Can I Apply for Work Authorization while my Asylum Application is Pending?
Angelica Rice • February 11, 2022
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Each year, many people come to the United States seeking refuge from harm or persecution that they suffered in their home country. Those people apply for Asylum (Form I-589) either before USCIS or in removal proceedings before the Immigration Court.
A common question amongst all Asylum Applicants, no matter where they are applying, is can I obtain authorization to work while my Asylum application is pending?
As a result of a change in the law on August 25, 2020, for many Asylum Applicants, the answer to that question is NO.
However, there are some exceptions and circumstances where an Asylum Applicant may be eligible for and be granted work authorization while their Asylum case is pending. Read on to find out more.
You cannot apply for permission to work (employment authorization) in the United States at the same time you apply for asylum. You may apply for employment authorization 365 calendar days after you file your complete asylum application.
Due to a recent change in the Immigration Court’s case adjudication policies, Court’s are prioritizing the expeditious adjudication of immigration cases, especially for Respondent’s who entered the United States unlawfully on or after November 1, 2020. Many of those cases are being adjudicated within 1 year of the NTA being filed. This means that for most Asylum Applicants in Court, their cases will not be pending for 365 days and so they will not become eligible for work authorization.
If there is a delay in the adjudication of the Court case, that was not caused by you, or if an Applicant is applying for Asylum before USCIS, then you may be eligible to receive employment authorization based on a pending asylum application if:
- You entered the United States lawfully on or after Aug. 25, 2020 (under limited exceptions, you may still be eligible if you entered the United States unlawfully on or after Aug. 25, 2020);
- For asylum applications filed on or after Aug. 25, 2020, you filed your asylum application within one year from the date of your last arrival into the United States (alternatively, an asylum officer or immigration judge determined that you qualify for an exception to the one-year filing deadline, or you are an unaccompanied alien child on the date the asylum application was first filed);
- You appeared for any scheduled biometric services appointments related to your application for asylum or employment authorization;
- You appeared for your interview with a USCIS asylum officer, or your hearing before an immigration judge, if requested or scheduled;
- You are not described in 8 CFR 208.7(a)(1)(iii);
- You do not have an outstanding applicant-caused delay related to your asylum application when you file your initial application for employment authorization; and
- No final decision has been made on your asylum application (note that a referral to an immigration judge after an interview with USCIS is not a final decision).
If, on the date that your initial application for an employment authorization document (EAD) is filed, there is an unresolved delay in your asylum adjudication that you caused, your EAD request may be denied. Examples of these applicant-caused delays include, but are not limited to:
- Requesting to amend or supplement an asylum application and causing a delay in its adjudication or in proceedings;
- Failure to appear to receive and acknowledge receipt of the decision;
- Requesting to provide additional evidence for an interview, or requesting an extension to submit additional evidence less than 14 days before the interview date, and causing a delay in the asylum application adjudication;
- Failure to appear for an asylum interview, unless USCIS excuses you;
- Failure to appear for scheduled biometrics collection for the asylum application, unless USCIS excuses you;
- Requesting to reschedule an interview for a later date;
- Requesting to transfer a case to a new asylum office or interview location, including when the transfer is for a new address;
- Failure to use a USCIS contract interpreter or provide a competent interpreter at an interview; or
- Failure to comply with any other request needed to determine asylum eligibility.
*Certain criminal offenses or convictions will make you ineligible for an EAD.
If you have questions about work authorization eligibility through a pending Asylum application, please contact one of our experienced immigration attorneys.
This blog is not intended to be legal advice and nothing here should be construed as establishing an attorney client relationship. Please schedule a consultation with an immigration attorney before acting on any information read here.
Choosing the right recommenders is one of the most critical steps in building a successful O-1 visa petition. The standard for this visa is a high one, you must not only be an accomplished professional within your field but among the very top cadre of your peers. Reference letters serve as the connective tissue of an O-1 petition, transforming a dry list of accolades into a compelling narrative of extraordinary achievement. While awards and press clippings prove that you did something, reference letters provide the expert testimony necessary to explain why it mattered. In the eyes of USCIS, these letters function as evidence that contextualize your work within the broader industry, offering a level of nuance and credibility beyond the objective facts of your career journey. Without them, an adjudicating officer is left to interpret complex professional milestones in a vacuum; with them, you have a panel of qualified experts certifying that you are not just competent, but extraordinary and indispensable to your field. In short, they are the "voice" of your petition, validating your status as an individual of extraordinary ability. If you are beginning the process of identifying your recommenders, here are four essential qualities you should look for in a contact. 1. High Public Visibility In the eyes of USCIS, the status of the recommender often reflects the status of the applicant. USCIS officers will scrutinize every aspect of your petition, and this includes researching your references. If a recommender is someone who is easily recognizable due to an extensive public profile, especially due to their accomplishments, it makes it easier to verify that their opinion of you as a candidate should be given more weight and taken seriously. Look for individuals who have a "public profile." This could mean: They are frequently quoted in major media outlets. They have a significant social media following or industry-wide recognition. They have won major awards (Oscars, Grammys, Pulitzers, etc.) or hold prestigious titles. Their name is synonymous with success in your specific niche. When an officer sees a letterhead from a globally recognized entity or a signature from a famous figure, it immediately sets the tone that you are a candidate worth evaluating, and the words they have written on your behalf will weigh strongly on the officer’s decision. 2. Significant Accomplishment in the Field Your recommender should be an "expert" in their own right, whatever that means for your particular field. USCIS needs to know that the person praising you is actually qualified to evaluate your talent and knows the difference between someone who is merely accomplished in the field versus someone who has reached the pinnacle of their profession. Ideally, your contact should be more senior or more accomplished than you are. They should have a track record of success that is beyond reproach. However, they don't necessarily have to be in your exact job title. They can be in a related field, provided they are in a position to judge your work. For example, if you are a VFX Artist, a famous Film Director or a Senior Producer would be highly qualified to evaluate your contributions to a production. 3. A Deep Professional or Personal Connection One of the most common mistakes O-1 applicants make is chasing "big names" who don't actually know them. A generic letter from a celebrity who has never met you will likely be dismissed as "boilerplate." The strongest letters come from people who can speak to your work with specificity because they have worked directly with you in a professional context. You should look for contacts who know you through: An extensive personal history: Someone who has mentored you or followed your career trajectory for years, who can thus attest to your professional growth and elite trajectory over time. Direct collaboration: Someone who has worked alongside you in a professional context, and has witnessed your impact as a professional first hand because they were also directly invested in whatever project or goal you were working towards. This can also include peers you competed against, if you are an athlete. Your reference letters should describe specific instances where your skills and accomplishments shined through, or where you and your reference worked together towards meeting some goal. This level of detail comes naturally when your reference truly knows you as a professional because of a deep familiarity with your work or direct experience with you as a professional. 4. A Willingness to Advocate Zealously This is perhaps the most underrated quality in a recommender. You do not want a contact who is only willing to "confirm the facts." A letter that simply affirms facts and offers a standard affirmation of your skills and accomplishments will not convey to the officer that you are truly extraordinary. You should seek recommenders who are willing to be effusive. They should be prepared to use strong language—words like indispensable, unparalleled, world-class, and pioneer. This is a visa for exceptionally accomplished professionals, and for your references to be effective their words must convey to the officer that you are truly extraordinary. If a contact is hesitant to provide a glowing, high-energy recommendation, they may not be the right choice for this specific legal process. Final Thoughts The O-1 visa is a high bar, and your reference letters are the pillars that hold up your petition. By seeking the right qualities in your references, you can ensure that you will receive strong and impactful letters that will in turn help to maximize your chances of receiving an O-1 visa. At Santos Lloyd Law Firm, we pride ourselves on assisting our talented clients in every aspect of the O-1 visa process. If you are an exceptionally talented individual considering applying for an O-1 visa, please contact us today and we will be happy to guide you towards a successful outcome.
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