SC on Stop-Time Rule
SC on Stop-Time Rule
Question: I have applied for asylum over two years ago and my work-permit has still not arrived. I am desperate and cannot get a job. The Court says that the ‘clock has stopped’ and I am not eligible. What exactly is the ‘clock’ and how does it affect me?
Answer: Applicants for asylum in the United States are not immediately or automatically granted employment authorization. Before receiving an employment authorization document (EAD), an asylum applicant must wait for a final grant of asylum or for an application to remain pending for 180 days according to the “asylum clock.”
A general lack of transparency plagues the administration of the asylum clock. Immigration judges (IJ’s) and asylum officers (AO’s) often fail to inform the noncitizen of the determination to stop the clock.
Asylum applicants who are unaware that the IJ has stopped the clock may discover these fact weeks or sometimes months later when the DHS denies their application for employment authorization.
Sometimes the Immigration Court (EOIR) improperly determines that the applicant for asylum caused the delay. Another problem involves restarting the asylum clock.
Implementation problems occur when the IJ stops the clock contrary to EOIR policy.
However, IJ’s are improperly stopping the clock, finding that the applicant for asylum is the cause for the delay. This is incorrect.
Question: Is there only one asylum clock?
Answer: No. There are actually two asylum clocks.
1) The Asylum Adjudication clock: The asylum adjudication clock measures the number of days an asylum application has been pending adjudication.
2) The Asylum EAD clock: The asylum EAD clock also measures the number of days after submission of an asylum application that must elapse before the applicant may be provided an EAD.
Different events may stop either the asylum adjudications clock or both the asylum adjudications clock and asylum EAD clock.
Question: How does the Asylum EAD Clock affect work authorization?
Answer: The clock starts on the date that the applicant submits a complete asylum application. Once the asylum EAD clock reaches 150 days, the asylum applicant may apply for an EAD.
An asylum officer may grant, deny, refer or dismiss an asylum application. Only a denial of an asylum application makes the applicant ineligible for an EAD. A referral to the immigration court by an asylum officer is not a denial.
After the applicant has filed an application for an EAD, the U.S. Citizenship and Immigration Services (CIS) has 30 days from the date of the filing to grant or deny the EAD application. CIS cannot grant the application before the asylum clock has reached 180 days after the initial filing of the asylum application.
The regulations state that “(a) n applicant whose asylum application has been denied by an asylum officer or by an immigration judge within the 150-day period shall not be eligible to apply for employment authorization.”
In addition, the regulations say that if an asylum application is denied while an application for employment authorization is pending with the CIS, the employment authorization application will be denied.
However, respondents who have received an EAD and later appeal a denial of asylum may continue to renew their EAD throughout administrative and judicial review.
The EAD is renewable during the appeals process, including judicial review.
Question: How is the asylum EAD clock stopped?
Answer: The regulations provide only a limited number of examples of what constitutes an applicant caused delay. By regulation, “delays caused by failure without good cause to follow the requirements for fingerprint processing” stop the clock.