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DHS publishes final rule adopting one-year wait for asylum EADs

  1. Date Announced

    June 26, 2020

    DHS publishes final rule extending the wait time before an asylum applicant can apply for employment authorization from 150 days to 365 calendar days; limits the employment authorization validity period to a maximum of two years; automatically terminates employment authorization when an applicant’s asylum denial is administratively final, and bars asylum applicants from EAD eligibility if they have been convicted of particularly serious crimes. The rule was signed by Chad Mizelle, Senior Official Performing the Duties of the General Counsel, on behalf of Acting Secretary Wolf.

    [ID #984]

    See Biden administration action below.

    View Policy Document
  2. Effective Date of Change

    Aug. 25, 2020
  3. Subsequent Action

    December 23, 2020

    Individual and organizational plaintiffs filed suit against the Department of Homeland Security, Acting Secretary Chad Wolf, and Acting DHS General Counsel Chad Mizelle in D.D.C., seeking declaratory and injunctive relief regarding two rules (85 Fed. Reg. 38,352 and 85 Fed. Reg. 37,502) limiting asylum seekers' access to EADs. Plaintiffs raise acting appointments validity claims in addition to other claims.

    **Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

    Complaint, AsylumWorks v. Wolf (D.D.C. Dec. 23, 2020)
  4. Subsequent Action

    June 4, 2021

    On June 4, 2021, Biden's DHS "asked a Maryland federal court to preserve Trump-era regulations restricting asylum-seeker work permits, saying the official who created the policies had the legal authority to do so despite several courts calling that authority into question."

    2021.06.14 Reported on Law360: DHS Says Wolf Had Power To Issue Asylum Work Permit Regs
  5. Biden Administration Action

    June 14, 2021

    This notice made known the Biden administration's intent to rescind or substantively revise the Trump-era policy identified in this entry.

    DHS announced in the Uniform Regulatory Agenda that it plans to issue a notice of proposed rulemaking that would rescind or substantively revise two final rules related to employment authorization for asylum applicants, including the August 25, 2020 final rule that modified DHS's regulations governing asylum applications, interviews, and eligibility for employment authorization based on a pending asylum application.

    Rescission of "Asylum Application, Interview, & Employment Authorization" Rule and Change to "Removal of 30 Day Processing Provision for Asylum Applicant Related Form I-765 Employment Authorization"

Commentary

CLINIC - FAQs on Changes to the Employment Authorization Rules for Asylum Seekers

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NIPNLG - Practice Alert Proposed Criminal Bars to Asylum: Intersection with New and Proposed Asylum Regulations

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