New Trump Administration Rule Makes Dramatic Changes to Asylum Seekers’ Access to Work Authorization

A new Trump administration rule, effective today, just significantly changed how asylum seekers in the United States will be eligible for work authorization. According to U.S. Citizenship and Immigration Services (USCIS), this rule is meant to “strengthen employment eligibility requirements for asylum seekers” and “deter aliens from illegally entering the U.S.” to file what they believe are non-meritorious claims for asylum, just to obtain employment authorization.

In the United States, the asylum process can last for years before receiving a final decision on an asylum application. This is due to the years of backlogs in both the Asylum Office and Immigration Courts nationwide. Under the previous regulations, asylum seekers were eligible to file for work authorization after their application had been pending for 150 days, and USCIS was required to adjudicate these first-time applications within 30 days of filing. Once an asylum seeker obtains work authorization, not only can they work lawfully, but they can also obtain identification documents, a driver’s license, and a social security number. Many asylum seekers fleeing their home countries and coming to the U.S. do not have family or a support network here upon arrival. Work authorization allows them to support themselves during the years-long process and avoid homelessness, hunger, and labor exploitation. Also, because there is no right to counsel in immigration cases, if an asylum seeker wants legal representation for their asylum case, they will have to come up with the money to hire an attorney.

But the new Trump administration rule makes significant changes to the eligibility criteria and adjudication timeline for asylum seekers’ work authorization applications. Here are some of the most notable changes:

  • Asylum applicants must now wait 365 days after filing an asylum application before they can apply for work authorization, doubling the previous wait time under the old rule.
  • Asylum applicants who do not file within the 1-year filing deadline are ineligible for work authorization unless and until an asylum officer or immigration judge determines that they meet an exception to the 1-year rule. Many applicants are unable to file within one year of entry because of administrative or procedural hurdles outside of their control, or sometimes there are changed circumstances in their home country that prevented them from filing within a year. This change effectively bars these applicants from applying for work authorization while their asylum applications are pending.
  • There will no longer be a timeframe in which USCIS is required to adjudicate an application for work authorization, so even after waiting 1-year to file, it could still take months before receiving a decision on the application.
  • USCIS can now deny an application for work authorization if they determine there was an “applicant-caused delay” associated with the pending asylum application. So even after waiting the full 365 days before filing, it can still be denied if USCIS decides there are any unresolved “applicant-caused delays,” such as:
    • Missing an interview or a decision pickup
    • Missing a biometrics appointment
    • Requesting to transfer asylum offices if you move to another jurisdiction
    • Rescheduling an interview if you are unable to make it on the scheduled date
    • Failure to provide an interpreter at the interview
  • Asylum seekers who entered without inspection between ports of entry are no longer eligible for work authorization, with very few exceptions. It is important to note that there is no bar to asylum based on manner of entry.
  • Asylum seekers with arrests or convictions for certain minor criminal offenses will be barred from applying for work authorization if a USCIS officer determines it is a “particularly serious crime” or “serious non-political crime,” which are legal terms of art subject to constant interpretation by the Board of Immigration Appeals and federal circuit courts.

The new rule increases the obstacles asylum seekers already have to overcome in order obtain work authorization. Certain changes even require the merits of an asylum application be assessed in the adjudication of the application for work authorization. This is yet another way the Trump administration hopes to deter the filing of “frivolous, fraudulent, or otherwise non-meritorious [asylum] claims.” But those fleeing persecution will continue to come to the U.S. seeking protection so long as conditions in their countries do not improve. Rather, these changes will force immigrants who are lawfully in the U.S. seeking asylum, to work under the table even longer, increasing the risks for both employees and employers.

If you have questions regarding your current eligibility for work authorization under the new rule, contact our office to speak with an attorney.

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