For many years, anyone who applied for asylum in the United States qualified for a work permit (an employment authorization document or EAD) immediately. However, that is no longer the case.
Efforts to combat frivolously filed asylum applications led to a 1994 overhaul of the immigration laws, which now make it quite difficult for someone fleeing persecution to obtain the right to work in the United States.
Below are the situations in which an asylum applicant will become eligible to apply for an EAD.
If you are granted asylum, you will become instantly eligible to submit an application for a U.S. work permit. However, this may not happen for weeks, months, or even years. (For more information on the asylum application process, see How to Get Asylum In The U.S.)
After you first submit your application for asylum (assuming you apply affirmatively, rather than after being placed in removal proceedings), your case will be heard by the Asylum Office within a matter of weeks. If you are granted asylum at that time, great - but many deserving asylum applicants are not granted asylum then.
Instead, assuming the applicant has no other right to be in the United States, the case gets referred to the immigration court system (for removal proceedings). The applicant is scheduled for a master calendar hearing a few weeks into the future. But that is only to set another date, even further into the future, for the actual hearing. And if that hearing doesn’t finish on the day it starts, it will be continued to another date, many more weeks or months into the future.
At last, the immigration judge (IJ) will make a decision. If it’s a grant of asylum, you can apply for a work permit. But the IJ may be unconvinced, and deny asylum. Again, this happens to many perfectly deserving asylum applicants. You would then need to appeal to the Board of Immigration Appeals, which all too often accepts the immigration judge’s decision. More months or years go by.
You can then appeal to the federal court in your circuit, and after that to the Supreme Court of the United States. But by this time, several years will most likely have gone by – all without a right to work in the United States.
People who apply for asylum may be able to obtain work authorization if 150 days have passed after they filed their application, and there has been no decision on their case from USCIS or the IJ. This comes from Section 208(d)(2) of the Immigration and Nationality Act (I.N.A.) or 8 U.S.C.A. § 1158(d)(2); 8 C.F.R. § 208.7(a). After you request the EAD, USCIS has another 30 days in which to process the application (your Form I-765).
A simultaneous but separate legal change requires immigration judges (IJs) to complete their decision on an asylum application within 180 days. This simultaneous clock confuses even the immigration officers at times.
The reality is that these scheduling limitations are far less beneficial to the applicant than they sound. The asylum officer (AO) or IJ can stop counting the days toward 150 (or 180) if either of them decides to “stop the clock.” They have the power to do that any time there’s a delay in the process that they decide was requested or caused by the applicant.
That’s a problem, because whether the asylum applicant “caused” a delay is open to interpretation. Some cases are obvious, such as if you fail to show up for your fingerprinting appointment or hearing, or to bring a competent interpreter to your Asylum Office interview. Those are all delays that you caused. But is requesting more time in which to submit documents a delay that you caused, even though you didn’t anticipate in advance that the particular issue would come up? Some IJs have stopped the clock for this. What about if, at your master calendar hearing, you decline to take the first open date for a full hearing, perhaps because you or your lawyer had a time conflict? Many IJs have stopped the EAD clock for that, too.
Immigration lawyers and advocates have observed numerous cases where either the AO or, more often, the IJ improperly stops the clock – often without informing the applicant. And they sometimes forget or refuse to restart the clock, as well. Even finding out whether the clock has been stopped in your case or not can be difficult, because the tracking system – called the Refugee Asylum and Parole System, or RAPS -- is not always kept up to date.
Applying for asylum is complex and difficult, and best done with a lawyer’s help. The lawyer can also help monitor the progress of the EAD clock in your case, and remind the appropriate party to keep the clock running when it should.
Whatever you do, don’t simply count to 150 days and then submit a request for a work permit. You may discover that you’ve wasted your money when you receive a denial notice.