Let’s say I give you a million dollars (which I can easily do, given my lucrative earnings as an asylum lawyer). Let’s also say I put that money on the moon. Even though its yours, you can’t get it, and so it won’t do you any good. That’s basically what the Trump Administration is trying to do with asylum.
Under U.S. law, non-citizens in our country have a right to seek asylum. But that right is meaningless unless applicants have the means to live here during the lengthy asylum process. On August 25, 2020, the Trump Administration plans to implement a new regulation, which denies Employment Authorization Documents (“EADs”) to some asylum applicants and delays the issuance of EADs to everyone else. The pretextual (lawyer-speak for bullshit) reason for the new rule is to prevent fraud. The real reason is to deter people from seeking asylum in the United States. Here, we’ll discuss the major provisions in this new regulation.
The first major change is the waiting period for an EAD. Until now, the regulations allowed asylum seekers to file their EAD application (form I-765) 150 days after their asylum application (form I-589) was received. Processing the I-765 usually took a few months, and so most asylum seekers would have their EAD card in hand within seven or eight months of filing for asylum. Under the new rule, asylum applicants must wait 365 days before filing for their EAD, and then wait a few more months for processing. This means that most applicants probably won’t have their EAD until at least 14 months after submitting the I-589. This new rule seems to apply to everyone who files for an EAD on or after August 25, 2020, even people who filed for asylum before that date. So if you are eligible for the initial EAD prior to August 25, you should file before that date. Otherwise, you will face an additional six months (or more) of delay.
The second major change is that people who file for asylum on or after August 25, 2020, and whose asylum application was not filed within one year of arriving in the United States, will be ineligible for an EAD “unless and until the asylum officer or immigration judge determines that the applicant meets an exception for late filing” or unless the applicant is an unaccompanied child. Sine the one-year bar will usually not be adjudicated until the asylum case is adjudicated, this new rule effectively means that people who do not file for asylum within one year of arriving in the country will not get an EAD. Again, this provision applies only to people who file for asylum on or after August 25, 2020. Also, even if you clearly meet an exception to the one-year rule, you would not be eligible for an EAD if you were in the U.S. for more than one year before filing for asylum (examples of people who are ineligible for an EAD include those who have maintained lawful status during their entire stay in the U.S. before filing, and people who decide to seek asylum after circumstances in the home country changed, causing them to fear return).
Third, applicants who “entered or attempted to enter the United States at a place and time other than lawfully through a U.S. port of entry on or after August 25, 2020” are not eligible for an EAD. There are rare exceptions enumerated in the rule, but for the most part, people who enter the U.S. unlawfully and file for asylum will be barred from obtaining an EAD.
Fourth, it seems that people who move before they get an EAD are considered to have “delayed” their case if the move transfers their case to a different Asylum Office. They thus become ineligible for an EAD (“Delay” includes “A request to transfer a case to a new asylum office or interview location, including when the transfer is based on a new address”). For this reason, you should try not to move out of your Asylum Office’s jurisdiction from the time of filing until you get the EAD (you can see your office’s jurisdiction here).
Also, previously, asylum seekers who were paroled into the United States after “passing” a credible fear interview were eligible for an EAD based on category c-11. The new rule eliminates this basis of EAD eligibility, though such parolees could still apply for asylum and then file for an EAD after the 365-day waiting period.
Other provisions of the new rule basically codify existing practice. For instance, people who cause delay in their asylum cases and people who have criminal issues will likely be denied an EAD.
The new EAD rules are particularly damaging when considered along side another proposed rule, which would deny asylum to people who work unlawfully and fail to pay taxes. The combined effect of these new regulations will be that asylum seekers are either forced to work illegally, thus jeopardizing their asylum claims, or they are forced to find some way of surviving in the U.S. for 1+ years without the ability to earn money.
On the positive side (and these days, we sorely need positive news), people who have EADs can continue to renew them in two-year increments, even if their asylum case is referred to Immigration Court or if they lose their case in court and appeal to the Board of Immigration Appeals.
Given these changes, if you are planning to file for asylum and you entered unlawfully or have a one-year bar issue, you should file before August 25, 2020, when these rules are scheduled to go into effect. Also, if you are planning to seek asylum, you should file your application within one year of arriving in the United States, even if you would qualify for an exception to the one-year bar (again, to be clear, you can still overcome the one-year bar and receive asylum, but you will not receive an EAD while you are waiting for a decision in your case).
One remaining question is whether these new regulations might be blocked by a federal court. I suspect that there will be a court challenge to the rules. If such a challenge succeeds, my guess is that it will succeed on procedural grounds–in other words, that the Trump Administration failed to adequately justify the new rule (this is the basic reason that the Administration’s efforts to end DACA failed). Asylum seekers have no right to an EAD. See INA § 208(d)(2). However, given that it is impossible to obtain asylum unless you have the ability to survive in this country during the pendency of your case, there may be a basis to challenge this new rule. Let’s hope so.