Changes to Employment Authorization Requirements for Asylum Seekers

Last month, the Trump Administration issued two new rules that would further restrict eligibility criteria for asylum seekers requesting employment authorization.  The first rule issued on June 19, 2020, “Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications,” will take effect on August 21, 2020.  The final rule can be found here.  The second rule, “Asylum Application, Interview, and Employment Authorization for Applicants,” issued on June 26, 2020, will take effect on August 25, 2020 and can be found here.

Both rules will make it significantly harder for asylum seekers to obtain employment authorization in the United States, which has been a goal of the Trump Administration for some time.  While asylum seekers will still be eligible for employment authorization, many changes will take place in the process.

First, the new rules mandate that an asylum applicant must wait 365 days after filing an asylum application before applying for employment authorization.  This is a significant change from the old rules, which allowed asylum applicants to wait 150 days to apply for employment authorization and another 30 days for adjudication of the application.

Moreover, under the new rules, after an application for employment authorization is submitted, a United States Citizenship and Immigration Services (USCIS) Officer will determine whether there is an unresolved “applicant-caused delay” when the application was filed and whether the application should be denied on that basis.

Examples of “applicant-caused delay” include: “amending an asylum application that causes a delay in adjudication; an unexcused failure to appear at an asylum interview or decision pick-up; failure to appear at a biometrics appointment; not filing supplemental documentation to the asylum office within 14 days of an interview, a request to transfer asylum offices or to reschedule an asylum interview, a request to provide additional evidence, or a failure to provide an interpreter.”

The new regulations also limit validity of an employment authorization document to a maximum of two years and prevent asylum seekers from receiving employment authorization if they attempt to enter the United States without inspection on or after August 25, 2020 (subject to certain exceptions).

The effects of these new rules will no doubt cause devastating consequences for asylum seekers who will now have to wait more time before obtaining employment authorization.  The additional restrictions also make it easier for USCIS to deny employment authorization applications on many grounds.  While unfortunate, these new regulations are not surprising given this administration’s constant efforts to eliminate immigration to the United States.