Asylum Clock

Many asylum applicants have experienced problems with the so-called “asylum clock”. The asylum clock is a clock that measures the 150 days after an applicant files for asylum before the applicant can apply for an employment authorization document (EAD, also known as work permit, which gives them the right to legally work in the United States).

Under the current rules, a person who applies for asylum in the United States cannot apply for employment authorization at the same time. The asylum clock starts once the I-589, application for asylum, has been reviewed and found properly filed and complete by the service center or the asylum office. After that, asylum applicants must wait at least 150 days before they can apply for employment authorization with the United States Citizenship and Immigration Services (USCIS). USCIS then has 30 days to process work permit applications. Thus, a total of at least 180 days must elapse before an asylum applicant can receive his or her work permit.

The asylum clock can be stopped by asylum officers and immigration judges if it is determined that the applicant caused a delay in his or her case, for example missed his or her fingerprinting appointment without establishing a good cause, or asked to reschedule an interview or hearing without an exceptional circumstance. Most common problems arise when the asylum clock is stopped improperly (when the applicant has not caused any delays in the case) or indefinitely (when the clock is not restarted as it should). As a result, many asylum applicants end up waiting for much longer than 150 days to apply for work permits, which creates substantial burden on them as they are unable to work legally during that time.

The current system was set in place in 1994 as a response to a growing number of asylum applications. Before 1994, applicants could file for asylum and work authorization concurrently, and asylum officers could authorize employment for up to one year even if asylum was not granted at the interview. As the number of asylum applications grew, creating backlog and delays in processing, critics argued that many people filed asylum applications in order to obtain work permits. In 1994, the regulations were amended to state that “an asylum applicant [would] not be eligible to apply for employment authorization based on his or her asylum application until 150 days after the date on which the asylum application [was] filed.” In 1996, Congress amended the Immigration and Nationality Act (INA) to reflect the language of the regulations by adding the 180-day waiting period for EAD eligibility and the 180-day deadline to adjudicate asylum applications. Therefore, although USCIS and immigration courts operate as if there were only one asylum clock, there are actually two clocks: the asylum adjudication clock and the EAD (work authorization) asylum clock. The asylum adjudication clock measures the number of days an asylum claim has been pending; the EAD asylum clock measures the number of days after an applicant files an asylum application before the applicant is eligible for work authorization.

A recent report identified five most common problems with the asylum clock highlighted by practitioners and immigration advocates:

1. a lack of transparency in the management of the clock;
2. a lack of clarity and comprehensiveness of the government’s clock policy;
3. misinterpretation of the regulations governing the clock;
4. improper implementation of the government’s clock policy; and
5. problems associated with Executive Office of Immigration Review (EOIRs)’ case completion goals.

Problems with asylum clock most often arise in immigration courts rather than asylum offices. Often, judges do not inform applicants that their clock has been stopped, and are not required to put notes in the applicant’s file as to why the clock has been stopped, opening the door to possibility of untraceable clerical error. In some courts, it is not clear who controls the clock, or how to restart the clock when the applicant is no longer responsible for the delay. Different immigration judges sometimes interpret “delay requested or caused by the applicant” differently, making it difficult for applicants to foresee how a specific request may affect their clock. Sometimes immigration courts implement the asylum clock provisions contrary to their own policies, for example permanently stopping the clock in cases where it is not stipulated by the regulations. Finally, the case completion goal for both affirmative and defensive asylum cases is currently 180 days, which may force immigration judges to stop the clock in order to meet the adjudication deadline.

The report proposes a new policy that would do the following:

1. treat the asylum clock as two separate clocks, an asylum adjudications clock and an EAD asylum clock – the two clocks should operate independently and sometimes stop at different times and for different reasons;
2. correctly interpret “delay requested or caused by the applicant”;
3. require that decisions to stop the EAD asylum clock be made on the record;
4. develop clear guidelines detailing when Immigration Judges should stop and re-start the EAD asylum clock; and
5. create a clear and consistent process for internally appealing or contesting an Immigration Judge’s application of the EAD asylum clock.

Specifically, the report states: “First, EOIR should implement a new comprehensive policy interpreting the EAD asylum clock. This interpretive policy should be clear, explicit, and in accordance with the regulations in 8 CFR §208.7(a)(2). The policy should distinguish between the asylum adjudication clock and the EAD asylum clock. Second, EOIR should develop a well-defined internal appeals process for EAD asylum clock disputes. This process will allow applicants to resolve disputes over the interpretation of the new substantive policy, and also allow for the efficient resolution of clerical errors. Third, EOIR should provide for the dissemination of the new policy and appeals process. Broadly disseminating the new information will give notice of the policy changes to EOIR staff across the country, and result in consistency across immigration courts. Fourth, EOIR should provide for training of Immigration Judges (IJs), court administrators, EOIR staff, and the Assistant Chief Immigration Judges (ACIJs) to instruct these parties on implementing the new policy and appeals process. Finally, EOIR should create a task force made up of Asylum Officers (AOs), non-governmental organizations, private attorneys, and EOIR staff to discuss EAD asylum clock issues and implementation of the policy. The task force will enable these groups to collaborate in the implementation of the new policy and resolve systemic issues as they arise. USCIS has control over the EAD asylum clock in affirmative asylum claims from the time they are filed until they are referred to immigration court. USCIS should develop ways to properly administer the EAD asylum clock. Specifically, USCIS should develop a system to better inform applicants of an AO’s decision to stop the clock and to correct improper clock stoppages. USCIS should instruct AOs and/or USCIS Asylum Supervisory Officers to review the status of the EAD asylum clock before they transfer the case to EOIR to check whether a stopped clock should be re-started. When AOs determine that a stopped EAD asylum clock should remain stopped, they should provide a rationale justifying the continued stoppage, and detail when the delay should end. USCIS and EOIR should improve their communication about the EAD asylum clock. Finally, applicants should receive detailed information about the status and tally of their EAD asylum clock when their case is referred to EOIR.”

The report concludes: “The problems with the EAD asylum clock are extensive, but they can be resolved. This report summarizes some of the most persistent clock problems, explains how they manifest in real world settings, and proposes solutions to fix the problems. The solutions proposed aim to resolve many of the implementation and interpretation problems attorneys and applicants face every day when dealing with stopped EAD asylum clocks. Confusing EOIR guidance on the EAD asylum clock is unfair to IJs because it leaves them exposed to criticism from applicants who must deal with inadequately defined and incomplete EOIR policy. EOIR, USCIS, and advocates must work together to implement these solutions and create a fair and predictable process for obtaining work authorization.”

Professionals at I.S. Law Firm have helped many people from different countries to obtain asylum in the United States, as well as to receive work authorizations while their cases are pending. If you think you may qualify for asylum, or to explore other immigration options, please contact us: +1-703-527-1779 or via e-mail: [email protected].