Final Rule Changes Eligibility for Employment Authorization Document (EAD) for Individuals with Pending Asylum Applications

In a previous article (Final Rule Changes Processing Time for Initial Employment Authorization Document (EAD) for Asylum Applicants), we advised that on June 22, 2020, Department of Homeland Security (DHS) issued a final rule that will take effect on August 21, 2020, eliminating the 30-day processing period for initial asylum-pending EADs.

On June 26, 2020, Department of Homeland Security (DHS) issued a second final rule that will make it much more difficult for individuals with pending asylum applications to obtain an Employment Authorization Document (EAD).

When will the final rule go into effect?
The new rule will go into effect on August 25, 2020.

What are some of the key changes of this final rule?

1. Increase the waiting time from 150 days to 365 days for an asylum applicant to be eligible to apply for an initial EAD.Note: This will apply to any asylum seeker who has not accrued 150 days from the receipt of their application before August 25. The new rule will therefore affect anyone whose asylum application was received on or after March 28, 2020, which is 150 days before the effective date of the new rule.
2. Prevent anyone who enters without inspection after the August 25, 2020 effective date from receiving an asylum-pending EAD.Note: This will not apply to renewals of EADs for individuals who entered without inspection before August 25, 2020, with limited exceptions.
3. Prevent asylum seekers who file more than one year after entering the U.S. from obtaining an asylum-pending EAD until an adjudicator finds a one-year filing deadline exception.Note: This change will affect even those in valid status who have a clear extraordinary or changed circumstances exception to the one-year deadline.
4. Denial of asylum-pending EADs for “unresolved applicant delays.”Note: These delays are quite broad and can include: (1) a request to supplement an asylum application if “unresolved” on the date the EAD application is adjudicated; (2) an applicant’s failure to appear to receive and acknowledge receipt of the decision following an asylum interview and (3) submitting additional documentary evidence fewer than 14 calendar days before the asylum interview or a request for an extension to submit additional evidence.
5. Prevent asylum seekers with certain criminal convictions (aggravated felonies and certain lesser convictions) from obtaining an asylum-pending EAD.Note: This applies to particularly serious crimes and serious non-political crimes where the conviction or offense occurred on or after August 25, 2020. The aggravated felony bar applies to any conviction regardless of the conviction date. 
6. Allow USCIS to limit validity periods of EADs.
7. Automatically terminate EADs following asylum office denials; and terminate EADs 30 days after immigration judge denials, unless the case is appealed to the Board of Immigration Appeals.
8. Prohibit EAD eligibility for individuals paroled into the United States following credible/reasonable fear interviews.
9. Prohibit EAD eligibility for individuals with pending federal court petitions for review.Note: This final rule will not apply to EAD applications pending on or before August 25, 2020.

What action should you take?

If you will be affected by these rule changes, you should file your EAD application before the new rule takes effect on August 25, 2020, and if possible before August 21,2020, to take advantage of the 30-day processing time requirement.

If you have any questions about your asylum based EAD or any other immigration matter, contact our attorneys at the Law Offices of Azita M. Mojarad, P.C. Our experienced immigration attorneys can address your concerns and advise you of the proper course of action.