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Recent changes to employment authorization eligibility for asylum seekers

By Ann Fischer

In September, the federal government amended its regulations relating to employment authorization based upon pending asylum applications. The effect of the decision removes regulations put in place during the Trump administration and restores prior procedures and eligibility requirements. 

According to the U.S. Citizenship and Immigration Services (USCIS), the U.S. Department of Homeland Security (DHS) issued its final rule, which is consistent with the vacatur, or setting aside, of the U.S. District Court for the District of Columbia decision in Asylumworks et al. versus Mayorkas et al. This new and final rule was effective on Feb. 7, 2022. The final rule removes certain regulatory text governing asylum applications, interviews, and eligibility for employment authorization based on a pending asylum application, the agencies said.

Some changes include applying for employment authorization 150 days after filing your asylum application, rather than 365 days; and there is no longer a biometric service fee nor will applicants be required to attend a biometric services appointment.

Addition changes to asylum applicant employment authorization as result of the Asylumworks ruling include:

• Eligibility criteria related to certain criminal acts and convictions are no longer applicable.
• If USCIS denies your asylum application, your employment authorization document (EAD) will not automatically terminate on the date of the denial.
• The 30-day processing requirement has been reinstated for initial employment authorization requests based on a pending asylum application.
• Employment authorization decisions for the asylum applicant category is no longer discretionary.
• You may be granted employment authorization based on your pending asylum application even, if you did not file for asylum within one year after you entered the United States.
• You may file to renew your employment authorization if you timely appealed to a U.S. Court of Appeals and that decision remains pending.
• You do not need to answer questions on Form I-765 about whether you lawfully entered the United States through a port of entry.

If you have filed for or have considered filing for asylum, recent changes to federal immigration laws may have affected your asylum employment authorization eligibility.  If you have questions please contact me, Ann Fischer, at (847) 944-9400, ext. 204, or afischer@gardilaw.com. You can also request a free case evaluation by clicking on our button below.

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