Final Rule for Employment Authorization for Asylum Applicants

As the world continues to reel from the effects of the ongoing pandemic, and the uncertainty it brings, the Trump Administration has characteristically decided to add to the chaos and to immigrants’ suffering during this unprecedented time. On June 26, 2020, the Department of Homeland Security (DHS) released a final rule regarding employment authorization for asylum applicants, and it is set to take effect on August 25, 2020. As we have come to expect from a DHS run by the Trump Administration, the rule puts immigrants in an even more precarious position than before.

The final rule is extensive, spanning 97 pages, but its major points regarding employment authorization are the following:

1. Asylum applicants cannot apply for employment authorization until 365 days have passed since they filed their asylum application.
2. If the asylum application is denied by an Immigration Officer or an Immigration Judge before the 365 days have passed or before USCIS has made a decision regarding the initial application for employment authorization, then the application for employment authorization will be denied.
3. Barring certain exceptions, an asylum applicant who entered the United States at a time and place other than lawfully through a port-of-entry will not be eligible for employment authorization.
4. If an immigrant files an application for asylum more than 1 year after his or her arrival to the United States, then he or she will be ineligible for employment authorization until an Immigration Officer or Immigration Judge decides that he or she meets one of the filing deadline exceptions.
5. Certain criminal convictions will now render an asylum applicant ineligible for employment authorization, including convictions for domestic violence and driving under the influence of liquor or drugs.

Generally, the rule will not affect individuals whose applications for employment authorization (whether it be an initial or a renewal application) are properly filed before the effective date of August 25, 2020. Additionally, point #3 above will only apply to individuals who enter the U.S. on or after August 25, 2020, and point #4 above will only apply to individuals who file their asylum application on or after August 25, 2020.

One thing must be clear: this is a cruel and discriminatory rule. It places individuals who are already vulnerable in an even more disadvantaged position. It forces asylum applicants to work without authorization, which exposes them to a greater chance of unsafe workplaces and unfair wages, or to live in poverty. Some individuals will be forced to rely on public benefits to support their families, something that the Trump Administration denounces, thereby placing asylum applicants in an impossible situation.

The right to request asylum is a bedrock of international law and human decency. This rule is yet another part of Trump’s campaign against immigrants, and rolling it out during a pandemic is clearly an appeal to his supporters as his re-election campaign continues to struggle due to his bungled response to the coronavirus crisis. In November, we must remember his cruelty and put an end to it.

Finally, in light of the upcoming effective date of the rule, it is more important than ever for potential asylum applicants to determine whether their case can be filed before August 25, 2020. The experienced legal team of FitzGerald Law Company is available to do exactly that, and to continue guiding its clients through the never-ending roadblocks placed by this Administration. To schedule an appointment with one of our Boston immigration lawyers call (617) 303-2600 or request an appointment online. We will be happy to serve you.

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