New Report Provides Solutions to Broken Asylum Employment Authorization Clock

Asylum applicants and their attorneys have long struggled to better understand how the employment authorization asylum clock (“EAD asylum clock”) functions. The clock, which measures the number of days after an applicant files an asylum application before the applicant is eligible for work authorization, affects potentially more than 50,000 asylum applicants each year. While the law requires asylum applicants to wait 150 days after filing an application to apply for a work permit and in some instances, permits the government to extend this waiting period by “stopping the clock” for certain incidents caused by the applicant, some applicants often wait much longer than the legally permitted timeframe to receive a work permit, which can cause a host of problems.

In an effort to find workable solutions to the asylum clock problems within the current regulatory framework, the American Immigration Council and Penn State Law School’s Center for Immigrants’ Rights released a new report, Up Against the Clock: Fixing the Broken Employment Authorization Asylum Clock, which examines the laws, policy, and practice of the “Employment Authorization Document (EAD) asylum clock and provides targeted recommendations.

What Happens When the Clock Stops?
When the Executive Office of Immigration Review (EOIR) or USCIS personnel stop an asylum applicant’s employment authorization “clock” before 150 days, the applicant is not eligible to apply for work authorization. This inability to work can have devastating consequences for applicants, who, in many cases, are fleeing persecution in their home countries and do not have strong support networks in the United States. Without the ability to work, asylum applicants may find themselves vulnerable to exploitation, unable to support their families, and in extreme cases, compelled to return to the countries from which they fled.

Why Does the Clock Stop?
According to EOIR and USCIS policy, the EAD asylum clock stops in response to certain actions by the asylum applicant. The reasons for the stop may include requests for a continuance to better prepare an asylum case, time to seek representation, or even adjournment due to the illness of an applicant. In many instances, asylum applicants and their lawyers believe the clock was improperly stopped or do not agree with the agency policy that resulted in the stop.

Key Problems
The new report identifies several key areas of EAD asylum clock problems that plague asylum applicants and their advocates, and calls on the agencies that control the clock to improve how the clock functions. The key categories of asylum clock problems include: a lack of transparency in the government’s administration of the clock; the absence of clear guidance about how agencies should administer the clock; and problems related to the agencies’ interpretation and implementation of the law governing the clock.

Recommendations
The report also provides targeted recommendations for USCIS and EOIR intended to address each of the categories of problems. Among the solutions, the report recommends that EOIR develop comprehensive new, clear and explicit policy regarding the clock. The new policy should treat the employment clock separately from the adjudications clock (the 180 day clock for completing an asylum application), properly distinguishing the statutorily distinct clocks. In addition, the report recommends that EOIR better interpret existing regulatory language to stop the clock only when there is a delay “without good cause.” The report also recommends that EOIR stop the EAD asylum clock on the record and provides a new system for appealing agency errors relating to the asylum clock.

The report concludes by calling upon EOIR to create a task-force made up of stakeholders involved in the EAD asylum clock that include, but are not limited to AOs, NGOs, private attorneys and EOIR personnel to discuss EAD asylum clock issue and implementation of the policy.

Ultimately, as the report carefully points out, the agencies must bear responsibility for ensuring asylum applicants are able to work and support themselves while pursuing legitimate asylum claims.

Photo by wwarby.

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  • Juan C. Blanco, Esq.

    I am an immigration attorney working out of Miami, Florida.

    This is a very important issue affecting thousands of asylum seekers. The EOIR can stop the clock as early as the first master hearing if the applicant seeks a continuance to obtain legal counsel. This seems unfair, especially in light of the fact that many asylum seekers do not have the necessary funds to pay for legal representation or require additional time to find an attorney (pro-bono or otherwise) to help them in their asylum matter, which in and of itself is a very complicated and confusing process.

    The EOIR and CIS should allow the clock to run in certain cases, where the continuance or delay of the case is not a deliberate ploy to delay the adjudication pocess. Applicants for asylum should be given the opportunity to seek counsel. Granted, stopping the clock may be appropriate after the first master hearing where the applicant/respondent has been advised of appearing at the next (or 2nd) master hearing with legal representation. As far as stopping the clock by the Service, this should only be done where the applicant misses an asylum interview for “non-emergent” or “non-justified” reasons.

    Thank you for allowing me the opportunity to vent!

  • Steve Zawacki, Esq.

    The “clock” was a response to the time when folk would just arrive at a Port Of Entry, claim “asylum” and get work authority on-the-spot. The abuse was so bad, even “60 Minutes” reported it. So, Congress came up with the “clock.”

    8 CFR 1208.7 covers employment authorization for asylum applicants. Regarding the “clock,” the second sentence of Subsection (a)(2) states, “Any delay requested or caused by the applicant shall not be counted as part of these time periods, including delays caused by failure without good cause to follow the requirements for fingerprint processing.” So, the immigration court finds itself having no choice but to stop-start the “clock” whenever proceedings are delayed by applicant action/motion/request, or the court is in violation of the regulation.

    If an amendment to the regulation is desired, that action requires a demonstration to the agency/department responsible for the regulation why the current regulation is not fulfilling the foundation statute within the intent of Congress.

    As long as the “clock” exists in statute, and the “intent of Congress” appears fulfilled by the corresponding regulation, it’s going to be tough fight to amend the regulation.

  • Elaine C. Schneider, Esq.

    It also turns out that if the IJ (Immigration Judge) asks the applicant and his/her attorney… “Would you like the earliest available hearing date?” If the response is, “No, I would like my client to remain safe as long as possible.” Then, the response of not taking the first available date by itself will STOP the CLOCK, and an applicant who is between 150 and 180 can end up just a few weeks short and not able to work. One of the only ways to change the code and obtain an EAD is then to file a MOTION to RESTART the CLOCK… and request the next available hearing date. The “CODE” and “CLOCK” and not selecting that first date lead to this outcome, and the attorney has to know that, and the client decide on this choice.

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