Update on EADs for Asylum Seekers

In order to file an I-765 EAD application under the (c)(8) category, an individual needs the following:

• An asylum application filed with the Asylum Office or immigration court at least 150 days before submitting the I-765.
  • The asylum application cannot have been negatively decided within 180 days of filing.
• There must be no applicant caused delays that have stopped the asylum clock (see History above).
• A fling fee is NOT required for the first (c)(8) EAD, nor a biometrics fee.

It no longer matters where and how you entered the U.S., if the asylum application was filed within the one-year deadline, or if there were criminal issues (except for aggravated felonies). USCIS must now adjudicate an initial (c)(8) EAD request within 30 days and the decision is not discretionary. USCIS has created a webpage to address questions after the AsylumWorks decision.

The I-765 form was recently reissued by USCIS dated 07/26/2022. This new version of the form removed the questions about how the applicant entered the U.S. because they are no longer relevant as EWI is no longer a bar to employment authorization for asylum seekers. The I-765 does still include question 30, specifically for the (c)(8) eligibility category, which asks about criminal arrests, charges, or convictions in any country. After question 30, the form says to refer to the instructions about what documentation to submit if the answer is “yes.” Nevertheless,

®he now-vacated Asylum EAD Rule prevented asylum applicants who were convicted of certain criminal offenses, convicted of a particularly serious crime, or committed a serious non-political crime from receiving employment authorization. However, because the court vacated the Asylum EAD Rule, only aggravated felony convictions will make you ineligible for employment authorization based on your pending asylum application.

Question 30 is extremely broad and read with the statement above, it seems like USCIS might require, if there have been arrests, charges, or convictions, that the applicant prove they don’t have an aggravated felony.

Practice Tip: As a practitioner, you may be hesitant to submit evidence of arrests, charges, or convictions to USCIS because, although the decision to grant a (c)(8) EAD is not discretionary, many other applications are. The instructions that apply to question 30a for (c)(8) applicants require a lot of extremely specific documentation that can be problematic to obtain. It may be possible to mark question 30a as “yes” and explain in the additional information section, part 6, that the applicant does not have an aggravated felony conviction and per the guidance additional documentation is not required. However, it is important to be prepared for USCIS to send a Request for Evidence (RFE) for documentation, at least to show the disposition of the criminal issue. This will be needed for an adjustment application so it could be a good idea to work on getting the documentation now.

Despite the language of 8 CFR 208.7(a)(1) reverting to the rule before August 2020, including the requirement that USCIS adjudicate (c)(8) EAD applications within 30 days, there are many reports of this taking significantly longer than that. The initial preliminary injunction in Casa de Maryland Inc. et. al. v. Chad Wolf et. al. included the Removal of 30-day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications Rule, meaning that USCIS was required to adjudicate (c)(8) I-765 applications from ASAP and CASA members within 30 days. USCIS states on its website that “the decision in Asylumworks means that, although the CASA preliminary injunction has not been formally vacated, CASA and ASAP members no longer need to provide evidence of CASA or ASAP membership with their initial C8 EAD applications.” However, CILA has received anecdotal reports that those applications that include evidence of CASA or ASAP membership are getting adjudicated faster, relatively speaking.

USCIS will begin the adjudication process. If they have any questions or require further information, an RFE will be sent. USCIS has warned that it is possible to receive an RFE or Notice of Intent to Deny (NOID) based on the vacated asylum rules. They ask that, even though the applicant no longer needs to give them certain information required by those rules, practitioners still respond to the RFEs and NOIDs:

If the items in your RFE or NOID pertain only to requirements in the Asylum EAD Rule, please send a response to the RFE or NOID acknowledging you received the RFE or NOID. You do not need to provide substantive information related to the items in the RFE or NOID that pertain to the Asylum EAD Rule.

Congratulations! The EAD should be valid for 2 years. If for some reason the asylum application is denied, the EAD will be valid either though its expiration date or 60 days after the decision, whichever is longer. If the asylum application is approved, asylees are automatically eligible to work, even without an EAD.[1] However, many employers are not aware of this rule and an EAD serves as a handy form of identification, so most asylees use their EAD and apply to renew it when the time comes. Also, despite the “last in, first out” policy the Asylum Office has been employing, most unaccompanied children do not get an interview soon after filing. Rather they enter the backlog queue and can wait years for an asylum interview. So, it is likely that the EAD will need to be renewed at least once while the asylum application is pending.

[1] See INA § 208(c)(1)(B). The Department of Justice has information for employers and asylees as to what documentation is necessary to show that they are authorized to work incident to status.

It was USCIS policy that if an EAD holder submitted an application to renew that EAD, the expiration date of their original EAD was automatically extended for 180 days. The I-797C receipt notice the applicant received for the EAD renewal application would contain language confirming this extension that could be used as proof to employers and other relevant parties. However, on May 4, 2022 a temporary final rule went into effect increasing that automatic extension to 540 days (the original 180 days plus 360 additional days). This extension does not apply to everyone with an EAD. It is only available to certain eligibility categories, which include (c)(8), and the person must have submitted an I-765 renewal application. An initial (c)(8) EAD will not be automatically extended without a properly submitted renewal application.[1] USCIS created this temporary final rule in recognition that their I-765 adjudications were backlogged to the point where 180 days was not enough time and people who should have been employment authorized were losing jobs and the ability to support their families. The proof that the EAD has been extended will be in the I-797C receipt notice for the renewal application.

[1] There was initially some confusion as to whether an I-765 for renewal of the EAD had to be filed, or if the extension applied to everyone. The updated regulation, as published in the Federal Register and at ecfr.gov, is clear on this point:

The authorized extension period stated in paragraph (d)(1) of this section, 8 CFR 274a.2(b)(1)(vii), and referred to in paragraphs (d)(3) and (4) of this section is increased to up to 540 days for all eligible classes of aliens as described in paragraph (d)(1) who properly filed their renewal application on or before October 26, 2023. 8 CFR 274a.13(d)(5) (emphasis added).