Process Work Authorizations If You Want More Workers!

10/21/21 Asylum

You can’t read a newspaper headline or scroll through your Twitter feed without mention of the current worker shortage facing us.  A lot of immigration advocates are shouting into the wind, “Hey, what about immigrants?”  There are a variety of ways to have enough eager workers to fill our labor needs, with one group in particular who are already here and could begin working with just a little bit of regulatory fortitude: asylum seekers.  Instead, they are faced with a laundry list of draconian roadblocks which hurts the asylum seeker and the employers who need them.

What’s the holdup? There is a current Employment Authorization Document (EAD) crisis overall at U.S. Citizenship and Immigration Services (USCIS).  There are massive delays that are devastating families and Dreamers while also disrupting businesses, which could be an entire series of blog posts on its own. But for this blog post, we’ll focus on asylum seekers, who, in addition to substantial delays in receiving EADs that has led to job losses, are faced with an intentionally cruel set of standards imposed by the Trump administration which the Biden administration has shown no signs of wanting to change and has even ratified in one instance.

Much like border policies such as the misnamed Migrant Protection Protocols (MPP) and the “not an immigration  policy” Title 42, severely restricting EADs for asylum seekers is a punitive measure to dissuade migrants from pursuing their right to seek asylum.  Ostensibly, these restrictions are portrayed as policies to prevent suggested widespread abuse of the asylum system to get work authorization. However, the effect is to increase the hardships of people in already precarious situations and does nothing to prevent bad actors from seeking work authorization through filing an asylum application.  Some of the larger changes include:

  • Changes the wait time to apply for a work permit from 180 days to 365 days
  • Restricts most applications from migrants who applied for asylum more than one year after entry into the U.S.
  • Nullifies the government’s requirement to adjudicate asylum EADs within 30 days

These dramatic changes are unnecessarily harsh and devastating to those who fled countries seeking safety and security.  When you look deeper into the new measures, it somehow gets even worse.  Those who enter without inspection and don’t claim fear to the Department of Homeland Security (DHS) within 48 hours are ineligible.   If the asylum seeker does anything to delay their case, which can mean something as simple as not accepting an expedited hearing when they are not prepared, they can have their EAD application denied. If they have the audacity to ask for an in-person hearing instead of a virtual one, their eligibility for an EAD can be denied too. If their interpreter at their asylum interview turns out to be incompetent, it can jeopardize their EAD application.  If they move and wish to change venues so they can work with local counsel, this also can cost them a work permit.  If an applicant’s initial EAD application is adjudicated following a denial by an Immigration Judge, even if they have a pending Board of Immigration Appeals (BIA) appeal, they will be denied.

These EAD restrictions are coupled with policies intended to speed applicants through the asylum process before they can be eligible for a work permit.  This is the entire point of measures such as last in, first out (LIFO) which has been adopted by the majority of asylum offices.  The idea is that if the asylum offices schedule the most recent applicants first, this will dissuade individuals from applying for asylum solely to get a work permit.  As a former asylum officer, I can confirm that there are notarios and other bad actors who take advantage of immigrants’ desperation and file asylum applications solely so they can tell their clients that they got them a work permit.  What I can also confirm is most of those immigrants have no idea what they even applied for and are essentially scammed into being placed into removal proceedings.  Targeting these bad actors should be the emphasis of any policy to reduce meritless claims for work permit purposes, not punishing those who have been waiting years for their asylum claim to be heard.  LIFO has created a devastating backlog which leaves lives in limbo and legitimate asylum seekers separated from their family members abroad, many of whom are in danger themselves.

Despite all these measures, it turns out that people who fear for their lives will continue to apply for asylum.  The immigration court and affirmative asylum backlogs continue to grow. Fortunately, some of these measures were enjoined by the heroic efforts of nonprofits like CASA and ASAP, and anyone representing asylum seekers should check to see if registering with one of those organizations can mitigate some of the damage from asylum EAD restrictions.

Perhaps the most frustrating aspect of this issue is that this is an example of the broken promise of the Biden administration to create a more humane asylum system.  They have a number of regulatory and legal mechanisms to immediately change the asylum EAD process for the better, but are choosing deterrence once again instead.  Every time you see a “now hiring” sign or read an article where business owners claim no one wants to work anymore, remember there are thousands of people who are desperate to work but can’t do so because the Biden administration prioritizes deterrence over humanitarian policy objectives.

by Emily Haverkamp