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.
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.
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.