DHS’s Final Rule on Employment Authorization for Asylum Applicants goes into effect today. The regulation introduces several new measures that significantly limit an asylum applicant’s ability to get or renew their work authorization document.
This rule makes major changes to the ability of asylum applicants to apply for and receive permission to work in the United States while their asylum applications are pending. Up until today, any applicant for asylum could apply for work authorization once that asylum seeker’s application had been pending for at least 150 days. The application had to be approved within 30 days. Once the work authorization expired, applicants could renew their work authorization as long as their asylum application remained pending.
The new rule changes all that. Below is a brief breakdown of what the rules will do.
- Delay in EAD Eligibility for Eligible Asylum Applicants
Any asylum applicant who is eligible for employment authorization now must wait 365 days before being able to submit the application for a work permit. Any individual who filed the application for asylum after March 27, 2020 (who has not yet accrued 150 days on their “asylum clock” by August 24, 2020, and who is therefore unable to file their application for work authorization prior to August 25, 2020) will have to wait 365 days before they can file their application for a work permit.
- Bar on Employment Authorization based on Manner of Entry to the U.S.
The rule excludes asylum applicants from eligibility for employment authorization if they, without good cause, entered or attempted to enter the U.S. at a place other than at a Port of Entry (Entry without inspection). An asylum applicant could qualify for this “good cause” exception. Please talk to an immigration attorney for more information about this.
- Bar on Employment Authorization for Asylum Applicants who fail to Seek Asylum within One Year of their Entry to the U.S.
Asylum applicants who file for asylum beyond one year of their entry to the U.S. will not qualify for employment authorization unless and until an immigration officer or an immigration judge determines that they qualify for an exception to the One Year Filing Deadline rule. This bar would not apply to unaccompanied children, who are entitled to an exception to the One Year Filing Deadline due to their legal incapacity.
- Bar on Employment Authorization for Individuals with certain Criminal Convictions
Certain criminal convictions can render an asylum applicant ineligible for asylum, including having been convicted of an “aggravated felony” or a “serious non-political crime.” DHS’ new rule will apply those same disqualifying circumstances to asylum applicants seeking work authorization, to bar them from obtaining work permits while their applications for asylum are pending. The rule will also bar asylum applicants from obtaining work permits if they have other “public safety” criminal convictions in their past, including: any felony conviction; any offense involving domestic violence or assault; child abuse or neglect; possession or distribution of controlled substances; or driving or operating a motor vehicle under the influence of alcohol or drugs.
There are nuances to this bar so please speak to an immigration attorney about whether this would disqualify you for obtaining work authorization.
- Discretionary Denials of Employment Authorization for Certain Asylum Applicants
DHS may now deny work permit applications to asylum applicants who have certain unresolved criminal charges, even if those charges never result in convictions.
The rule will also have other effects on parole work permits and on applicant caused delays to the asylum clock.
Please click here to see the full text of the rule.
If you are thinking about applying for asylum and getting a work permit through your asylum application, please speak with an Immigration Attorney.