does not apply to asylum applications that are filed by unaccompanied minors because they are not subject to the one-year filing deadline. This rule will only apply to individuals who file their asylum application on or after the effective date of the rule, August 25, 2020.

  1. Individuals who enter, or attempt to enter, the United States without inspection on or after August 25, 2020.

This rule has a limited exception: If an asylum applicant enters the United States without inspection and then presents themselves to a DHS official within 48 hours, claims a fear of persecution or torture, and establishes good cause for entering without inspection, the rule will not apply. USCIS officers will determine what is or what is not good cause on a case-by-case basis. Some examples of good cause given in the discussion of the final rule include the need for medical attention or fleeing imminent serious harm, but do not include the evasion of U.S. immigration officers or to circumvent orderly asylum processing.

  1. Asylum applicants who have aggravated felony convictions will continue to be ineligible for EADs.

The new rule expands this EAD ineligibility to asylum applicants who have been convicted of a particularly serious crime or committed a serious non-political crime outside the United States on or after August 25, 2020.

  1. If an individual’s asylum application is denied during the 365-day waiting period for an EAD application or before USCIS actually adjudicates the initial request for an EAD, the pending EAD application will be denied.

The new rule mandates that initial and renewal EADs must have validity periods of no more than 2 years. Additionally, the new rule changes when EADs terminate as follows:

  1. Currently, the rule allows for an EAD to be valid for 60 days after an asylum officer denies an asylum application or on the date the EAD expires – whichever is longer. However, under the new rule, an EAD will automatically terminate on the day the asylum application is denied.
  2. If the asylum application is referred by the asylum office to immigration court, the asylum application is deemed to be pending, and the EAD will continue to be valid and the individual can continue to renew the EAD. Moreover, time will continue to accrue toward the 365-day waiting period after the asylum application is referred to immigration court.
  3. If the immigration judge denies asylum, the EAD will automatically terminate 30 days after the decision, unless the individual submits a timely appeal to the Board of Immigration Appeals (BIA). If the individual timely files an appeal, the EAD will remain valid, and may be renewed, while the appeal is pending. If the BIA denies or dismisses the appeal, the EAD will automatically terminate as of the date of the BIA decision. EADs will now be prohibited during the federal court appeal process, unless the case is remanded to the Executive Office of Immigration Review (EOIR) for a new decision.

Under the new rule, individuals who have passed credible fear interviews and who have been granted humanitarian parole will no longer be allowed to file for an EAD based on the (c)(11) category. These individuals will have to file an asylum application with the immigration judge and establish eligibility for an EAD under the (c)(8) category.

 Procedural changes

Currently, the regulation states that an I-589 will be deemed complete and properly filed if USCIS fails to return the incomplete I-589 within 30 days. The new rule no longer requires that USCIS return a rejected asylum application within 30 days, and an incomplete asylum application will be considered incomplete regardless of when USCIS rejects the application. Thus, the 365-day waiting period would not actually start until the application has been accepted and receipted. Additionally, asylum offices will no longer issue recommended approvals for asylum applications lacking final results on background and security checks.

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