Arizona Immigration Assistance: Simplifying Employment Authorization
The previous “work permit clock” began to run on the date an immigrant filed her asylum application with the immigration court. Immigrants had 150 days from this date to file for an EAD and the U.S. Citizenship and Immigration Service (USCIS) had 30 days to approve it.
Currently, this has slowed to a crawl, with EADs taking up to 11 months longer even when applying 365 days after filing for asylum. This article discusses exceptions. Diamondback Legal is an Arizona immigration law firm dedicated to helping immigrants obtain and renew their EADs.
What is an Employment Authorization Document (EAD)
To many immigrants, a work permit is more important than a green card. Depending on your state of residence, an employment authorization document is necessary to:
- Work “legally” for purposes of I-9 E-Verify
- Get a state driver’s license from the Department of Motor Vehicles
- Obtain a social security number from the Social Security Administration
- Begin filing taxes using the social security number
Many people have found a workaround by obtaining an Individual Taxpayer Identification Number (ITIN) to start their own businesses without a social security number. But they feel safer with an employment authorization document and a driver’s license because those are two important types of photo identification.
How Long Is the Wait for Work Authorization in Arizona
Immigrants in deportation proceedings before an immigration judge (IJ) at the Executive Office for Immigration Review (EOIR) should file for EADs 365 days after applying for asylum. There are also ways to get an employment authorization document with a pending asylum application within 180 days. That is 150 days from the date of filing at USCIS or in court and 30 days for USCIS to approve the application.
Despite multiple class action lawsuits fighting the newly imposed 365-day wait time, this became the new standard in August 2020 with a few notable exceptions. Other delays caused by the pandemic, changes in filing addresses, and USCIS staffing resulted in extra-long waits for initial EAD filings and EAD renewals.
EAD Eligibility for Asylum-Seekers or Category C(8) in Arizona
USCIS issues EADs pursuant to Title 8 of the Code of Federal Regulations Section 274(a)(12) (8 CFR §274(a)(12)). The EAD application is filed on Form I-765 with USCIS and must include the following documents:
- Two 2X2 passport-size photos
- G-28 Attorney’s Notice of Representation
- $410 filing fee plus $85 biometric fee
- Proof of asylum filing (court’s date-stamped copy or hearing notice)
- Copy of passport or ID from the country of origin
- Evidence of membership in certain class actions (discussed below)
Send this packet to the correct “service center” address using certified mail with a return receipt. An EAD asylum attorney in Arizona can help. If you do not show up to fingerprint at your scheduled biometrics appointment or reschedule an asylum interview with a USCIS officer, the applicant bears the blame and consequent delay in employment authorization document processing.
Once you attend the first scheduled master calendar hearing before an IJ, certain “applicant-caused” delays in the EOIR will likewise “stop” the clock, meaning it will take longer to reach the required 365 days. Some examples include:
- Requests for change of venue
- Continuance to get an attorney
- Missed biometrics appointment
- Declining an expedited hearing
- Requests to supplement asylum application
Asylum applications are filed on Form I-589 Application for Asylum and Withholding of Removal with USCIS. The date of filing with USCIS will serve as the “filing date” for purposes of the one-year EAD deadline. Ideally, Form I-589 should also be filed within one year of entering the U.S. although this rarely happens.
This is known as the “one-year filing deadline” for asylum. This is not to be confused with the 365-day wait to apply for an EAD based on a pending asylum. USCIS transfers all I-589 applications filed after one year to court or EOIR. An Arizona immigration law firm is critical to finding an exception to the deadline and keeping the asylum work permit clock running.
Appearance Before an IJ in Immigration Court (EOIR)
The Department of Homeland Security (DHS) will issue a Notice to Appear (NTA) in court. You must appear at this hearing or be ordered deported in your absence. When DHS files the NTA with the court, the agency commences removal proceedings against you. If you try to file for asylum with USCIS 22 days after DHS filed the NTA with the EOIR, USCIS will reject and return the I-589. The EAD clock will start over. Alternatively, if DHS has not yet filed the NTA, USCIS will refer Form I-589 to the EOIR. To confirm a proper referral from USCIS to EOIR you can check your USCIS case status online.
If you do not yet have an Arizona immigration attorney, the IJ must provide you with a pro-bono list of local immigration lawyers. You cannot miss any hearing because deportations in absentia require motions to reopen. If for any reason you move or are unrepresented (hearing notices are sent to you rather than your law firm), you may miss a hearing notice and thus get deported.
If you move while waiting for an “interview” on your asylum application with a USCIS officer, notify the agency using Form AR-11. You can submit this online. If you are before an IJ in court, immediately notify the court using Form EOIR-33/IC. Serve the court and DHS with copies.
CASA and ASAP Membership Allow EADs after 150 Days
The Asylum Seeker Advocacy Project (ASAP) and CASA de Maryland are two organizations that challenged the new EAD regulations in federal court. On September 11, 2020, in CASA v. Wolf, a district court judge enjoined the government from implementing the more stringent 365-day wait to file Form I-765. CASA and ASAP bestow the following benefits on members:
- Eligibility for EADs after 180, not 365, days
- Free membership for ASAP and $35 annual fee for CASA
- Eligibility to apply for asylum and EAD over one year after entering the U.S.
- The exception to the normal $85 biometrics fee (the $495 filing fee still applies)
- Bar to USCIS discretionary denials of I-765
- ASAP alerts and updates on membership status
Both groups are relatively easy to join. USCIS asks that immigrants or their representatives attach proof of ASAP or CASA membership immediately after Form I-765. Minors seeking asylum must be at least 14 years old to apply for ASAP membership, but both programs allow children under 21 to join through a member parent by showing the child’s birth certificate.
EAD Processing for Rosario Class Action Members
On February 7, 2022, Asylumworks v. Mayorkas set aside the Timeline Repeal Rule allowing USCIS over 30 days to adjudicate EAD applications. Instead, USCIS has 30 days to process EADs for class members under Rosario v. USCIS. To prove eligibility, Rosario class members must show:
- This is their initial Form I-765
- The initial Form I-765 is still pending
- Form I-765 and I-589 were filed and pending for 150 days
- They made a case status inquiry through USCIS eRequest
- After 25 days while the I-765 is pending
- They received no response to the status eRequest or phone inquiry within 8 days (after the I-765 has been pending for 175 days)
If USCIS has failed to take action within these “normal processing times,” you must first call the USCIS Contact Center at (800) 375-5283 and provide the following:
- Form I-765 receipt number (top of page)
- Alien registration number (A-Number)
- Receipt date on Form I-797 Notice of Action
Using this information, USCIS will create a service request number that appears on your case status page. Only after calling the contact center or submitting an online eRequest may applicants email the USCIS Texas Service Center (TSC) at [email protected] for further assistance. The email must meet the following criteria:
- Type “Rosario Class Action” in the subject line
- Copy class action counsel by typing [email protected] on the CC line
- Include your name and information solely related to Rosario’s class membership:
- Service request number
- Date the contact center created the request
- Form I-765 receipt number
- I-797 Notice of Action receipt date
Note that the I-797 notice shows the date USCIS received Form I-765 with the required fee. Because of inordinately long wait times following the pandemic, some I-797s contain information automatically extending the validity of C(8) EADs—valid for two years—by 540 days. However, taking all these steps does not guarantee a finding that USCIS processes the EAD “outside normal processing times.” A local EAD law firm in Phoenix, Arizona can help.
Bars to EAD Eligibility
The August 2020 work permit regulations bar certain categories of asylum seekers from getting EADs. They may still file for asylum using Form I-589 but will not get work permits based on the application if they:
- Entered the U.S. Without Inspection (EWI) unless they
- Turned themselves into DHS 48 hours after EWI
- Told DHS they intend to apply for asylum or expressed fear of persecution
- Except for Migrant Protection Protocols (MPP or “remain in Mexico” policy) otherwise, explain “good cause” to EWI
- Filed for asylum (I-589) past the one-year filing deadline (except ASAP and CASA):
- After August 25, 2020, unless an IJ excuses the deadline (at the last hearing)
- Qualify as an unaccompanied child (UAC) under 18 when I-589 was first filed
- Were convicted of certain “aggravated felonies” or “particularly serious” crimes under immigration—not state or federal—law. Applicants must then include evidence of:
- Certified arrest report and final disposition of conviction in any country
- Criminal charges or indictments for any reason in any country
- Completion of alternative sentencing or rehabilitation program
- Vacated, sealed, expunged, or removed arrests and convictions
Alternatively, applicants “paroled into” the United States for a temporary period for “humanitarian reasons” or because of a “significant public benefit” may apply for an EAD using a copy of the I-94 issued upon release from immigration detention (available online).
The EAD category for parolees is C(11) rather than C(8) and only lasts until the temporary parole period ends, not two years. Immigration and Customs Enforcement (ICE) is unlikely to renew parole-based EADs. Evaluate whether to file a C(8) EAD for pending asylums with an experienced Arizona immigration attorney.
Contact the Immigration Lawyers at Diamondback Legal Today in Arizona
Navigating the complexities of the EAD process can be challenging. If you have a serious crime, the intersection between criminal and immigration law can also be tricky. Because EADs are based upon attendance at removal proceedings, IJs will suggest you contact a skilled attorney to represent your interests. Diamondback Legal provides diligent and aggressive immigration defense in Phoenix, Arizona. Call (602) 584-8938 or contact us online for a consultation.
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