3/19/2014
Clocking in:
Work Authorization for Asylum
Seekers
Vanessa Allyn
March 26, 2014
Zero Hour:
Before and after the creation of the Clock
• Pre-Reform Cases (filed prior to January 4, 1995)
– Concurrent EAD filing with I-589 was allowed
• Creation of the EAD Clock: 1994
– 150 days + 30 days processing time (180 days)
– 8 C.F.R. 208.7(a)(1)
• Codification of the EAD Clock: 1996
– Immigration & Nationality Act (INA) § 208(d)(2)
Curtailing Clock Confusion:
Clock, Clock, and more “KLOK”
• There are technically two “clocks” in asylum cases:
– The Adjudications clock, (INA) § 208(d)(5)(A)(iii)
– The Work authorization clock (EAD Clock),
INA § 208(d)(2)
Wait: what do they mean by “KLOK?”
refers to the screen in RAPS
(Refugee, Asylum, and Parole System)
that tracks the 180 EAD clock for USCIS
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Eligibility: Can my client Clock in or not?
• Is your asylum seeking client eligible to apply for an
EAD?
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150 (+30) day waiting period
No Aggravated felonies
Filing of complete asylum application
No final asylum denial at the time of I-765 application
No Withholding and CAT only cases
No failure to appear without “exceptional circumstances”
When does the Clock start?
• After you have filed a “complete” asylum application with
the correct USCIS Service Center
• After you have filed an asylum application with an
Immigration Judge in open court
• After you have “lodged” an asylum application at an
Immigration Court window
WARNING:
lodging does not count for purposes of the One Year
Filing Deadline
When does the Clock Stop?
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“Applicant Caused Delay”
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Failure to provide biometrics
Reschedule request(s)
Requests to provide additional evidence
Moving to another jurisdiction
Failure to appear for interview
Interpreter issues
Failure to appear for decision service (permanent stop)
Any other delay that is attributable to the applicant
“Respondent Caused Delay”
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Request for continuance
Declining an “expedited” merits hearing date
Declining the first-offered merits hearing date
Motion for change of venue
Contesting the charges in the Notice to Appear
Filing for an alternative/additional form of relief
Mentioning the need to “supplement” the record
Any other delay that is attributable to the Respondent
The Effect of Adjudicator Decisions on Clock
Status
• The clock stops when USCIS issues a final denial on an
affirmative case
– NOID vs. Final Denial vs. Referral
• The clock stops when an immigration judge denies
asylum at the conclusion of proceedings
• The clock starts again when a case is remanded to the
immigration court after appeal
• The clock stops if a case is administratively closed due
to prosecutorial discretion
– 180+ days is enough to continue to be EAD eligible
– AAO decision (although not technically binding)
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3/19/2014
B.H., et al. v. USCIS, et al., 2013
A.K.A. “The Class Action,” “The ABT Case,” or
“The Settlement Agreement”
• Filed in December 2011 by the Legal Action Center
(LAC) of the American Immigration Council, the
Northwest Immigrant Rights Project (NWIRP), Gibbs
Houston Pauw, and the Massachusetts Law Reform
Institute
• A nationwide class action that challenged the manner in
which USCIS and EOIR determine an asylum applicant’s
eligibility for work authorization
• The settlement agreement took effect on December 3,
2014
What did the Settlement try to fix?
• Permanent stoppage of the clock after a missed asylum
interview, without adequate notice or opportunity to
respond
• The permanent stop of the clock after a denial in
immigration court, even after a case was successfully
appealed and remanded
• Insufficient time to prepare an asylum case that is on the
“expedited” calendar
• Insufficient notice to respondents in court of the impact
that adjournments can have on the EAD clock.
• Filing of applications in open court only, as well as lack
of consistency among Ijs and clock decisions
Who Do I contact about Clock Problems in the
Defensive process?
• Do not send clock motions to the immigration judge
– Actually, don’t even try to talk to an immigration judge about the
clock if you aren’t standing in open court. If you are in open
court, argue away! 
• Do contact the court administrator for any issues that
you have with the clock.
• If you can’t get resolution by contacting the court
administrator, contact the ACIJ that oversees your court
in writing.
• If your case is on appeal to the BIA and you have a clock
problem, you should contact the EOIR Office of General
Counsel (in writing).
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3/19/2014
Who Do I contact about Clock Problems in the
Affirmative process?
How do I find out how many days are on the
Clock?
• Warning: you cannot rely on the Automated Status
Query (ASQ) system at 800-898-7180 anymore
• If you call the National Customer Service Center (NCSC)
at 800-375-5283, they cannot give you information
regarding an asylum case.
• You should do your best to calculate the days yourself,
or hope that you can get a “count” from the asylum office
EAD POC or the immigration court.
How do I file for an EAD based on a pending
asylum application?
• Start with Form I-765, available at:
http://www.uscis.gov/i-765
• No filing fee for the first EAD based on a
pending asylum application
• Use category (c)(8) for question 16
• Supply proof that the application is pending
• Receipt notice
• Copy of I-589
• Hearing notices
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Practice Advisories & How to File an ABT
Claim
• American Immigration Council (AIC) Asylum Clock Page:
http://www.legalactioncenter.org/litigation/asylum-clock
• ABT Claim form for both USCIS and EOIR:
http://legalactioncenter.org/sites/default/files/ABT%20Cla
im%20Form.pdf
• AIC February 2014 Clock Advisory:
http://www.americanimmigrationcouncil.org/practiceadvisories/employment-authorization-and-asylumstrategies-avoid-stopping-asylum-clock-0
Government Guidance and Memos
• EOIR Guidance on the Clock, post-settlement:
– OPPM 13-03 and 13-04 (2013)
http://www.justice.gov/eoir/efoia/ocij/OPPMLG2.htm
– Immigration Court Practice Manual:
http://www.justice.gov/eoir/vll/OCIJPracManual/ocij_page1.htm
• USCIS Guidance on the Clock, post-settlement (2013):
– http://www.uscis.gov/humanitarian/refugees-asylum/asylum/howagreement-affects-adjudication-asylum-and-ead-applications
– Affirmative Asylum Procedures Manual (2013):
http://www.uscis.gov/humanitarian/refugeesasylum/asylum/affirmative-asylum-process
Reports On the Asylum Clock
• “Up Against the Clock,” Penn State/American
Immigration Council (2010)
– http://www.legalactioncenter.org/sites/default/files/docs/lac/Asylu
m_Clock_Paper.pdf
• "At Least Let Them Work,“ Human Rights Watch
– The Denial of Work Authorization and Assistance for Asylum
Seekers in the United States (2013),
http://www.hrw.org/reports/2013/11/12/least-let-them-work
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Questions?
(who knows if there are answers, but we can certainly try!)
My contact information:
Vanessa Allyn
[email protected]
(202) 370-3303
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