Although employment authorization is not an asylum applicant’s automatic right, an asylum applicant may be authorized to work.
In addition, employment authorization may NOT be granted before 180 days after the date the asylum application was filed. The regulations allow the applicant to submit the EAD application once the asylum application has been pending for 150 days but DHS will not issue the EAD until at least 30 days later, for a total of 180 days. If an application for asylum is denied within the first 150 days, the applicant is generally ineligible for employment authorization.
In practice, there are a couple of ways that an applicant will receive employment authorization. First, although USCIS generally schedules an interview within 45 days of receipt of the application sometimes USCIS delays scheduling an interview, especially if the applicant lives far away from an Asylum Office and must be scheduled for a “circuit ride” by an Asylum Officer. Likewise, while decisions are usually issued by the Asylum Office two weeks after the interview, sometimes if there is a different issue of law, the application is sent to “headquarters” before the Office can issue a decision. Under either of these circumstances, if more than 150 days elapse from receipt of the application, the applicant is eligible to apply for employment authorization.
If the applicant is unsuccessful at the Asylum Office and referred to removal proceedings, he can also apply for an EAD 150 days after the application was filed. The applicant should be aware, however, that any postponements requested by the applicant or his attorney will stop the clock. If, for example, the attorney requests a one month adjournment to gather corroborating documents, the clock will be stopped during this adjournment period. As a practical matter, it is often difficult to restart the clock once it’s been stopped. You can find out how many days have elapsed since the filing of the application by calling the Immigration Court automated phone number 1-800-898-7180 and entering the applicant’s alien registration number.
It is important to know that if your attorney asks for a continuance or if an alien has asked for a continuance of his or her case in the past, the “clock” will or has been stopped and it may not be possible to get the clock restarted, even if there is a further delay caused by the Court rather than by your client.
For an excellent report on the problems many asylum seekers face in obtaining employment authorization and the wrongful stopping of the “clock” in many cases, see Up against the Asylum Clock: Fixing the Broken Employment Authorization Clock System
For persons granted asylum, it is not necessary to obtain an EAD in order to work legally. (See March 10, 2003 INS Memo available at http://www.uscis.gov/sites/default/files/files/pressrelease/Asylees031003.pdf.) Also, asylees will be able to obtain an unrestricted social security number which they can present as proof of status to work. (See Social Security website.
Also, on November 15, 2011, the Executive Office for Immigration Review (that is, the Immigration Court) issued comprehensive guidance on when the clock should stop, start, and the duties of immigration judges to explain what is happening with the clock.
Eligibility for employment authorization is defined in the negative. An asylum applicant must demonstrate all of the following:
- That he has NOT been convicted of an “aggravated felony.”
- That he has NOT failed to appear for an asylum interview or a hearing before an Immigration Judge (unless the applicant demonstrates exceptional circumstances for having failed to appear).
- That he has NOT had his asylum application denied by an Asylum Officer or by an Immigration Judge within 150 days after applying for asylum. [Note: A referral of the asylum applicant to Immigration Court for removal proceedings is not considered a denial of the application and therefore does not prevent issuance of an EAD.]
- 4. That he has NOT asked for a continuance in Immigration Court before 180 days since the filing of the application.
When to File
The applicant should file “no earlier” than 150 days after the date when his completed asylum application was filed, with one exception. An applicant who has been recommended for approval may apply for employment authorization when she receives notice of the recommended approval. However, if the asylum application is returned as incomplete, the 150-day period does not begin to accrue until the USCIS receives a completed application. That means that any delay requested or caused by the applicant shall not be counted.
What to File: Application
To apply for work authorization, a client will need to file an Application for Employment Authorization (Form I-765) available at the USCIS website. Note that each family member living in the United States who is included on the applicant’s asylum application may submit an I-765. This means that even if the applicant’s child is not of legal age to work, an application may be filed on that child’s behalf so that she may get a social security number.
If the application is filed before there has been a final decision on the applicant’s claim, the proper eligibility category is “c8 – asylum pending” and the application is mailed to the regional Service Center with jurisdiction over the applicant’s residence. If an asylum applicant wins “recommended approval” after her asylum interview, she can file for an EAD even if, as is generally the case, fewer than 150 days have elapsed since filing. An applicant with “recommended approval” is not legally permitted to work unless she has a valid EAD. The EAD application for an applicant with “recommended approval” is also filed under the “c8 – asylum pending category” with the local Service Center. It is not until an applicant has final approval that she is no longer required to have an EAD to work.
Proof of Pending Asylum Application
Along with the form I-765, the applicant must submit proof that the asylum application has been filed with the USCIS or Immigration Judge, or that it is pending before the Board of Immigration Appeals or federal court. Once an EAD has been issued, the applicant can continue to renew it even if he loses before the IJ, so long as he continues to pursue his appeals. If however, the IJ denies the case before the EAD is granted, then even if the application eventually reaches the 180 days after the removal order and appeals, he will not be able to get an EAD.
Fee and Fee Waiver
There is no fee required for the applicant’s first application for employment authorization. After the first application and for renewing employment authorization, the filing fee is currently $175.00. To make sure that the fee has not increased since this manual was printed, check the USCIS website.
If the applicant can demonstrate an “inability to pay” the filing fee, then he may file a fee waiver request. The applicant should submit an affidavit or declaration asking for the waiver, stating his merits for obtaining employment authorization, and demonstrating the reasons for his “inability to pay.” He should also submit proof of his monthly income, if any, and monthly bills, such as rent, utility bills, phone bills etc. For more information, see http://www.uscis.gov/feewaiver for further guidance on requesting a fee waiver. Any application filed with a fee waiver request should have “Fee Waiver” written in large letters on both the cover letter and envelope, to prevent a clerk from mistakenly returning the application for failure to pay the fee.
The applicant must also submit 2 color, passport style photographs. The applicant’s head should be bare and the photo should not be larger than 1 ½ x 1 ½ inches. Further, the applicant’s name and “A” number should be lightly printed on the back of both photos in pencil. The photographs should be inserted into a sealed envelope and paper-clipped to the I-765 application.
Where to File
The I-765 application must be filed at the appropriate USCIS Service Center (i.e. the Service Center with jurisdiction over the residence of the applicant) if the application is still pending. See https://egov.uscis.gov/crisgwi/go?action=offices.type&OfficeLocator.office_type=SC to find the appropriate Service Center for your location. Once asylum has been granted, applications are filed with the Nebraska Service Center.
You can also file applications for employment authorization electronically. Those who choose to file electronically are not required to submit standard photographs, but must make an appointment at a local Application Support Center for the electronic capture of their photograph, fingerprints and signature.
Timeline for Adjudication
It usually takes 60 to 90 days for an applicant to get an employment authorization card issued. The applicant will first receive a Notice of Receipt of the I-765 application. Once her I-765 application is approved, then the applicant will receive a Notice of Approval.
The USCIS has 30 days from the I-765 application filing date to approve or deny the application. (See “When to File” section)
Employment authorization is valid for one year. It is renewable while the asylum application is being decided and, sometimes until the completion of any administrative or judicial review of the asylum application. However, the renewal application must be filed 90 days before the previously issued employment authorization expires.
To renew, the applicant must file an I-765 form with the filing fee, or fee waiver request, along with proof that the applicant continues to pursue his asylum application. Such proof depends upon the stage of the applicant’s asylum application. A copy of the following may be appropriate proof:
- For proceedings before Immigration Judge: The asylum denial, referral notice, or charging document; OR
- For applications pending at the Board of Immigration Appeals (BIA): A BIA receipt of timely appeal; OR
- For claims pending in federal court: The petition for review or habeas corpus date stamped by the appropriate court.
When Employment Authorization Terminates
Employment authorization terminates after the applicant’s asylum application is denied. The following represents when employment authorization terminates, depending upon who terminated the asylum application.
- After Denial by an Asylum Officer – The employment authorization shall terminate either at the expiration of the employment authorization document OR 60 days after the denial of asylum, whichever is longer.
- After Denial by an IJ, the BIA, or a Federal Court – The employment authorization terminates upon the expiration of the EAD, unless the applicant has filed an appropriate request for administrative or judicial review.
Asylees and EADs
Once an applicant is granted asylum, either with a final approval letter from the Asylum Office or from the Immigration Judge, she is legally permitted to work in the United States and is not required to have a valid EAD to work legally. Thus, asylees can obtain unrestricted social security cards, which are cards without a notation that they are only valid with CIS employment authorization. Many asylees still apply for and obtain EADs, however, because they are a good form of identification to have, and may be necessary in order to obtain other identification such as state issued drivers’ licenses or identification cards. An asylee applies for an EAD using a different eligibility code than an asylum seeker. Asylees use code “a5” and file with the Nebraska Service Center.