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Asylum Clock

Last Updated: 
Wed, Feb 05, 2014

Attorneys and asylum applicants across the country regularly experience problems with the “asylum clock” — a clock which measures the 150 days after an applicant files an asylum application before the applicant can apply for an employment authorization document (EAD). These problems include a lack of clear guidance about how immigration agencies - both EOIR and USCIS - should interpret and implement the law governing the clock, the lack of a formal review process when an EAD is denied, and a general lack of transparency in USCIS’ administration of the clock. As a result of these problems and increasing court backlogs, asylum applicants often wait much longer than the legally permitted timeframe to receive a work permit and are thus unable to support themselves and their families while their applications are pending.

The LAC has long advised attorneys about methods for addressing asylum clock problems and advocated for systemic change in the current asylum clock process. These efforts included the issuance, in 2010, of a comprehensive report on the asylum clock, Up Against the Clock:  Fixing the Broken Employment Authorization Asylum Clock, with Penn State Law School’s Center for Immigrants’ Rights. The report recommends solutions to asylum clock problems intended to ensure that asylum applicants become eligible for employment authorization without unnecessary delays and closer to the timeframe outlined in the INA.

On December 15, 2011, after advocacy efforts proved unsuccessful, the LAC and litigation partners filed a case now called B.H., et al. v. U.S. Citizenship and Immigration Services, et al. (but originally called A.B.T. v. U.S. Citizenship and Immigration Services), a nationwide class action lawsuit against USCIS and EOIR challenging asylum clock policies and practices.  As discussed below, the parties have reached a settlement agreement in this class action.

CASES | ADVOCACY | RESOURCES l BLOGS

CASES

B.H., et al. v. U.S. Citizenship and Immigration Services, et al., No. 11-02108 (W.D. Wash. filed December 15, 2011) (originally called A.B.T. v. U.S. Citizenship and Immigration Services, et al.)

The complaint, co-filed with the Northwest Immigrants Rights Project, Gibbs Houston Pauw, and the Massachusetts Law Reform Institute, was submitted on behalf of untold numbers of asylum applicants wrongfully denied work authorization due to unlawful agency policies and practices. The named plaintiffs include asylum seekers who have pursued their cases for years without work authorization.

In their amended complaint, Plaintiffs and the class challenge as unlawful five of defendants’ policies and practices which either prevent or seriously delay the receipt of an EAD by asylum applicants while their asylum applications are pending. Plaintiffs allege defendants’ policies and practices violate the U.S. Constitution, the Immigration and Nationality Act (INA), the governing regulations, and the Administrative Procedure Act (APA). Soon after filing the complaint, Plaintiffs moved for class certification and for a protective order to prevent public release of the named plaintiffs’ names and other identifying information.  The Court granted the protective order, but delayed ruling on the class certification motion.

In July, 2012, the Court granted the parties’ request to enter into the Court’s mediation program and stayed proceedings while mediation took place. The parties participated in continuing mediation until April, 2013, when they reached a comprehensive settlement agreement, including agreement on class certification. Under the settlement, USCIS and EOIR will make several important changes to the method by which USCIS and EOIR calculate the 180-day waiting period for EAD eligibility for asylum applicants (often referred to as the “asylum clock”). The Court issued an order that approved the agreement on a preliminary basis and directed the parties to notify class members of its terms. The Notice to Class Members describes the ABT class, the benefits provided to class members, and the process for claiming that the settlement was not properly implemented in a case. This notice, as well as a “Frequently Asked Questions” about the settlement, can be found below. The Court also scheduled a fairness hearing for September, 2013.

On September 20, 2013, the District Court for the Western District of Washington held a fairness hearing and preliminarily approved the parties’ settlement agreement. Prior to the hearing, the parties addressed the sole response received to the Class Notice by slightly revising the agreement. The Court ordered an additional 30-day notice period for class members to review the revised settlement agreement and supplemental class notice regarding attorney’s fees.

On October 30, following the 30-day notice period, the parties filed a joint proposed Order for final approval of the settlement agreement. Additionally, the government filed an unopposed motion to extend the implementation date of the settlement from November 8 until December 3 due to the government shutdown in October. On November 4, the District Court issued an Order approving the revised settlement agreement and also granted the government’s motion to extend implementation of the settlement until December 3, 2013.

ADVOCACY

Testimony to the Senate Committee on the Judiciary Hearing on “Improving Efficiency and Ensuring Justice in the Immigration Court System” (May 25, 2011 ) (highlighting problems with the current asylum clock system and referring the Committee to the recommendations in the report, Up Against the Clock: Fixing the Broken Employment Authorization Asylum Clock)

Response to the Department of Homeland Security’s request for comments in connection with a review of existing regulations: Docket No. DHS-2011-0015 - Reducing Regulatory Burden; Retrospective Review Under Executive Order 13563, 76 Fed. Reg. 13526 (Mar. 14, 2011) (submitted April 13, 2011) (requesting that DHS expand existing regulations to clarify the types of delays that justify stopping the asylum clock and to distinguish the asylum clock from EOIR’s asylum adjudication clock)

Response to the Department of Justice’s request for comments in connection with a review of existing regulations: OLP Docket No. 150 - Reducing Regulatory Burden; Retrospective Review under Executive Order 13563, 76 Fed. Reg. 11163 (Mar. 1, 2011) (submitted March 31, 2011) (requesting that DOJ consider regulatory amendments that would remedy EAD asylum clock problems)

LAC and Penn State Law School’s Center for Immigrants’ Rights Report: Up Against the Clock: Fixing the Broken Employment Authorization Asylum Clock (Feb. 2010)

LAC and Penn State Law School’s Center for Immigrants’ Rights Press Release: New Report on Asylum Work Authorization “Clock” Released: Broken Asylum Clock Prevents Asylum Applicants from Working

RESOURCES

Memorandum from the U.S. Department of Justice, Operating Policies and Procedures Memorandum 13-03: Guidelines for Implementation of the ABT Settlement Agreement (Dec. 2, 2013)

Memorandum from the U.S. Department of Justice, Operating Policies and Procedures Memorandum 13-02: The Asylum Clock (Dec. 2, 2013)

Memorandum from U.S. Citizenship and Immigration Service, Issuance of Revised Procedures Regarding Failure to Appear and Reschedule Requests (Oct. 17, 2013)

Memorandum from U.S. Citizenship and Immigration Service, Application of the "Exceptional Circumstances" Standard in Cases Where an Applicant has Failed to Appear for an Asylum Interview (Oct. 17, 2013)

LAC practice advisory: Employment Authorization and Asylum: Strategies to Avoid Stopping the Asylum Clock (February 5, 2014). This practice advisory provides an overview of the work authorization process for asylum applicants, addresses the operation of the “asylum clock,” which is used to track the 180-day waiting period during which an applicant cannot apply for work authorization, and discusses possible solutions to several common asylum clock problems.

The Legal Action Center's comments on EOIR's new guidance on Asylum Clock:  New Asylum Clock Policies Provide No Significant Systemic Change (Nov. 21, 2011)

U.S. Citizenship and Immigration Services Ombudsman, Employment Authorization for Asylum Applicants: Recommendations to Improve Coordination and Communication (Aug. 26, 2011)

Memorandum from Chief Immigration Judge, Brian O’Leary, Operating Policies and Procedures Memorandum 11-02: The Asylum Clock (Nov, 15, 2011)

Memorandum from the Office of the Chief Immigration Judge, Operating Policies and Procedures Memorandum 05-07: Definitions and Use of Adjournment, Call-up and Case Identification Codes (June 16, 2005)

Memorandum from Chief Immigration Judge, Michael J. Creppy, Revised Operating Policy and Procedures Memorandum No. 00-01, Asylum Request Processing (August 4, 2000)

 BLOGS AT IMMIGRATION IMPACT

Give Me Your Tired, Your Poor, Your Huddled Masses … But Don’t Let Them Work? (September 21, 2011)

New Report Provides Solutions to Broken Asylum Employment Authorization Clock (February 12. 2010)