News > Fact Sheets
Posted on Aug 04 2020
Current as ofJuly28,2020
There are two new rules going into effect.Bothrulesmodifythe Department of Homeland Security’s (DHS) regulations governing asylum applications, interviews, and eligibility for employment authorization based on a pending asylum application.
Rule 2:Asylum Application, Interview, and Employment Authorization for Applicants
When do theserulesgo into effect?
Unless stopped by litigation, the“Removal of 30-Day Processing Provision” rulewillgo into effect onAugust 21, 2020.The “Asylum Application, Interview, and Employment Authorization” rule willgointo effect on August 25, 2020.
What dothese rulesdo?
Removalof 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications
- Removes a rule statingthatUnited States Citizenship and Immigration Services (USCIS)must process an initial employment authorization application within30 daysoftheinitialfiling ofForm I-765, Application for Employment AuthorizationDocuments(EAD)
- Asylum seekers who file their work authorization applications on or after August 21, 2020 will no longer be guaranteed thatUSCISwill process their application within any specified timeframe.
- Removes the requirement that a renewal application must be received by USCIS 90 days before the previous employment authorization expires.
Asylum Application, Interview, and Employment Authorization for Applicants
- Extendsthe waiting period to apply for employment authorization to 365 days after an asylum application is received by USCISor the Immigration Court;
- Stops USCIS from issuing‘recommended approvals’forasylum;
- Excludesasylum seekers convicted of an aggravated felony and those who “have committedcertain lesser criminal offenseson or after the effective date” of August 25, 2020from receiving employment authorization;
- These lesser criminal offenses will include being convicted of a felony in theUnited Statesor a serious non-political crime outside the United States, or being convicted in the United Statesof certain public safety offenses involving domestic violence or assault; child abuse or neglect; possession or distribution of controlled substances, or DUI;
- Excludes asylum seekers who entered the United States without documentation from applying for anEAD, with someexceptions.
- Revises the provisions for EAD termination so that if an asylum application is denied, any employment authorization associated with a pending asylum application would be terminated as well;
- If, however, it is referred to an immigration judge the EAD will be extended until the judge makesa decision. If that decision is successfully appealed,the EAD will be extended again.An EAD cannot be granted while the case is in Federal court, however, or after the Board of Immigration Appeals (BIA) denies an asylum claim.
- Changesthetimelinefor filing an asylum application and removesthe requirement that USCIShas toreturn an incomplete application within 30 days;
- This also allows USCIS to denyEAD applicationsif a delay caused by the applicant is still ongoing when the EAD application is filed.If an applicant misses the asylum interview or a biometrics appointment, the new rule allows for the denial of an EAD.
- Allows USCIS to setEAD validity periodsat their discretionand clarifies that any EAD validity period cannot exceed increments of 2 years;
- Incorporates biometrics collection requirements into the employment authorization process for asylum seekers.Thisrequiresapplicants to appear at an Application Support Center (ASC) for biometrics collection and, if required, pay a separate biometric services fee;
- Makes asylum seekerswhofile their asylum applicationsmore than1 yearaftertheir arrival into the United Statesineligible for an EAD.
How did this part of the law work before thesenew changes?
Currently, asylum seekers must wait 150 days after submitting their asylum application before filing an EAD application.The government then has 30 days to process the application.
Who is impacted by these rules?
These rulesaffect anyone applying for asylum who also intends to apply foremployment authorization.
In particular, asof August 25, 2020, the following groups are affected:
- Asylum seekerswhoseasylumapplicationshavebeen pending for less than1year orasylum seekerswho were planningon receivinganEAD in less than1year;
- This includes those enteringat the border, including women and children seeking international protection at a U.S. border or port of entry;
- May include those who are unable to file their asylum application within one year due to administrative or proceduralhurdles outside of their own control;
- Asylum seekersapplying for an EAD who have committed criminal offenses;
- EADapplicants whochange or amend their asylum applications–asthis rule might meanthat action willimpacttheir chance of getting anEAD.
I am applying for an EAD, but I am not seeking asylum. Do these rules apply to me?
These rules only apply to people who have asylum in the United States or who are applying for asylum in the United States.They do not apply to other non-citizens applying for an EAD.
I am waiting for theasylum office’s decision on my asylum case. Dotheserulesapply to me?
It depends on if you have already applied for an EAD or if you were planningon doingso in the future.
The rule onlyimpactsEAD applicationsreceived after August 25, 2020.If you have already applied, your application willbeevaluated the same way EAD’s have been in thepast.If you have not yet applied, the rule could apply to future EAD applications.
Ifyouare waiting for a decision on your asylum caseandplan tosubmitan EAD application after August 25,2020thesenew rules will apply to your case.
I am in removal proceedings and waiting for a judge’s decision on my case.Do these rules apply to me?
Yes.If youareapplyingfor asylum and an EADwhile in removal proceedings these rules may also apply to you.
I entered the United Stateswithoutdocumentationor have committed criminal offenses in the past. Should I be worried that I am no longer eligible for an EAD?
No.Ifyou enteredwithout documentationor committed criminal offenses before August 25, 2020 your eligibility for an EAD should not be different. Going forward,however,committing theseactionswill make you ineligible.
My current EAD does not expireuntil after August 25, 2020. Dotheserulesapply tome?
Theserules should notaffectyourcurrent EAD. If you plan on renewing your EAD after August 25, 2020, your application will be affected.
What should I do if I was planning to apply for an EAD?I’m not sure if these rules apply to me.Who can I call for more information?
Make a note of the Auguststartdates of these rules and consult with animmigrationattorney as soon as possibleto discuss how the rule could impact you.
If you have questions about these new rules and are a resident of Minnesota and eligible for ILCM services, you can contact ILCM at (651) 641-1011 or 1-800-223-1368 on Mondays, Tuesdays, and Wednesdays from 9 a.m.-4 p.m. or Thursdays from 1-7:30 p.m.
Other resourcesinclude the Advocates for Human Rightswho can be contactedMonday to Friday from 9 a.m. to 5p.m612-341-9845.Or call the Volunteer Lawyers Networkat (612) 752-6635.
Printable PDF version of this FAQ, here.
