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This article is by Ruth Dickey, a brilliant and dashing associate at Dzubow & Picher, PLLC.
During the latter part of the Obama Administration, it became common for DHS/ICE attorneys (the prosecutors) in Immigration Court to offer "prosecutorial discretion" or PD. If the applicant accepted PD and the Immigration Judge agreed, the case would be administratively closed. Basically, it would be taken off the court's calendar and placed into a permanently pending status. Applicants with weak cases might take PD rather than risk losing their cases with the Judge and getting ordered deported.
Perhaps USCIS has a case of the Gremlins. First, they sabotaged B-17's and P-52's; now, they're messing with I-765's.
Under President Obama, PD was typically offered to people who were not enforcement priorities for ICE – that is, the person had positive factors, like long-term ties to the United States and did not have any disqualifying criminal issues. During the Obama Administration, ICE published a list of factors that prosecutors would consider when a person asked for PD. According to recent data, since 2013, almost 67,000 court cases have been administratively closed based on PD. This represents about 10% of all case closings in Immigration Court.
If your asylum case was administratively closed by an Immigration Judge, and if you had your employment authorization document ("EAD") based on a pending asylum case, you remain eligible to renew the EAD for as long as the case is in administrative closure (theoretically, forever). This is because the case is technically still pending, and thus still "alive" for purposes of renewing the EAD.
Since Donald Trump came into office, DHS has largely done away with PD, and so we can expect to see far fewer cases administratively closed in the future. However, our office has several asylum clients whose cases were already administratively closed. They have ongoing needs, such as the need for an EAD.
One of my clients in this situation is an Unaccompanied Alien Child or UAC. UACs are people who crossed the border as minors without a parent or guardian. Such people are given additional procedural protections. For example, UACs have the right to present their asylum claims to an Asylum Office, which is a less intimidating environment than an Immigration Court. In my case, an Immigration Judge administratively closed my client's case so she could file her case with the Asylum Office. Before the case was closed, I "lodged" her asylum application with the Court to start her “asylum clock,” which then allows her to file for an EAD (after a 150-day waiting period).
When the time came, our office prepared the EAD application (form I-765) and mailed it. Last week, we received a response denying the EAD. In its denial, USCIS referred to the applicable regulation, 8 CFR 208.7(a)(1), claiming that it said:
An applicant whose asylum application has been denied or closed by an asylum officer or by an immigration judge within the 150-day [clock] period shall not be eligible to apply for employment authorization.
But this is not what the regulation says. USCIS inserted the phrase "or closed" into the language of the actual regulation. The full sentence in the regulation actually reads:
An applicant whose asylum application has been denied by an asylum officer or by an immigration judge within the 150-day period shall not be eligible to apply for employment authorization.
Someone at USCIS added the words “or closed” to their quotation of the regulation, and then denied our client's case because it had been administratively closed. The actual language of the regulation states that only denied--not closed--cases are ineligible for an EAD. The idea that USCIS would add language to the regulation in order to improperly deny someone--a UAC no less--their work permit is shocking and distressing.
I have already escalated the issue to the USCIS Ombudsman, an office within USCIS that can assist with delayed or difficult cases, because the denial is so problematic. I am waiting to hear back from them, but the Ombudsman’s review process can drag out for months, and my client will not have a work permit in the meantime. This is extremely frustrating for her, especially because she is young and vulnerable (she has that UAC designation for a reason).
If your case has been administratively closed and your EAD application has been denied, please let us know. If there are others experiencing this problem, we can present the issue to USCIS and hopefully seek a resolution of this unfair and harmful practice.
Originally posted on the Asylumist: www.Asylumist.com.
It's rare these days that I actually have good news to report from the Asylum Office, but recently there have been a few small improvements that are worth noting. These are not earth-shattering changes, to be sure, so don't get too excited, but they do represent movement in the right direction.
There are plenty of things you can do without an EAD.
First, as you may know, there are now long delays applying for and renewing the Employment Authorization Document ("EAD") - the work permit. As the law now stands, you must wait 150 days after filing the asylum application before you can apply for an EAD. During this period, it is often impossible to get a driver's license or a job, or to attend school, so the sooner the EAD arrives, the better.
We used to see clients get the EAD in a month or two after filing, but recently, it is more like four months. Combined with the 150-day waiting period, this means that asylum applicants are waiting about nine months from the time they file for asylum until the time they receive their EAD. That's a long time to be without the ability to get a driver's license or a job, and it is one of the hardest parts of the application process.
After the EAD is received, it must be renewed every year. The earliest a renewal can be submitted is 120 days before the current EAD expires. But the renewals also take about four months, so even if you remember to file the renewal at the earliest possible date, you may end up with a gap between the old work permit and the new. This could cause you to lose your driver's license or your job, and it is quite stressful for many people.
Fortunately, there is some relief in sight. Under new proposed rules, USCIS would automatically extend the EAD at the time the application for renewal is filed. In other words, when you submit the form I-765 to renew your EAD, you will receive a receipt after a few weeks, and this receipt will automatically extend the validity of your existing EAD. This rule also applies to EAD applications for refugees and asylees (people granted asylum), and a few others.
The rule has not gone into effect yet, and I am not 100% sure it is a done deal (though I do not see why they would change their mind). Perhaps if you are an asylum seeker who would like to see this rule implemented, you can tell USCIS about the hardship you've experienced due to EAD delays. Anyone is allowed to comment on the new rule by emailing USCISFRComment@dhs.gov. If you email them your story, you need to include the reference number of the rule in the subject line of your email, as follows: "DHS Docket No. USCIS-2015-0008".
Perhaps coincidentally, I made this exact proposal for EADs a few months back. I presume that USCIS listened to me and they will be sending me a fruit basket to thank me for the good idea. Maybe they missed the other part of my proposal, where I suggested that EADs should remain valid for two years instead of one, but the automatic extension is a good start, and it will be a welcome relief for thousands of asylum seekers.
The second bit of good news is more minor, but it is still a positive development. It used to be that when submitting the asylum application (form I-589) and supporting documents, we were required to submit the original and two copies. The new rule is that we submit the original and one copy. OK, perhaps this is only something a true asylum geek can get excited about (and maybe "excited" is too strong a word), but it does save some money and some trees, so that is all good.
For me, these changes (particularly the change related to EADs) are a sign that USCIS recognizes the new reality created by the backlog: People are going to wait for a long time, and this is a hardship that needs to be addressed. If USCIS is willing to help out with EADs, I would hope that even more changes are coming. As I discussed previously, a few low-cost improvements might include prioritizing people separated from family members, making the Advance Parole process easier, and making the asylum application and waiting process more transparent. But that is a discussion for another day. For now, we can be happy that the burden on asylum seekers will be made a little lighter.
Originally posted on the Asylumist: www.Asylumist.com.
The Office of the Citizenship and Immigration Services Ombudsman recently released its 2015 annual report to Congress. The report discusses all aspects of USCIS operations, and provides some new information about the asylum backlog and the government's efforts to improve the situation.
To resolve the backlog, each Asylum Officer will have to complete 243 cases. Ugh.
You may already be familiar with the Ombudsman's office--they are the ones who provide individual case assistance to affirmative asylum seekers and other USCIS "customers" (as they are called). They are also tasked with improving the quality of USCIS services by making recommendations to improve the administration of immigration benefits. The annual report includes these recommendations.
In this posting, I want to discuss a few of the report's findings that relate to asylum. Also, I will discuss the steps USCIS is taking to address the asylum backlog, and some recommendations for future improvements.
First, some findings. The report summarizes where we are now:
A substantial backlog of affirmative asylum applications pending before USCIS has led to lengthy case processing times for tens of thousands of asylum seekers. Spikes in requests for reasonable and credible fear determinations, which have required the agency to redirect resources away from affirmative asylum adjudications, along with an uptick in new affirmative asylum filings, are largely responsible for the backlog and processing delays. Although USCIS has taken various measures to address these pending asylum cases, such as hiring additional staff, modifying scheduling priorities, and introducing new efficiencies into credible and reasonable fear adjudications, the backlog continues to mount.
All this, we already know, but here are some numbers: At the end of FY 2011 (September 30, 2011), there were 9,274 affirmative asylum cases pending before USCIS. By the end of December 2014, that figure reached 73,103—an increase of over 700 percent (by May 2015, the number had grown to over 85,000 cases).
Probably the main reason for the backlog is the large numbers of asylum seekers arriving at the Southern border from El Salvador, Guatemala, and Honduras. When someone arrives at the border and requests asylum, an Asylum Officer gives the applicant a reasonable fear interview or a credible fear interview (if the person "passes" the interview, she will generally be sent to Immigration Court, where a Judge will determine whether she qualifies for asylum). In FY 2011, there were a total of 14,627 such interviews. In FY 2014, there were 60,085 - a four-fold increase. The Ombudsman notes that, "Various factors have contributed to this rapid rise in credible and reasonable fear submissions, including widespread crime and violence in Central America, where a majority of the applicants originate." The report continues:
These substantial increases demand considerable USCIS personnel and resources. For example, many Asylum Offices now send officers to various detention facilities around the nation to conduct credible and reasonable fear interviews. Such assignments deplete resources previously dedicated to affirmative asylum applications.
Another reason for the backlog is that the rate of new affirmative asylum filings has grown. "In FY 2011, asylum seekers filed 35,067 affirmative asylum applications with USCIS." "In FY 2014, asylum seekers filed 56,912 affirmative asylum applications, a 62 percent increase."
In addition, between September 2013 and December 2014, the number of "Unaccompanied Alien Children" with cases before USCIS increased from 868 to 4,221. These cases receive priority over backlogged adult applicants.
So what has USCIS done to address the delay?
First, the Asylum Division has been hiring more Asylum Officers. In 2013, there were 203 officers; by January 2015, there were 350, and the Asylum Division has authorization to elevate its total number of Asylum Officer positions to 448. Unfortunately, Asylum Officers do not stay in their jobs very long. The average tenure is only 14 months. One reason for the low retention rate may be that the Asylum Officer position does not have great promotional potential. Salaries start in the low $50-thousands and max out at less than $100,000. By comparison, lawyers who work in other areas of the federal government can earn more than $150,000 per year (and salaries in the private sector can be much higher).
Second, starting in late December 2014, USCIS now interviews cases on a "first-in, first-out" basis, meaning that the oldest cases are interviewed first. There is concern that such a system will encourage people to file frivolous cases in order to get a work permit while their cases are pending, but so far, we really do not know if that is happening.
Third, in May 2015, USCIS announced that it would begin publishing estimated wait times for asylum interviews at the different Asylum Offices. Supposedly, they will provide an approximate timetable—roughly a two to three-month range—within which the interview will take place. We have been hearing about this idea for some time, and hopefully, USCIS will post this information soon.
Finally, "USCIS has implemented a range of policy and procedural changes in the credible and reasonable fear contexts that have had the effect of shortening case processing times." For example, more interviews are conducted telephonically, as opposed to in-person, which helps save the Asylum Officer's time. Of course, shortcuts potentially affect the quality of the decision-making, and USCIS is monitoring this. Personally, given that the large majority of applicants "pass" their credible and reasonable fear interviews, I think it would save time to eliminate the interviews altogether, and allow anyone to submit an asylum application and go directly to court.
The report also lists two ways to potentially accelerate the interview date: (1) interview expedite requests; and (2) interview "Short Lists:"
First, each Asylum Office accepts and evaluates requests for expedited interviews, granting or denying those requests based on humanitarian factors, such as documented medical exigencies, as well as the Asylum Office’s available resources. Depending on the Asylum Office, applicants may make these requests in-person or via email. Some Asylum Offices also maintain Short Lists, containing the names of backlogged applicants who have volunteered to make themselves available for interviews scheduled on short notice due to unforeseen interview cancellations or other developments. Backlogged applicants may wish to contact their local Asylum Office to inquire about the availability of such a list.
I discussed these ideas, and a few others, here.
Lastly, I want to briefly discuss the report's findings related to delays obtaining Employment Authorization Documents ("EADs"). The main point of interest here is that the delays are seasonal. For various reasons, EAD applications filed during the summer months take longer. This means--if possible--try to file for or renew your EAD outside the busy season. To me, there is an easy solution to this problem, at least as far as asylum seekers are concerned: USCIS should make the EAD valid for two years instead of one, or better yet, tie the EAD to the asylum application, so it is valid for the duration of the case. I have discussed problems and suggestions for improvement in the EAD process here.
Perhaps it provides some comfort to asylum seekers to know that the U.S. government is trying to reduce the backlog and move their cases along. If you are interested to learn more, take a look at the full report.
Originally posted on the Asylumist: www.Asylumist.com.
If you have a case pending with the Asylum Office and you move, you are supposed to file a change of address (form AR-11) within 10 days. It should be that easy, but of course, these days at the Asylum Office, nothing is easy.
Does this count as a permanent address?
The first problem is that if you move and you file a change of address, it could affect your eligibility for an Employment Authorization Document ("EAD")--a work permit. Once your case is received by the Asylum Division, the "Asylum Clock" starts to count time. When the Clock reaches 180 days, you are eligible for an EAD (you can mail your EAD application after 150 days, but unless the Clock reaches 180 days, you will not receive the EAD). The problem is that if you do anything to cause a delay in your case, the Clock will stop and you won't get your EAD, at least not for a long time.
The Clock stops if you fail to appear for an interview or a fingerprint appointment, or if you move your case to a different Asylum Office--all these things are considered applicant-caused delay. Therefore, if you move, and the move results in your case transferring to a different Asylum Office, you may lose your opportunity to get an EAD (to see whether a particular move will cause your case to transfer to a new Asylum Office, you can check here).
In theory, the solution to this problem is easy: Don't move until after you receive your EAD. In reality, it is not always so simple. People who file for asylum often do not have stable addresses in the United States (they're refugees after all), and so it can be difficult to maintain a permanent address for long enough to receive the EAD. If at all possible, you should find a long-term address and use that address when you file your case. This will potentially save you a lot of trouble down the line.
For those unlucky few who must move their case to a different asylum office, you have to make a choice: Change your address--as the law requires--and likely lose the EAD (if less than 180 days have passed on the Clock), or violate the law by either keeping the old address (assuming you can still get mail there) or using another address within the jurisdiction of the original asylum office. If you choose to violate the law, you will probably get the EAD, but you could be subject to civil and criminal penalties (a fine and up to 30 days in jail), and it could affect the outcome of your asylum case ("So, Ms. Asylum-Seeker, you lied to us about your address. What else are you lying about?").
Another problem for people who change Asylum Offices is that the transfer can cause delay (though I've seen examples both ways - usually a move makes the case slower, but in other cases, it seems to make the case faster). It may also put you far away from the lawyer who initially prepared your case or other people who are assisting you. There is not much you can do about these things, but they are good to think about before you file the case.
A third problem occurs when you move for a temporary period of time. I see this a lot: People move to a new city for school or work, but they do not change their "permanent" address. In this case, it is sometimes difficult to know whether to file a change of address form. If you change your address again and again, you will potentially bounce around between different asylum offices and never get an interview. On the other hand, the Asylum Officer might be suspicious if you list your home address in one city, but you are working or studying in a distant city. When my clients make a "temporary" move, I advise them to keep as much of their documents at their "permanent" address as possible: Driver's license, tax documents, bank accounts, etc. Even so, it is unclear whether we are violating the law by not informing DHS about the temporary move. Indeed, the law itself (INA § 265) provides little guidance. At least in my experience, the Asylum Office is fairly lenient on people who make temporary moves, as long as there is evidence that they have maintained the permanent address.
As a lawyer, of course, I cannot advise anyone to violate the law by not filing a change of address form. But I would offer that if you are thinking about violating the law in order to get your EAD or keep your case from being transferred, you should talk to a lawyer first about your specific case. It may seem easy enough to not inform USCIS of an address change, but I have seen this play out at asylum interviews, and I recently almost had a big problem for one client who failed to inform USCIS about his change of address (let's just say I was chastised by the Asylum Officer, which made me feel kind-of bad (Jewish guilt and all that), but fortunately, the client received asylum).
In the end, the best way to avoid a problem is to file the asylum application using an address where you can remain for a while. In the days before the backlog, when cases only took a few months, this was not difficult. But now, like everything else related to asylum, it ain't easy.
Originally posted on the Asylumist: www.Asylumist.com.
If you look at the processing times on the USCIS Texas Service Center website, you will see something interesting. The website indicates that USCIS will complete an asylum seeker's I-765 form--the application for an Employment Authorization Document or "EAD"--in three weeks. Perhaps USCIS views this time frame as aspirational. I view it as metaphorical. Or maybe delusional.
EAD ETA? WTF.
The reality is that EADs are not processed in three weeks. If you're lucky, it will take three months. If you're not lucky, it may be a lot longer than that. Indeed, it seems of late that processing times for EADs have become much slower. As a result, some of our clients have lost their driver's licenses (which are tied to the EADs) or their jobs. The problem has caught the attention of the American Immigration Lawyers Association, which is investigating (and if you are an attorney whose client's EAD is delayed for more than 90 days, you can report it here).
So why is this happening? As usual, I have no idea. USCIS doesn't explain such things. What can be done about it? A few things:
- If you are filing to renew your EAD, you should file as early as possible. The instructions indicate that you can file the application 120 days before your old card expires. That would probably be a good idea. However, you should be careful not to file any earlier than 120 days ahead of time. EADs filed too early might be rejected, which will result in further delay (because you have to wait for the rejection notice and then re-file).
- If you already filed for your EAD and the application has been pending more than 75 days, you can contact USCIS customer service and ask that an "Approaching Regulatory Timeframe 'service request' be created." Supposedly USCIS will route the service request to the appropriate office for review. You should note that if you receive a request for evidence and then respond, the "clock" starts over for purpose of calculating the 75-day period. You can see more about the obscure and exciting calculation of the 75-day period here.
- If you are applying for your first EAD based on a pending asylum case, you can file 150 days after your asylum application was initially filed (the date of filing is on your receipt). However, if you have caused a delay in your case (by rescheduling an interview, for example), the delay will affect when you can file. The I-765 instructions explain how applicant-caused delay affects eligibility for an EAD. Please note that the 150-day waiting period is written into the law and cannot be expedited.
- If your case is in Immigration Court, and you cause a delay (by, for example, not accepting the first hearing date offered to you), the Asylum Clock might stop, and this could prevent you from receiving an EAD. I have written about the dreaded asylum clock before, but if you are in court, you'd do well to consult an attorney about your case and about your EAD.
- If you entered the country at the border and were detained and then "paroled" in, you might be eligible for an EAD as a "public interest parolee": see page 4 of theI-765 instructions. This one can be tricky, so you might want to consult with a lawyer before you file under this category.
- If you already have asylum, but your EAD expires, fear not: You are still eligible to work. You would present your employer with your I-94 (which you received when you were granted asylum) and a state-issued photo ID (like a driver's license). For more information, see the Employer Handbook, pages 13 and 50.
- If you are a refugee (in other words, you received refugee status and then came to the United States), you can work for 90 days with your I-94 form. After that, you must present an EAD or a state-issued ID. For more information, see the Employer Handbook, pages 13 and 50.
- If all else fails, you can try contacting the USCIS Ombudsman about the delayed EAD. The Ombudsman's office assist USCIS customers and tries to resolve problems. Normally, they want to see that you have made some effort to resolve the issue through regular channels before they intervene, but if nothing else is working, they may be able to help out.
The last thing I will say about asylum seekers and EADs is this: If you do not have an EAD, you are not eligible to work lawfully. However, if you are able to find a job without the EAD, it should not affect your asylum case. In other words, working without permission does not block a person from obtaining asylum. It may affect your ability to obtain other types of immigration benefits, and if you have questions, you should consult a lawyer.
It is unclear to me how an asylum seeker is expected to survive without a job or a driver's license. With all the problems in the asylum system, you'd think USCIS could do something to make life easier for people waiting for their cases to resolve. One thing to be done is to process the EADs in a timely fashion. Another would be to make the EADs valid for the length of the case, so there is no need to re-apply (or at least make them valid for two years instead of one). For now, however, it is up to asylum seekers to fend for themselves: Apply as early as you are allowed for the EAD and hope that it is granted quickly.
Originally posted on the Asylumist: www.Asylumist.com.