EOIR Issues Policy Memo on Operating Procedures around Asylum EAD Clock
As background, if an asylum application is not decided within 180 days, the U.S. Citizenship and Immigration Services (USCIS) may provide employment authorization to the asylum applicant. The running of this 180-day waiting period is known as the “Asylum EAD Clock.” If an asylum applicant causes any delay in their case, then the 180-day clock stops running. Whether an applicant has caused a delay often requires a nuanced analysis.
On September 26, 2024, the district court in Garcia Perez, et al. v. USCIS, et al., No. 2:22-cv-00806-JHC (W.D. Wash.), granted final approval of a nationwide settlement agreement requiring the Executive Office for Immigration Review (EOIR) and USCIS to change certain policies and practices for administering the Asylum EAD Clock. On December 19, 2024, EOIR issued a memo on Operating Policies and Procedures around the Asylum EAD Clock in Immigration Court proceedings that provides further guidance and outlines significant policy changes, including:
- • Individuals represented by attorneys and accredited representatives can determine when and for what reasons their Asylum EAD Clocks have been stopped through EOIR Courts & Appeals System (ECAS). Individuals without an attorney can obtain a printout of their case-specific history relating to the 180-day Asylum EAD Clock by making an in-person, oral request to EOIR personnel or by submitting a written request;
- • Individuals who have submitted affirmative asylum applications to USCIS will be able to use USCIS’s automated Case Status Online Tool (CSOL Tool) to determine whether their Asylum EAD Clock is stopped as a result of an applicant-caused delay;
- • Asylum applicants can challenge their Asylum EAD Clock status either in writing or orally at an immigration court proceeding;
- • If an asylum applicant appeals to the BIA or a U.S. Court of Appeals and their case is then remanded, USCIS and EOIR will credit the Asylum EAD Clock with the time accrued during the BIA appeal or petition for review;
- • When an IJ grants a motion to reopen, the IJ has the choice of giving credit to the passage of time on the clock, or starting it anew, or leaving it stopped;
- • A change of venue (moving from one immigration court to another) does not stop the Asylum EAD Clock in cases pending before EOIR, and in fact will restart a stopped clock.
Overall, these changes make it easier for asylum applicants to get information about their Asylum EAD Clock status and to contest the stoppage if they believe the agency incorrectly stopped the clock in their case.
The full memo is available here.