Legal Update - Changes to Asylum Employment Authorization

Two changes occurred this month to work permits for those with pending asylum applications. The first, that went into effect on August 21, 2020, removed the 30-day first time employment authorization application processing deadline. The direct impact of this rule change means that any first time application for employment authorization for an asylum seeker will no longer be processed within 30 days.

The second more broad sweeping change went into effect on August 25, 2020. There are multiple components to this rule change.

First, the rule increases the number of days an asylum application must be pending before an individual can apply for work authorization. Previously, an individual only needed to wait for 150 days. Under the new rule, the waiting period is increased to 365 days. Even if you filed your asylum application before August 25, 2020, this rule will apply to you and you will have to wait a full year before applying for your first work permit.

Second, this rule changed the eligibility requirements for work authorization as an asylum seeker. If an individual entered or attempted to enter the United States between official ports of entry on or after August 25, 2020, they are no longer eligible to receive work authorization. There is a limited exception to this prohibition for those who crossed the border, presented themselves to DHS or CBP without delay, had good cause for crossing between ports of entry, and are claiming a fear and desire to apply for asylum. This rule also barred individuals who applied for asylum more than one year after entering the United States from work authorization and filed their application after August 25, 2020. There is a limited exception to this rule that states an individual can be eligible for work authorization if they are designated as an unaccompanied minor or if and when the asylum office or an immigration judge determines they meet an exception to the one year bar to asylum. Finally, the rule also altered which individuals with criminal histories are eligible for work authorization. Any individual who is convicted of an aggravated felony or a particularly serious crime in the United States, or a serious non-political crime outside of the United States on or after August 25, 2020, will not be eligible for work authorization.

The third change this rule implemented is when work authorization ends. Work authorization will automatically terminate in the following circumstances for those who receive their first Employment Authorization Document (EAD) on or after August 25, 2020:

• If Asylum Office denies asylum and the applicant has another lawful status, the EAD will automatically terminate on the date of denial

• If Asylum Office refers the case to court, then the EAD will continue to be valid

• If an immigration judge denies asylum and no appeal is filed, then the EAD will automatically terminate

• If an appeal is filed after a judge denies asylum, then the EAD will continue to be valid

• If an appeal is denied, then the EAD expires on the day of denial

Finally, this rule made work authorization for asylum seekers discretionary. This means that even if an individual is eligible for work authorization, they must also show that they warrant a positive exercise of discretion by showing positive factors like assets, income, expenses, and family ties.

There is ongoing litigation challenging this new rule in federal district court, which could impact the ability of the government to implement this rule. As of the date of this writing, the rule is scheduled to go into effect as planned and will be implemented in full.