Class Action Claims USCIS Wrongfully Blocks Asylum Seekers from Work Authorization [UPDATE]

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A proposed class action alleges U.S. Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review have unlawfully denied those who’ve applied for asylum authorization to work while their applications are being decided on. 

Specifically, the 35-page lawsuit says the defendants have failed to provide asylum applicants with authorization to work when their applications are still pending after the six-month waiting period established by the federal Immigration and Nationality Act (INA) has passed. As a result, proposed class members have been left in “dire financial straits” and forced to rely on the goodwill of others to support themselves and their families, the complaint states. 

Under the INA, the complaint says, Congress directed USCIS and the Executive Office for Immigration Review to adjudicate asylum applications within 180 days after an application is filed. During this 180-day window, according to the suit, an asylum applicant is ineligible to work. The problem, the lawsuit stresses, is that asylum applications filed by individuals facing removal proceedings are not, and often cannot be, adjudicated within the statutory 180-day period. 

As the case tells it, many applications languish for years. In recognition of the hardship asylum seekers generally face, the suit says, Congress has afforded asylum applicants the right to obtain an employment authorization document (EAD) when their application has been pending for more than 180 days, so long as they satisfy certain other eligibility requirements. 

According to the suit, however, USCIS’s asylum EAD clock has been plagued by numerous issues since its inception more than 20 years ago. Ultimately, asylum seekers are at the mercy of USCIS because there exists no notice requirement or other viable mechanism to challenge when a person’s EAD clock starts, stops or does not restart, the lawsuit relays.

The plaintiffs assert that the policies and practices at issue unlawfully keep eligible asylum applicants from working on account of meeting the 180-day adjudication window.

A decade ago, the case says, USCIS was hit with a class action that challenged its use of the asylum EAD clock, and in November 2013 final approval was given to a settlement that provided critical relief to thousands of individuals. In particular, the settlement agreement allowed asylum seekers to qualify for and obtain employment authorization so they could support themselves and their families while awaiting adjudication of their asylum claims, the lawsuit relays.

Shortly after the settlement expired in May 2019, however, the defendants eliminated several of the safeguards put in place under the deal, the case states.  

The complaint specifies that the defendants, to date, have not restored the “critical safeguards” implemented under the 2013 class action settlement. 

“Consequently, Plaintiffs now challenge Defendants’ policies and practices that continue to unlawfully prevent them from working while their asylum and withholding claims are pending,” the suit reads, alleging USCIS and the Executive Office for Immigration Review have run afoul of the federal Immigration and Nationality Act. 

In particular, the plaintiffs challenge the defendants’ alleged practice of failing to provide notice and a meaningful opportunity to contest adverse decisions concerning their asylum EAD clocks and of failing to restart an asylum EAD clock and to credit time accrued in situations where an application has been denied but is under appeal.

The lawsuit looks to represent: 

“All noncitizens in the United States who have been or will be placed in removal proceedings; who filed or will file with Defendants a complete I-589 (Application for Asylum and Withholding of Removal); who would be eligible for employment authorization under 8 C.F.R. § 274a.12(c)(8) but for the fact that the asylum EAD clock was stopped or not started prior to 180 days; and whose asylum EAD clock determinations have been or will be made without written notice or a meaningful opportunity to contest such determinations.” 

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