Court Nullifies Rules that Limit Work Permits for Asylum Seekers


A federal judge ruled on Feb. 7, 2022, in favor of plaintiffs who sought to vacate two rules limiting asylum seekers’ access to employment authorization documents.

Asylum may be granted if a person can show a fear of persecution based on race, nationality, religion, political opinion, or affiliation with a particular social group.

Asylum Advocates Gets Summary Judgment

Three nonprofit organizations and 18 asylum seekers asserted that the rules are void because Chad Wolf was not lawfully serving as Acting Secretary of Homeland Security. Chief Judge Beryl A. Howell of the U.S. District Court for the District of Columbia agreed in granting the motion for summary judgment.

A summary judgment is granted when the facts can be decided without the need for a trial because the opposing party would lose due to lack of evidence.

The rules vacated in the decision are the Timeline Repeal Rule and the EAD (Employment Authorization) Bar Rule. Both rules went into effect in August 2020.

Timeline Repeal Rule

The Timeline Repeal Rule eliminated the regulatory provision requiring the U.S. Citizenship and Immigration Services (USCIS) to grant or deny an asylum applicant’s Form I-765 (EAD application) within 30 days of being filed. The rule also erased the requirement that all employment authorization renewal requests be received by the USCIS at least 90 days prior to their expiration.

EAD Bar Rule

The stated purpose of the EAD Bar Rule was to disincentivize noncitizens from filing “frivolous, fraudulent, or otherwise non-meritorious asylum applications” to obtain employment authorization.

The rule made the following changes:

  • Noncitizens were ineligible for a work permit if they entered or attempted to enter the U.S. at any place other than lawfully through a U.S. port of entry.
  • If the person entered somewhere other than an official port of entry, they could maintain eligibility if they presented themselves within 48 hours to the Secretary of Homeland Security (or their delegate); indicated to a DHS agent their intent to apply for asylum because of persecution or torture; or otherwise had a good cause for an illegal entry.
  • Anyone who does not file their asylum applications within one year of arrival in the U.S. will be ineligible for work authorization.
  • Noncitizens with certain criminal offenses such as felonies in the U.S. or serious non-political crimes in another country are denied EAD eligibility.
  • If an applicant requests a delay of their asylum hearing, the lack of adjudication will result in the denial of the EAD application.

The EAD Bar Rule also extended the waiting period before an applicant could request work authorization from 150 days to 1 year.

An Invalid Secretary Cannot Make Valid Asylum Rules

Like many court rulings, the decision is not an indictment or validation of the rules themselves. Instead, the judge evaluates factors beyond the merits of the rules. In her memorandum opinion, Judge Howell wrote that five other district courts across the nation and another judge for the U.S. District Court for the District of Columbia all previously concluded that Chad Wolf’s appointment as Acting Secretary was invalid. She agreed with their assessment.

The plaintiffs asserted that this appointment violated the following:

  • Appointments Clause
  • Administrative Procedure Act
  • Federal Vacancies Reform Act
  • Homeland Security Act
  • Internal Governance for Line of Succession

Eliminating these rules will hopefully result in applications being processed more quickly in the future.

Seasoned Legal Counsel for Asylum Seekers

Rules and policies regarding asylum and other immigration matters can change. If you face persecution and want a better life in the U.S., contact our attorneys at Nathan Christensen P.C. We have helped hundreds of families throughout the world achieve their dreams of immigrating to the U.S.

The U.S. immigration system is profoundly complex. Our empathetic and personalized attention can help guide you through every step of the process.

Begin the immigration journey with a free initial consultation. Schedule an appointment by calling (972) 497-1017 or submitting our online form.

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