The 180-Day Asylum EAD Clock (Part: 1)

The 180-day Asylum EAD Clock (Part: 1)

The “180-day Asylum EAD Clock” is a crucial measure used to determine eligibility for employment authorization of asylum seekers in the United States. It tracks the time frame during which their asylum application is under review with the U.S. Citizenship and Immigration Services (USCIS) asylum office or the Executive Office for Immigration Review (EOIR). The USCIS service centers handle the adjudication of the Form 1-765, Application for Employment Authorization, and rely on the 180-day Asylum EAD Clock to determine if an applicant is eligible for employment authorization.

For individuals who filed for asylum on or after January 4, 1995, the wait time before filing the Form 1-765 is 150 days. USCIS cannot grant employment authorization until an additional 30 days have elapsed, resulting in a total waiting period of 180 days. It is essential to note that the 180-day Asylum EAD Clock does not account for any delays that applicants may cause or request while their applications are under review with an asylum office or immigration court.

Asylum Clock Settlement

B.H., et al. v. USCIS, et al, also known as the ABT asylum clock lawsuit is a lawsuit that challenged the way that U.S. Citizenship and Immigration Services (USCIS) and EOIR interpreted rules regarding eligibility for employment authorization during the asylum application process. The case was filed in district court in Seattle, Washington, and it resulted in a settlement that addresses five issues. Prior to the settlement: 

1. 1. Asylum applications for individuals in removal proceedings were not considered “filed” for EAD purposes unless they were filed at a hearing with the immigration judge. 
   2. Attorneys and pro se applicants who declined an expedited merits hearing stopped the asylum clock from accruing time. However, expedited hearing dates often did not allow attorneys or pro se applicants adequate time to prepare for the merits hearing. 
   3. Cases that were appealed to the Board of Immigration Appeals (BIA) and subsequently remanded to the immigration judge were not eligible to have the asylum clock started or restarted. 
   4. There was not a clear procedure to recapture a missed asylum office interview at the asylum office. 
   5. Asylum applicants were not provided notice of the way in which the asylum clock worked and the actions that could result in stopping the clock. 

The settlement addresses each of these issues.

Is there any difference between filing the application with USCIS compared to filing with an Immigration Court?

In both situations, the main issue to be aware of are delays caused by the noncitizen applicant. If there is a delay caused by an applicant, this could potentially stop the counting of days towards the 180-day period. Reasons for potential delays differ between cases filed with USCIS and cases filed with the Immigration Court.

What will cause the 180-day Asylum EAD Clock to start?

For asylum applications first filed with an asylum office, USCIS calculates the 180-day Asylum EAD Clock starting on the date that a complete asylum application is received by USCIS, in the manner described by the Instructions to the Form 1-589, Application for Asylum and for Withholding of Removal. If an asylum application is referred from the asylum office to EOIR, the applicant may continue to accumulate time toward employment authorization eligibility while the asylum application is pending before an immigration judge. 

For asylum applications first filed with EOIR. USCIS calculates the 180-day Asylum EAD Clock in one of two ways: 

1. 1. If a complete asylum application is “lodged” at the immigration court window, the application will be stamped “lodged not filed”, and the applicant will start to accumulate time toward eligibility for employment authorization on the date of lodging, or 
   2. If the asylum application is not “lodged,” the applicant generally will start to accumulate time toward eligibility for employment authorization on the date that a complete asylum application is filed at a hearing before an immigration judge. 

Applicants who lodge an application at an immigration court window must still file the application with an immigration judge at a later hearing.

What will cause the 180-day Asylum EAD Clock to stop?

As stated, delays caused by the applying noncitizen. Examples of delays caused by an applicant that can stop the clock include:

1. 1. A request to transfer a case to a new asylum office or interview location, including when the transfer is based on a new address.
   2. A request to reschedule an interview for a later date.
   3. Failure to appear at an interview or fingerprint appointment.
   4. Failure to provide a competent interpreter at an interview.
   5. A request to provide additional evidence after an interview.
   6. Failure to receive and acknowledge an asylum decision in person if required.

For most of these delays caused by the applicant, the clock will be stopped until the next interview date except for failing to appear at an interview or failing to appear in person to receive and acknowledge the decision. In the cases where an applicant is required to appear to receive the Asylum application and the applicant fails to appear to receive the decision, the clock will stop until the case is referred to the Immigration Court where it will restart at the first hearing before the Immigration Judge unless the applicant causes another delay.

Read part two here