National Membership
Versión en Español aquí.
The Rule changes to employment authorizations based on pending asylum applications are roughly divided into five categories:
- Changes Related to the “Asylum EAD clock”
- Changes Related to Processing Times
- Changes Related to Individual Eligibility
- Changes Related to Standards for Adjudication and
- Changes Related to EAD Renewals and Termination
Definitions
Employment Authorization Document (EAD): a work permit card issued by the government to certain eligible people.
“Asylum EAD clock”: The asylum EAD clock tracks how many days have elapsed since an asylum applicant filed a complete asylum application (form I-589) with the asylum office or the immigration court. It can be stopped and started depending on what happens in the course of the application period. It exists for two reasons: 1) Because asylum seekers cannot apply for a EAD until a certain amount of time has passed since they filed their asylum application and 2) Because the government cannot grant a EAD until a certain amount of time has passed since the asylum seeker filed their asylum application.
I-765: The form required to apply for an EAD (i.e. a work permit)
| Old Rule | New Rule | Who or what would the New Rule apply to? | Will this New Rule apply to CASA members? |
|---|---|---|---|
CHANGES RELATED TO THE “ASYLUM EAD CLOCK” |
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| Asylum seekers must have 150 days on their “Asylum EAD clock” to file an Initial EAD Application: Asylum seekers are eligible to apply for an Initial EAD (I-765) 150 days after filing a “complete” asylum application (I-589) and their Asylum EAD clock has reached 150 days. | Asylees must wait 365 days to file Initial EAD (I-765): The New Rule eliminated the EAD clock and instituted a new timeline. Asylees are eligible to apply for an Initial EAD (I-765) days after the government receives an asylum application | All initial EAD applications (I-765) received on August 25, 2020 or after |
NO! The court struck down this rule for CASA and ASAP members.
The Old Rule will apply to CASA and ASAP members that submit
proof of membership with their EAD application (I-765). The New Rule will apply to everyone else. |
| Ability To Apply For EAD Earlier: if an applicant receives a “notice of recommend approval”—indicating the asylee is likely to secure an ultimate grant of asylum—the applicant can file an EAD application (I-765) before 150 days have elapsed. | Elimination of Ability To Apply For EAD Earlier: This exception was eliminated. | All EAD applications (I-765) received on August 25, 2020 or after. | Yes. The court did not strike down this rule for CASA or ASAP members, or anyone else. The New Rule applies to everyone |
| Applicant-caused delays toll or re-start the “Asylum EAD” clock: Applicant-caused delays with the asylum application (I-589) will pause the “asylum EAD clock” or in some cases re-start the clock. | Automatic EAD Denial for “Applicant-caused” Delays: Any “applicant-caused” delays with the asylum application (I-589) that have not been resolved when the initial application for an EAD (I-765) is filed will result in an automatic EAD denial. Applicant-caused delays include, but are not limited to: failure to appear at an asylum interview, failure to appear at asylum biometrics appointment, and more. | All Initial EAD applications (I-765) received on August 25, 2020 or after | YES! The New Rule--Automatic EAD Denial for “Applicant-caused” Delays-- applies to everyone. The court did not strike down this rule for CASA or ASAP members. |
CHANGES RELATED TO PROCESSING TIMES |
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| 30 day “Deemed Complete”: If the government has not mailed the asylum application (I-589) back to the applicant within 30 days, USCIS will deem the asylum application “complete.” USCIS may grant an EAD 180 days after a “complete” application has been filed. | Elimination of Automatically “Deemed Complete” Rule: USCIS eliminated the 30 day “deemed complete” rule and did not replace it with a new deadline. The government may reject and return an asylum application (I-589) at any time after it is filed. | All asylum applications (I-589) received on August 25, 2020 or after. |
NO!The court struck down this rule for CASA and ASAP members.
The Old Rule will apply to CASA and ASAP members that submit
proof of membership with their EAD application (I-765). The New Rule will apply to everyone else, although the government has indicated that it has been reviewing most asylum applications within 30 days such that there is no opportunity for any application to be “deemed complete” on the basis that the government has not rejected it within 30 days of filing. |
| 30 day Processing Deadline:The government is required to grant or deny an initial EAD application (I-765)within 30 days | Elimination of Processing Deadline: There is no deadline to process initial EAD applications (I-765). USCIS may wait an indefinite amount of time to process the EAD application. | All initial EAD applications filed on or after August 21, 2020 |
NO! The court struck down this rule for CASA and ASAP members.
The Old Rule will apply to CASA and ASAP members that submit
proof of membership with their EAD application (I-765). The New Rule will apply to everyone else. |
CHANGES RELATED TO INDIVIDUAL ELIGIBILITY |
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| No Biometrics required for EAD Application: Biometrics are required only for the asylum application (I-589). There is no requirement to submit additional biometrics for the EAD application (I-765). | Biometrics, which carry an $85 fee, are required for all EAD Applications: All EAD applications (I-765), including initial and renewal applications,must include an $85 fee for biometrics. To receive an EAD, applicants must subsequently appear for a scheduled biometrics services appointment. | All EAD applications (I-765) received on August 25, 2020 or after |
NO!The court struck down this rule for CASA and ASAP members.
The Old Rule
will apply to CASA and ASAP members that submit proof of membership
with their EAD application (I-765).
The New Rule will apply to everyone else. |
| Manner of Entry into US does not affect eligibility for EAD: The manner that a person entered the U.S. will not disqualify them from an EAD. People that cross into the U.S. without inspection can apply for an EAD. | To qualify for a EAD, applicants must have entered the U.S. through a port of entry: Individuals who enter the U.S. on or after August 25, 2020 anywhere other than a port of entry will be denied an EAD unless he or she can establish one narrow exception. | All applicants who entered the US on or after August 25, 2020 | Yes. The court did not strike down this rule for CASA or ASAP members, or anyone else. The New Rule applies to everyone. |
| Asylum application may be filed at any time to qualify for a EAD: USCIS will not consider if an applicant timely filed his or her asylum application (I-589) when adjudicating the applicant’s associated EAD application (I-765) | To qualify for an EAD, the asylum application (I-589) must be filed within a year of entering the U.S. (or establish exemption from this rule): If the applicant filed his or her asylum application on or after August 25, 2020 and filed the application after the one-year filing deadline, the EAD application (I-765) will be denied unless and until an asylum officer or immigration judge determines that the applicant meets an exception for late filing OR unless the applicant was an unaccompanied child on the date the asylum application was first filed. | All applicants who filed their application for asylum (I-589) on or after August 25, 2020 |
NO! The court struck down this rule for CASA and ASAP members.
The Old Rule will apply to CASA and ASAP members that submit proof of
membership with their EAD application (I-765). The New Rule will apply to everyone else (except for unaccompanied children and applicants that establish exemption from rule). |
| Applicants with aggravated felony convictions will be denied a EAD: A conviction for an aggravated felony will disqualify an individual from receiving a EAD. There are no other “criminal” disqualifiers. | Additional criminal disqualifiers:The new rules create additional, broader criminal disqualifiers, including but not limited to: anyone who has committed offenses involving domestic violence or assault; child abuse or neglect; possession or distribution of controlled substances, or DUI | This rule has been enjoined by different court in the case Pangea Legal Services v. DHS. |
A different court enjoined this rule in the case Pangea Legal Services
v. DHS. As a result of that case, the Old Rule will apply to everyone. If the injunction in Pangea Legal Services v. DHS is lifted, the New Rule will apply to everyone. The court did not strike down this rule for CASA or ASAP members, or anyone else. |
CHANGES RELATED TO STANDARDS FOR ADJUDICATION |
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| USCIS will not consider discretionary factors: if the applicant meets all the criteria for an EAD, USCIS will grant the EAD. | USCIS may deny an EAD on discretion: Even if an applicant meets all the requirements, USCIS may nevertheless deny an EAD application (I-765) on discretion alone. | All EAD applications (I-765) received on August 25, 2020 or after |
NO!The court struck down this rule for CASA and ASAP members.
The Old Rule will apply to CASA and ASAP members that submit
proof of membership with their EAD application (I-765). The New Rule will apply to everyone else (except for unaccompanied children and applicants that establish exemption from rule). |
CHANGES RELATED TO EAD RENEWALS AND TERMINATION |
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| EAD is Valid until the Listed Date of Expiration |
EAD can be automatically terminated before the listed date of
expiration: The EAD will be automatically terminated if:a) the asylum
officer denies the asylum application, unless it is referred to the
immigration court
b) thirty days after an immigration judge denies the asylum application, unless timely appealed to the Board of Immigration Appeals, or c) the Board of Immigration Appeals affirms or upholds a denial |
All EAD applications (I-765) received on August 25, 2020 or after | Yes. The court did not strike down this rule for CASA or ASAP members, or anyone else. The New Rule applies to everyone |
| Asylum applicant remains eligible for EAD during period of judicial review: If an applicant’s asylum case is appealed to a federal court, the applicant remains eligible for an initial EAD and renewal of EAD | EADs prohibited during any period of judicial review: EAD will be automatically terminated if an asylum case appealed to any federal court. Asylum applicants cannot receive an EAD unless and until the federal court remands their case to the Board of Immigration Appeals. | All EADs. |
Yes. The court did not strike down this rule for CASA or ASAP members, or anyone else.
The New Rule applies to everyone |
