Substantial Changes to Employment Authorization Document Procedures for Asylum Seekers Beginning on August 25, 2020

Substantial Changes to Employment Authorization Document Procedures for Asylum Seekers Beginning on August 25, 2020

11.08.2020

The new rule released by the Department of Homeland Security was published on Federal Register on June 26, 2020, and brings substantial restrictions for those who apply for  Employment Authorization Document (EAD) and asylum in the US concomitantly.

The new rule is designed to take effect on August 25, 2020, and will bring drastic procedural alterations and restrictive measures compared to the current regulations on EAD assumed from asylum applications within C(08) category.

The Current Regulations and Upcoming Changes on EOD and Asylum Seekers

In the current situation, once an individual applies for asylum either with USCIS or the Court, he/she becomes eligible to apply for EAD within C(08) category 150 days after filing and may be granted an EAD 180 days after that filing as well.

However, the new rule abrogates many long-standing practices and procedures regarding C(08) based EAD. Below are the most notable ones:

  1. The mandatory waiting period for C (08) EOD is increased to 365 days from 180 days.
  2. According to the US Asylum Law, unless there is an exception, one must file his asylum application within one year after entering the country. The new rule states that if that deadline is missed, the asylum applicant will not be granted an EOD. Although there are a few exceptions, this poses a serious problem for the asylum applicants who initially file their asylum petitions on/after August 25, 2020, and entered the US more than one year before that day.
  3. When the new rule takes effect, those who enter the US illegally or without the proper inspection by the authorities would not be eligible to be granted an EAD. One exception of this rule is that if they notify DHS in 48 hours and express his/her motivation to the illegal entrance in terms of imminent harm, fear of persecution or torture, or good causes such as urgent medical requirements.
  4. Recommended Approvals of USCIS Asylum Offices for a C(08) EAD is not an option under the new rule
  5. The new rule also regulates the retaining periods of already possessed EODs e after denial of asylum cases. As a general rule, EAD will be good for 30 days after the immigration Judge’s denial decision. Appeals filed with the Board of Immigration Appeals suspend that period, and the asylum applicant can retain his/her C (08) EAD until the final decision of the board. However, this doesn’t apply to the appeals made with the federal circuit court of appeals.
  6. The new rule imposes that if the applicant was convicted of a “particularly serious crime” in the US, or committed a serious non-political crime outside the US on/after August 25, he/she will not be eligible to receive an EAD. For Aggravated Felonies, there is no date specified.
  7. Delays within the asylum case procedures such as interviews, biometrics, notification responsibilities caused by the applicants will result in denial of first C(08) EAD  by USCIS under the new rule.
  8. For properly filed C(08) EAD applications, approval by the USCIS is mandatory at present. The new rule makes it discretionary.

Implications

August 25, 2020, appears as the critical date after all these changes and seems to have the most prominent aftermaths for those who enter the US and file their application of asylum on or after this date. If you are an EOD seeking individual and if your asylum application is still under review for at least 150 days, filing for C(08) EAD before August 25 could be an option worth considering.

One other recent development regarding the initial EAD application is the adjudication period of USCIS. On June 19, a new rule of the Trump administration, which will come in force on August 21, was released, and the 30 days finalization requirement for the adjudication process was eliminated. Incidentally, one should expect longer waits.

Needless to say, the C (08) EAD changes and expected consequences are abound in caveats and pitfalls, and every case should be evaluated on its own terms. We recommend asylum applicants to examine and review all their details in their cases with their immigration attorneys.

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