Update on EADs for Asylum Seekers

The requirements for asylum applicants to receive an employment authorization document (EAD) have been in flux over the past several years. Below is an update covering a brief history of the recent changes and the current state of the regulations and availability of EADs based on a pending asylum application.

Prior to June 2020, individuals with pending asylum applications (either before the Asylum Office or the immigration court) could file an application for employment authorization 150 days after the application had been filed, per 8 CFR 208.7(a)(1). USCIS then had 30 days to adjudicate the application, and an approval could only be issued 180 days after the asylum application was submitted. One exception to the timing on this rule was applicant caused delays, such as missing a biometrics appointment or interview, or asking for a continuance or administrative closure in immigration court. If one of these delays occurred, the “clock” counting to the 150 days was paused until the delay was resolved, i.e. the biometrics were taken, the interview was rescheduled for good cause, or until the next hearing in immigration court.

However, in June 2020 the Trump administration issued final rules changing the requirements for asylum applicant employment authorization documents (EADs), also known as (c)(8) or c8 EADs based on 8 CFR 274a.12(c)(8). These regulations took effect August 21, 2020 and were soon the subject of litigation. The first case, Casa de Maryland, Inc., et al. v. Wolf, et al., resulted in an injunction that prohibited USCIS from using several sections of these new final rules[1] when adjudicating EAD applications from members of CASA or ASAP[2], the two plaintiff nonprofit organizations in the lawsuit. In February 2022, the judge in the second case, AsylumWorks et al. v. Wolf et al., issued a permanent injunction vacating the Timeline Repeal Rule and EAD Bar Rule so they have no force or effect for any asylum applicant applying for an EAD.

As a result, the regulations revert to those eligibility rules that were in effect before August 2020. This applies to all (c)(8) EAD applications pending with USCIS on Feb. 8, 2022 and any received thereafter.

[1] The court enjoined those rules for which the plaintiffs had standing, which were the following:

  • The Timeline Repeal Rule, 85 Fed. Reg. at 37,545 (printing parts of the regulations to be codified at 8 C.F.R. § 208.7(a)(1));
  • The 365-day waiting period, 85 Fed. Reg. at 38,626-28 (referenced throughout and as codified at 8 C.F.R. § 208.3(c)(3); § 208.7(a)(1)(ii), (a)(1)(iii)(E), and (b)(1)(i); and 8 C.F.R. § 274a.12(c)(8));
  • Removal of “deemed-complete” rule, 85 Fed. Reg. at 38,626 (codified at 8 C.F.R. § 208.3);
  • The discretionary review rule, providing that agency is no longer required to issue EADs to eligible asylees, 85 Fed. Reg. at 38,628 (changes reflected at 8 C.F.R. § 274a.13(a)(1));
  • The one-year filing bar, 85 Fed. Reg. at 38,626 (codified at 8 C.F.R. § 208.7(a)(1)(iii)(F)); and
  • The rule requiring submission of biometric information as part of EAD applications, 85 Fed. Reg. at 38,626 (codified at 8 C.F.R. §§ 208.7(a)(1)(i) and (a)(1)(iv)(E), 208.10).

See the Preliminary Injunction Memorandum Opinion in Casa de Maryland.

[2] To benefit from the Casa de Maryland litigation, an individual is required to be a member of either CASA or the Asylum Seeker Advocacy Project (ASAP). To become a member of CASA one can either apply for a local membership if they live in Maryland, Virginia, or Pennsylvania, or a sustaining member, which “shares CASA’s values, envisions a future where we can achieve a full human rights for all and is convinced that united and organized we can create a more just society by building power in our working class and immigrant communities.” To become a member of ASAP, an applicant needs to “(1) have sought or are seeking asylum in the United States, (2) are 14 years or older, and (3) believe in ASAP’s mission.” ASAP membership is free, CASA local membership is $35, but there is no readily available information as to the fee for the sustaining CASA member.