Federal District Judge Approves Settlement in Class Action Lawsuit on Employment Authorization for Asylum Applicants

Written by Wen Fa, HRI Legal Intern

Human Rights Initiative is pleased to report that on November 4, 2013, Federal Judge Richard A. Jones of the U.S. District Court in Seattle ordered the final approval of a nationwide class action settlement agreement in a case that will impact many of our asylum-seekers.   The settlement will make it easier for asylum-seekers to obtain work authorization during the often lengthy asylum process.

An asylum-seeker can apply for work authorization, also known as an EAD, 180 days after the asylum application has been filed.  Once 180 days have passed, as long as there are no delays caused by the applicant, United States Citizenship and Immigration Services (USCIS) is supposed to grant the applicant work authorization.  Tracking this 180 days (known as “the asylum clock”) for employment authorization purposes can be confusing because the immigration court, also known as the Executive Office for Immigration Review (EOIR), is authorized to stop the clock based on specific delays in the adjudication process. USCIS and EOIR have issued extensive policies regarding when in the application process the asylum clock starts, when the clock should be stopped (tolled), and when the clock should be restarted.  However, for the applicant, the policies are often unclear and inconsistently applied, and applicants often are uninformed about the rules and the decisions being made in their cases with regards to the asylum clock.

The settlement agreement makes several changes to the November 15, 2011 Operating Policies and Procedures Memorandum by Chief Immigration Judge Brian O’Leary that previously set policies related to work authorization for asylum applicants.

First, the settlement agreement makes several changes regarding notice and review of asylum claims. For example, it requires immigration judges to make the reason(s) that a case is adjourned (delayed and reset to a later date) clear on the record. Under the agreement, EOIR and USCIS will provide general information regarding employment authorization for asylum seekers with pending applications, including where to obtain case-specific information, the impact of hearing adjournment codes on EAD eligibility, and where to direct inquiries relating to requests to correct hearing adjournment codes and inquiries relating to EAD eligibility. The EOIR has also agreed to provide notice to an asylum applicant when an asylum application is lodged or filed with an immigration court.

Second, the EOIR will now accept complete defensive asylum applications at the immigration court clerk’s window as “lodged not filed.” Although the requirement that an asylum application be filed before an immigration judge will remain, this change affects asylum applicants applying for employment authorization. In adjudicating an application for employment authorization, USCIS will now consider the date on which the application was stamped “lodged not filed” as the application filing date for the purpose of calculating the time period for EAD eligibility.

Third, the settlement agreement will allow attorneys more adequate time from an initial hearing to the merits hearing to prepare the case. The 2011 memorandum instructs judges to allow a minimum of 14 days when setting a case from a master hearing to an individual calendar hearing. Pursuant to the settlement agreement, a minimum of 45 days must be allowed, except for detained cases, in which the 14-day time period will remain. This is crucial for HRI.  Volunteer attorneys serve as lead counsel in almost all of our asylum cases.  It is next to impossible to prepare an asylum case in 14 days, however, many of our attorneys will have time to conduct a trial if given 45 days.  Usually our clients are given the option of having their cases heard at the “next available hearing date” (which now must be a minimum of 45 days from the date of the prior hearing) or going to the end of the judge’s calendar, often 18 to 24 months later, which is considered an applicant-caused delay, making them ineligible for work authorization during this long period.

Fourth, the settlement agreement changes the effects of a Board of Immigration Appeals (BIA) remand of a case for adjudication of an asylum claim. For the purposes of EAD eligibility, the applicant will be credited with the number of days that elapsed between the initial immigration judge denial and the date of the BIA remand order. The applicant will also accrue time creditable toward employment authorization from the date of the BIA remand order going forward, exclusive of applicant-caused delays.

Finally, the settlement agreement requires the USCIS to take additional steps if an applicant misses her asylum interview. The USCIS will mail a “Failure to Appear” Warning Letter as soon as possible after an asylum applicant misses an interview. The letter will describe the effect of the failure to appear on EAD eligibility and list the procedural steps the applicant must take to establish “good cause” for failing to appear for the interview.

HRI welcomes all of these changes.  The inability to work during the pendency of an asylum claim is the biggest challenge our clients face.  They are ineligible for any government assistance and often relying on strangers and charities for basic necessities such as food and shelter.  The ability to work will allow them to provide for themselves during a process that can take years.


Read the entire settlement agreement here.

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