New Rules Affecting Work Permits
by Emily Smith, RILA Legal Advocate
One big aspect of our work at RILA is helping our clients apply for their work permits, also known as an Employment Authorization Document (EAD). We even help many people who aren’t our clients apply for their EADs as private attorneys often charge $2000 to fill out the EAD application. For our clients, getting a work permit is such a significant step. We have had many clients cry tears of joy when they receive their EADs, and we have seen many big smiles and received profuse thank you’s. Once they have their EADs they can begin to work legally, which imparts a sense of normalcy and security to their lives in the United States. They can support their families, which gives them dignity. Our clients also receive a Social Security number with their work permit, with which they can file taxes. I had a client tell me once that she was so excited to be able to file her taxes!
Additionally, EADs serve as photo identification for our clients. It is an official US Government identification document and shows they are an asylum seeker. It is very helpful for them beyond just employment. We encourage even our youngest clients, who will not be working, to get an EAD so they can have an ID and get a SSN to be included on their parent’s taxes.
The administration recently issued two new rules that will have a huge impact on our clients and their ability to legally work in the United States.
Under the current rule, an asylum seeker is eligible to submit an EAD application after the asylum application has been pending for 150 days. Then, the EAD application can be adjudicated by USCIS 30 days later, once the asylum application has been pending for 180 days. There are few bars to eligibility under the current rule. We have been able to resolve almost all issues for our clients who have had trouble getting their EAD for one reason or another. Currently our clients generally receive their EADs within a month of us submitting their applications. Sometimes it can take a bit longer, but the majority of our clients receive their EADs within six weeks. Asylum applicants’ EADs are generally valid for two years, and a renewal application can be filed six months before it expires.
In June, the administration issued a new rule removing the 30-day processing provision. This means that USCIS officers are no longer required to adjudicate EAD applications within 30 days. This rule will go into effect on Friday, August 21. We are not sure what the delays will look like for our clients to receive their EADs.
Second, in November the administration released proposed changes to EAD eligibility for asylum seekers. The Final Rule was published last month in the Federal Register, which will take effect next week on August 25. These changes will have a huge impact on our clients and asylum seekers across the country.
Under this new rule, asylum seekers will have to wait 365 days after filing their asylum application before they can submit their EAD applications. Even after waiting a full year, if there is an “applicant-caused delay,” the EAD application can be denied by USCIS. Unfortunately, this part of the rule does apply retroactively to clients who have already been waiting and accruing time towards their 150 days. If they are not at 150 days by August 24, they will have to wait another seven months to apply for their EADs once their asylum application has been pending for 365 days per the new rule. This is extra frustrating to our clients who are right on the cusp and will hit 150 days in the few days after August 24.
There is a one-year filing deadline for asylum seekers, meaning they need to file for asylum within one year of entering the United States. If they do not file within that first year it is not an insurmountable bar to them gaining asylum, but we do need to explain why they did not apply in that time frame. For some clients the reason is that they are struggling with severe PTSD and cannot think about finding legal help, others were never told about the one-year deadline at the border and didn’t know they were supposed to apply within one year. Under the new EAD rule those who do not file their asylum application within one year will not be eligible for an EAD. The situation can be appealed to an adjudicator to determine extraordinary circumstances or changed circumstances, but this must be done before the applicant is eligible for their EAD. (This part of the rule does not apply to unaccompanied minors, those under 18 who cross the border without a parent, as they are not subject to the one-year filing deadline.) Asylum seekers who have their asylum applications filed by August 24, the day before the new rule goes into effect, will not be subject to this part of the new rule. But any clients whose asylum applications we file going forward will face much more difficulty obtaining an EAD.
An asylum seeker who enters the US without inspection (EWI) will not be eligible for an EAD under the new rule. This means those who do not enter at an official port of entry. The overwhelming majority of our clients enter the country EWI. Therefore, this part of the rule will be devastating for our clients. There are some exceptions; if an asylum seeker enters EWI but presents themselves to a DHS official with 48 hours to claim asylum and establish good cause for entering EWI, this part of the rule will not apply. A USCIS officer will determine good cause for entering EWI on a case by case basis and it is not entirely clear what will qualify. Asylum seekers who enter the US by August 24, the day before the new rule goes into effect, will still be eligible for an EAD even if they enter EWI.
Additionally on July 31, USCIS announced that they are adjusting fees for a plethora of immigration forms. Currently an initial EAD application for an asylum seeker is free, and the renewal of an EAD for an asylum seeker costs $410. About half of our clients apply for their EAD renewals with a Fee Waiver, showing they are eligible by attaching their taxes. Many of our clients choose to pay the $410 fee; a number have told us that they want to show the government they can support themselves. USCIS has said that initial and renewal EAD applications for asylum seekers will now cost $550 — per person. And USCIS has eliminated all Fee Waivers for asylum seekers. Therefore, for a family the cost of multiple EADs could be prohibitive to them being able to work. The fee changes will go into effect on October 2.
We are making a push at RILA to get as many asylum applications in as we can by August 24 so that our clients will not be subject to the one-year filing deadline bar. However, these clients will still have to wait 365 days to apply for their EADs. After August 24, we will see a huge drop off in our EAD applications until a few months down the road when our clients hit their 365 days. But we will not have near as many initial applications as we do now. We will continue to renew our clients EADs, as thankfully renewals have not been greatly affected by the new rule. However, in October we can only apply and renew for those who can afford the exorbitant fee.
We ask you to join us in praying for our clients who will be affected by all of these changes.