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Asylum During the Post Trump-Biden Presidency

Asylum During the Post Trump-Biden Presidency

In June of 2020, the Department of Homeland Security proposed two new regulations regarding work permits for immigrants who have applied for asylum.

The final rules were published in June 2020, and went into effect on August 21, 2020 and August 25, 2020.

These new rules are based on a Memorandum by then President Donald Trump, which was published on April 29, 2019, entitled “Presidential Memorandum on Additional Measures to Enhance Border Security and Restore Border Security and Restore Integrity to Our Immigration System.”

The memo, and thus the new rules are aimed at making it more difficult for asylum seekers to file for asylum, and for employment authorization. The purported rationale is to “reduce incentives for aliens to file frivolous, fraudulent… or otherwise non-meritorious” applications. They are attempting to deter applicants from fling frivolous asylum claims to obtain work authorization.

Changes to the Regulations- Effective August 21, 2020

Previously, the U.S. Citizenship and Immigration Service had 30 days from the time an asylum applicant filed their I-765, Application for Employment Authorization to process that application. This new rule removes that requirement so that now USCIS may take as much time as it wants in processing initial I-765 applications.

This rule only applies to initial applications for work authorization received on or after August 21, 2020.

Changes to the Regulations- Effective August 25, 2020

There were several changes made in this Final Rule. Some of the key changes were:

  • 356 Day Waiting Period: Asylum Applicants must wait 365 days after their application for asylum is received, to apply for work authorization.
  • Late Filed Asylum Applications: Employment Application Documents will be denied to all applicants (except unaccompanied minors) who did not file their application for asylum within one year of entering the United States
  • Recommended Approvals: USCIS may no longer issue ‘recommended approvals;’ therefore, employment authorization must be based on an actual approval.
  • Unlawful Entry: Those who did not enter the US at a lawful port of entry are barred from receiving employment authorization (with a few exceptions).
  • Certain Convictions: Individuals with the following convictions are barred from obtaining work authorization based on asylum: Aggravated felonies, all other felonies, certain public safety offenses including domestic violence or assault, child abuse or neglect, possession or distribution of a controlled substance, and driving under the influence, regardless of how the offense is classified by a state or local jurisdiction.
  • Automatic Termination: Employment authorization now automatically terminates if an asylum application is denied.
  • Validity Period: The employment authorization validity period is now discretionary and may not exceed 2 years.
  • Applicant Caused Delays: Any unresolved, applicant caused delays could be the basis for denying an application for work authorization.
  • Discretionary Review: USCIS may now deny any EAD as a matter of discretion.

This set of rules only applies to work permit applications postmarked or electronically filed on or after August 25, 2020.

What do these new rules mean?

Applicants for work authorization, based on a pending asylum application will wait longer for their approvals. Additionally, the number of asylum applicants who will be eligible for work authorization will be greatly reduced.

Casa de Maryland v. Wolf

On September 11, 2020, the District Court of Maryland issued a temporary injunction preventing the government from enforcing certain parts of the August 21st and August 25th rules against members of Casa de Maryland or members of the Asylum Seeker Advocacy Project.

If you are an asylum seeker or you fear persecution if returned to your home country, please contact an immigration attorney immediately. Our attorneys at Landerholm Immigration, APC, are experienced and dedicated to helping and guiding asylum seekers. Please feel free to call us at 510-488-1020 to see how we can help.


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