DHS Publishes Final Rule Restoring Asylum Regulations

Jackson Lewis P.C.

Announcing a new final rule, the Department of Homeland Security (DHS) is officially reinstating the 2020 asylum rules in light of the court decision that said they were invalid.

In February 2022, the U.S. District Court for the District of Columbia vacated two 2020 Trump-era rules that for two years had made it more difficult for asylum seekers to gain employment authorization: the Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications (Timeline Repeal Rule) and the Asylum Application, Interview, and Employment Authorization for Applicants (Broader Asylum EAD Rule).

The Timeline Repeal Rule eliminated the requirement that USCIS adjudicate initial EAD applications for asylum seekers within 30 days of receipt and the Broader Asylum EAD Rule extended the wait period for EADs for asylum seekers from 180 days to 365 days. The Broader Asylum EAD Rule also excluded from eligibility for employment authorization individuals who failed to file for asylum within one year of their last entry.

DHS is officially reinstating the EAD provisions that had been in effect for Form I-589, Application for Asylum and Withholding of Removal, and Form I-765, Application for Employment Authorization, for applications that have been pending with USCIS as of February 8, 2022, or received on or after that date.

Under the vacatur and the new rule:

  • Asylum applicants can apply for initial EADs 180 days following the filing of their asylum applications;
  • Absent a denial, USCIS has 30 days from the date of filing of the EAD application to grant or deny the initial application;
  • Asylum applicants who fail to file within one year of their most recent admission to the United States are not precluded from filing for employment authorization;
  • Asylum EAD renewals must be received 90 days in advance of expiration;
  • To renew an asylum EAD, the applicant must establish the asylum application is still pending; and
  • EADs are renewable for the continuous time period necessary for an asylum officer or immigration judge to adjudicate the asylum application and during the period of any administrative or judicial review.

Asylees who have timely filed for an EAD renewal are entitled to a 540-day automatic extension if the renewal was filed between May 4, 2022, and October 26, 2023. After October 26, 2023, the 540-day extension will sunset, leaving only a 180-day automatic extension.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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