USCIS Complicates Eligibility Requirements for Asylum Seekers

DHS also proposed changes to reduce incentives for aliens to intentionally delay asylum proceedings in order to extend the period of employment authorization based on the pending asylum application, and to simplify the adjudication process.  More specifically, DHS proposed to modify its regulations in the following areas:

Effective Date

The newly implemented rule applies only to initial and renewal applications for employment authorization under 8 CFR 274a.12(c)(8) and (c)(11) filed on or after the effective date of the final rule, with limited exceptions. 

365 Day Waiting Period to Apply for Employment Authorization Under Category (c)(8)

Asylum applicants must wait 365 calendar days from the date their asylum applications are received by USCIS or the Department of Justice, Executive Office for Immigration Review (DOJ-EOIR) before they may apply for an EAD. USCIS will deny requests for (c)(8) EAD applications if there are any unresolved applicant-caused delays on the date of the EAD adjudication.

No Issuance of Recommended Approvals for a Grant of Affirmative Asylum

USCIS will no longer issue recommended approvals for asylum.  More specifically, these are typically cases where an asylum officer has made a preliminary determination to grant asylum but has not yet received the results of the mandatory, confidential investigation of the alien’s identity and required background and security checks.

New Eligibility for Employment Authorization

Under the newly implemented rule, the EAD eligibility requirements have been amended to exclude aliens:

(1)   who, absent good cause, entered or attempted to enter the United States at a place and time other than lawfully through a U.S. port of entry from eligibility for (c)(8) employment authorization;

(2)  who have failed to file for asylum within one year of their last entry, unless and until an asylum officer or immigration judge (IJ) determines that an exception to the statutory requirement to file for asylum within one year applies; and

(3)  whose asylum applications have been denied by an asylum officer or an IJ during the 365-day waiting period or before the request for initial employment authorization has been adjudicated.

An Alien May Not Be Eligible For EAD Due To A Criminal Conviction

Aliens with criminal convictions may no longer be eligible for employment authorization given that DHS further proposed to exclude from eligibility aliens who have:

(1)    been convicted of any aggravated felony as defined under section 101(a)(43) of the INA, 8 U.S.C. 1101(a)(43);

(2)   been convicted of any felony in the United States or serious non-political crime outside the United States; or

(3)   been convicted in the United States of certain public safety offenses 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, regardless of how the offense is classified by the state or local jurisdiction.

Notwithstanding the aforementioned, DHS proposed that it would consider, on a case-by-case basis, whether aliens who have been convicted of any non-political foreign criminal offense, or have unresolved arrests or pending charges for any non-political foreign criminal offenses, warrant a favorable exercise of discretion.††

An Alien Who Entered the United States Illegally May Not Be Eligible for EAD

Any alien who entered or attempted to enter the United States at a place and time other than lawfully through a U.S. port of entry ineligible to receive a (c)(8) EAD, with limited exceptions of when an alien demonstrates that he or she:

(1)   presented himself or herself without delay, but not later than 48 hours after the entry or attempted entry, to the Secretary of Homeland Security (or his or her delegate);

(2)  indicated to a DHS agent or officer an intent to apply for asylum or expressed a fear of persecution or torture; and

(3)  otherwise had good cause for the illegal entry or attempted entry.

EAD Will Terminate If An USCIS Asylum Officer Denies Your Request For Asylum

The termination of (c)(8) employment authorization will become effective on the date when a USCIS asylum officer denies an alien’s request for asylum.

EAD Eligibility After USCIS Refers Your Case to DOJ-EOIR or Immigration Court

When USCIS refers a case to DOJ-EOIR, after determining that the alien is not eligible for asylum, employment authorization would continue, and the alien would be eligible to continue applying for EAD renewals, if needed, until an Immigration Judge renders a decision on the asylum application. However, If an Immigration Judge denies the asylum application, the alien’s employment authorization would terminate 30 days after denial, unless the alien filed a timely appeal with the Board of Immigration Appeals (BIA).

Renewal of employment authorization would be available to the alien during the pendency of the appeal to the BIA. DHS, however, would prohibit employment authorization during the Federal court appeal process, unless the Federal court remanded the asylum case to the BIA. In such cases, the alien could reapply for a (c)(8) EAD once the case was pending before the BIA again.

Applicant-Caused Delays May Result in the Denial of Your Employment Authorization Application

Amending an asylum application, requesting an extension to submit additional evidence beyond a time that allows for its meaningful consideration prior to the interview, or failing to appear at a USCIS Asylum office to receive a decision as designated, would constitute an applicant-caused delay, which, if not resolved by the date the application for employment authorization is adjudicated, would result in the denial of that employment authorization application.

EAD Validity Period Will Not Exceed Increments of 2 Years

The validity period of (c)(8) employment authorization is discretionary and any (c)(8) EAD validity period, whether initial or renewal, would not exceed increments of 2 years. DHS proposed to allow USCIS to set shorter validity periods for initial and renewal (c)(8) EADs.

EAD Eligibility for Alien Who Have Been Paroled After Being Found to Have a Credible or Reasonable Fear of Persecution or Torture

Aliens who have been paroled into the United States pursuant to section 212(d)(5) of the INA, 8 U.S.C. 1182(d)(5), after establishing a credible fear or reasonable fear of persecution or torture under 8 CFR 208.30, may not request a discretionary grant of employment authorization under 8 CFR 274a.12(c)(11), but may still apply for a (c)(8) EAD, if otherwise eligible.

†  See section 102 of the Controlled Substances Act (21 U.S.C. 802).

†† See, e.g., INA sec. 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F); INA sec. 212(a)(2)(A)(i)(I), 8 U.S.C. 1182(a)(2)(A)(i)(I); INA sec. 212(a)(2)(B), 8 U.S.C. 1182(a)(2)(B).