In June, the Trump Administration unleashed two far-reaching attacks on the U.S. asylum system and on asylum seekers.  The first attack was the June 15, 2020 publication of proposed rules that would eviscerate the U.S. asylum system and make it next-to-impossible for anyone from a political activist in Uganda to a woman fleeing gender violence in El Salvador to obtain asylum in the United States due to the breadth of the proposed asylum restrictions. 

The second attack was the release of a final rule, set to be published on June 26, 2020, which completely transforms the eligibility criteria for asylum seekers to obtain employment authorization, including requiring asylum seekers to wait one year after filing their asylum application before they are eligible to apply for employment authorization.  This will leave many future asylum seekers unable to support themselves and their families while they wait for decisions on their cases.

It is important to understand when and how the changes will impact asylum seekers.

Final Rules to Change Processing and Eligibility Criteria for Asylum Applicant EADs

Change to 30-day initial EAD processing for asylum applicant EADs available here.
Status: Final.  Published on June 22, 2020.  In effect on August 21, 2020.

Change to eligibility criteria for asylum applicant EADs available here.
Status: Final.  Published on June 26, 2020.  In effect on August 25, 2020.  A new I765 employment authorization application form has been issued and must be used on or after August 25, 2020.

**On September 11, 2020, a district court judge issued a preliminary injunction in CASA v. Wolf, preventing the government from enforcing certain parts of the August 21, 2020 and August 25, 2020 employment authorization regulations on members of two of the organizational plaintiffs, the Asylum Seeker Advocacy Project (ASAP) and Casa de Maryland. Attorneys representing clients subject to the new regulations may want to consider having their clients become members of ASAP in order to try to benefit from the injunction. However, it is important clients understand what this membership means and that USCIS may still reject employment authorization applications filed by ASAP members who didn’t gain membership until after the district court decision. Please contact your NIJC point-of-contact if you think your NIJC asylum client may benefit from obtaining ASAP membership.** 

*The 30-day processing rules only impact asylum seekers who are filing for their initial asylum-based EAD.  Under the current regulations, USCIS is required to adjudicate that EAD within 30 days of filing; under the final rule, that requirement will no longer exist.  The new rule will apply to all asylum-based initial EAD applications filed on or after August 21, 2020.  For that reason, attorneys filing initial asylum-based EADs for clients who are eligible for an EAD prior to August 21, 2020 should ensure their applications are postmarked before August 21, 2020, are accepted as properly filed, and deemed pending on the that date to ensure their client can benefit from the 30-day processing requirement. 

*The changes to eligibility criteria for asylum-based EADs do not apply (with some minor exceptions) to employment authorization applications that were postmarked before August 25, 2020, are accepted as properly filed, and deemed pending on the that date.  For that reason, NIJC strongly encourages pro bono attorneys with asylum clients who are eligible for initial applications for employment authorization to file their applications as soon as possible prior to August 25, 2020.   

It is important to note that one of the changes in the final rule makes asylum seekers ineligible for employment authorization (with limited exceptions) if they filed for asylum past their one-year deadline.  Significantly, however, this provision will only be applied to individuals who filed for asylum past their one-year deadline after August 25, 2020.  For this reason, it may be critical for an asylum seeker who has not yet filed for asylum and is past her one-year deadline to do so prior to August 25, 2020. Please contact your NIJC point-of-contact as soon as possible if you have a case that meets this criteria.  

In short:

• Attorneys with asylum clients who have not yet filed their initial EAD and are eligible to do so before August 21, 2020 should plan to file (mail) their application no later than August 20, 2020 in order to get 30-day adjudication, but at least no later than August 24, 2020 in order to ensure they are not subject to the new eligibility rules.
   
• Attorneys with clients who have not yet filed for asylum and are past their one-year deadline, must file (mail) their I589 asylum application no later than August 24, 2020 in order to ensure their clients aren't prohibited from EAD eligibility.  Attorneys with clients in this posture should contact their NIJC point-of-contact immediately.
   
• Anyone filing an EAD application on or after August 25, 2020 must use the new form, available at https://www.uscis.gov/i-765.

Proposed Rules to Change the U.S. Asylum System

Available here.
Status: Not yet final.  Subject to notice-and-comment period.

The dramatic changes to the asylum system announced in the June 15, 2020 proposed rules are currently subject to a notice-and-comment period.  Submitting comments in response to the proposed rules will be critical in the effort to prevent the rules from being finalized in their current form.  NIJC, NIJC pro bono attorneys, community members, and partner organizations from across the country submitted comments opposing the proposed rules.

NIJC will provide additional information and guidance for pro bono attorneys regarding this new rule prior to any effective dates.