Applicants for asylum often ask us, “Can I get a work permit?” The answer depends upon the “asylum clock”.
Generally speaking, an individual with a pending asylum application will be eligible to submit an Application for Employment Authorization (Form I-765) 150 days after the filing of their complete asylum application.
U.S. Citizenship and Immigration Services (“USCIS”) has the authority to grant the employment authorization after the clock strikes 180 days. That seems straightforward enough. But, calculating the 150 days can be complicated and certain events will trigger the clock to stop.
For Affirmative (Asylum Office) Asylum Seekers:
If the applicant has filed an affirmative asylum application with USCIS, there are certain things he/she can do that will cause the accrual of days on his/her asylum Employment Authorization Document (“EAD”) clock to stop, namely:
1) The applicant receives a notice to appear for an interview and asks to reschedule;
2) The applicant receives a notice to appear for a biometrics appointment, and misses the appointment;
3) The applicant misses his/her asylum interview ;
4) USCIS denies the asylum application; or
5) The applicant receives a notice to appear at the asylum office to receive the decision on their application, and fails to appear.
In the event the asylum office refers an applicant’s case to the Immigration Court, the referral itself will not stop the clock. However, subsequent acts by the applicant can cause the court to stop the clock. (See below, For Defensive Asylum Seekers).
For Defensive(Immigration Court) Asylum Seekers:
In the case of an individual who is applying for asylum before the Immigration Court, things become a little more complicated. An asylum application is not considered “filed”, thus starting the clock, until the application is received by the Immigration Judge in open court at a hearing. Given current backlogs, particularly in the Chicago Immigration Court, most individuals find themselves waiting months or even years before their scheduled hearing. Therefore, the individual cannot “file” their application while waiting for their day in court.
Thanks to a lawsuit that addressed this and other EAD clock related concerns, these individuals are not out of luck with regards to their employment eligibility. Pursuant to a settlement reached as a result of the suit, individuals may “lodge” their application at the court clerk’s window prior to their scheduled hearing, in order to start their EAD clock.
Once the clock has begun to run, any action on the part of the applicant (the “Respondent” in the proceedings) which causes a delay in the case will stop the clock, specifically:
1) The Respondent declines to take an expedited hearing;
2) The Respondent asks for a continuance for any reason, e.g. to find an attorney or for additional time to prepare; or
3) The Respondent requests a change of venue.
In these instances, the clock will restart at the next hearing; but, if the Respondent continues to cause a delay, it will remain stopped indefinitely. Thus, the Respondent will not be entitled to work authorization.
Determining the Number of Days Accrued on the Clock:
Affirmative Asylum Seekers:
In order to determine how many days have accrued on an affirmative asylum applicant’s asylum clock, the start date will begin on the date USCIS received the asylum application, as indicated on the I-589 Receipt Notice issued by USCIS.
Defensive Asylum Seekers with “filed” application:
For an individual in removal proceedings before the immigration court who has filed his or her application with the judge in open court, call the Executive Office of Immigration Review Hotline at (800)898-7180 and choose option #2.
Defensive Asylum Seekers with “lodged” application
When an individual “lodges” their application with the court, the court clerk will stamp the application and return it to the applicant. The date stamped on the application is the date the clock started, and the applicant will need to count the 150 days from that date.
Given the complexities of the asylum clock, as with all areas of immigration law, applicants are strongly encouraged to consult with an experienced immigration attorney to fully discuss their particular case.
Immigration Attorneys, LLP focuses its practice in the area of immigration and nationality law. We represent clients in a wide variety of immigration case matters including family and employment-based work, deportation defense work, immigrant and non-immigrant visa work, consular processing overseas and naturalization matters.