Work Permit for Asylum Applicants

Many asylum applicants have experienced problems with the so-called “asylum clock”. The asylum clock is a clock that measures the 150 days after an applicant files for asylum before the applicant can apply for an employment authorization document (EAD, also known as work permit, which gives them the right to legally work in the United States).

Under the current rules, a person who applies for asylum in the United States cannot apply for employment authorization at the same time. The asylum clock starts once the I-589, application for asylum, has been reviewed and found properly filed and complete by the service center or the asylum office. After that, asylum applicants must wait at least 150 days before they can apply for employment authorization with the United States Citizenship and Immigration Services (USCIS). USCIS then has 30 days to process work permit applications. Thus, a total of at least 180 days must elapse before an asylum applicant can receive his or her work permit.

The asylum clock can be stopped by asylum officers and immigration judges if it is determined that the applicant caused a delay in his or her case, for example missed his or her fingerprinting appointment without establishing a good cause, or asked to reschedule an interview or hearing without an exceptional circumstance. Most common problems arise when the asylum clock is stopped improperly (when the applicant has not caused any delays in the case) or indefinitely (when the clock is not restarted as it should). As a result, many asylum applicants end up waiting for much longer than 150 days to apply for work permits, which creates substantial burden on them as they are unable to work legally during that time.

The current system was set in place in 1994 as a response to a growing number of asylum applications. Before 1994, applicants could file for asylum and work authorization concurrently, and asylum officers could authorize employment for up to one year even if asylum was not granted at the interview. As the number of asylum applications grew, creating backlog and delays in processing, critics argued that many people filed asylum applications in order to obtain work permits. In 1994, the regulations were amended to state that “an asylum applicant [would] not be eligible to apply for employment authorization based on his or her asylum application until 150 days after the date on which the asylum application [was] filed.” In 1996, Congress amended the Immigration and Nationality Act (INA) to reflect the language of the regulations by adding the 180-day waiting period for EAD eligibility and the 180-day deadline to adjudicate asylum applications. Therefore, although USCIS and immigration courts operate as if there were only one asylum clock, there are actually two clocks: the asylum adjudication clock and the EAD (work authorization) asylum clock. The asylum adjudication clock measures the number of days an asylum claim has been pending; the EAD asylum clock measures the number of days after an applicant files an asylum application before the applicant is eligible for work authorization.

A recent report identified five most common problems with the asylum clock highlighted by practitioners and immigration advocates:

(1) a lack of transparency in the management of the clock;
(2) a lack of clarity and comprehensiveness of the government’s clock policy;
(3) misinterpretation of the regulations governing the clock;
(4) improper implementation of the government’s clock policy; and
(5) problems associated with Executive Office of Immigration Review (EOIRs)’ case completion goals.

Problems with asylum clock most often arise in immigration courts rather than asylum offices. Often, judges do not inform applicants that their clock has been stopped, and are not required to put notes in the applicant’s file as to why the clock has been stopped, opening the door to possibility of untraceable clerical error. In some courts, it is not clear who controls the clock, or how to restart the clock when the applicant is no longer responsible for the delay. Different immigration judges sometimes interpret “delay requested or caused by the applicant” differently, making it difficult for applicants to foresee how a specific request may affect their clock. Sometimes immigration courts implement the asylum clock provisions contrary to their own policies, for example permanently stopping the clock in cases where it is not stipulated by the regulations. Finally, the case completion goal for both affirmative and defensive asylum cases is currently 180 days, which may force immigration judges to stop the clock in order to meet the adjudication deadline.

The report proposes a new policy that would do the following:

read more: http://islawfirm.com/asylum-clock/