I’m grateful for the dedication and perseverance of our partners. When we work together, significant progress can be made in our country. Today, thanks to the work of various LIRS partners, significant changes to federal agency practice are being implemented that will help asylum seekers gain employment. LIRS Staff Attorney Angela Edman shares her knowledge on the recent changes, below.
The freedom to work and earn a living by choosing to engage in employment is essential for newcomers to become productive members of society, integrate into their communities, and maintain agency over their own lives. The right to work is recognized and enshrined in international human rights law as an economic and social right necessary for development. Yet many asylum seekers face lengthy and arbitrary barriers to employment while they await decisions on their cases in the United States. Thanks to a class action lawsuit filed by Access to Justice partner Northwest Immigrant Rights Project (NWIRP), in conjunction with the Legal Action Center (LAC), the Massachusetts Law Reform Institute (MLRI), and Gibbs Houston Pauw (GHP), several important changes are set to be implemented today, December 3, that will greatly increase access to employment for asylum seekers.
Legally, asylum seekers are permitted to apply for an employment authorization document (EAD) 150 days after they file their application for asylum, and U.S. Citizenship and Immigration Services (USCIS) is required to grant it 180 days after the applicant filed for asylum. However, applicants face pervasive complications with the “asylum clock;” the mechanism USCIS and the Executive Office for Immigration Review (EOIR), the government agency that administers the immigration court system, use to measure these time periods. Lack of clear guidance on when the clock starts and stops, transparency, and opportunity for appeal have caused great delays, sometimes amounting to years, in which asylum seekers have no way to support themselves while they await a decision.
In light of these unlawful practices, NWIRP and their partners filed B.H. et al. v. U.S. Citizenship and Immigration Services, et al., No. 11-02108 (W.D. Wash. filed December 15, 2011), a nationwide class action lawsuit against USCIS and EOIR on behalf of unnamed asylum seekers who faced arbitrary employment delays or denials. The lawsuit alleges USCIS and EOIR practices violate the constitution, federal statutory law, and administrative guidelines; and resulted in harm to the asylum seekers. Earlier this year, the parties reached a settlement agreement in which changes will be implemented to address five major barriers to employment authorization.
First, in the past, the asylum clock only started once an asylum seeker filed a complete application before a judge instead of a court clerk, which could take a very long time due to increased backlogs. Now, the clock will start running when an asylum seeker “lodges” an application with a court clerk.
Second, asylum seekers in “expedited” proceedings receive hearing dates within 14 days of lodging an application, which is not enough time for asylum seekers to find a lawyer or prepare a case. If the asylum seeker or attorney requested additional time, the asylum clock stopped. Now, judges must give non-detained clients hearings that are at least 45 days away, to allow for more time to prepare without stopping the clock.
Third, the asylum clock previously stopped if an immigration judge denied an applicant’s case, and would not restart if the Board of Immigration Appeals (BIA) remanded, or sent back to the judge for reconsideration. Now, the clock restarts when the BIA remands to an immigration judge on appeal.
Fourth, an applicant only had 15 days to show good cause for missing an interview or the clock would permanently stop, and applicants often were not given sufficient notice of this right. Now, USCIS must mail asylum seekers a letter explaining that asylum seekers will have 45 days to show good cause if they missed an interview.
Finally, judges are now required to let asylum seekers and their lawyers know the consequences of asking for case delays for various reasons, and whether it will stop the “asylum clock” and delay the work permit process.
This court case is an important step toward ensuring those fleeing persecution and seeking asylum in the United States will have the freedom to support themselves and become productive members of society. LIRS supports these steps, and applauds the parties for reaching an agreement that will increase newcomers’ access to justice and sense of welcome.
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