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.
Receiving a two-year green card through marriage is an important step, but it leaves another process ahead: removing the conditions on permanent residence. For couples preparing a joint Form I-751 petition, understanding the filing window and organizing evidence early can make the preparation more manageable. The starting point is your own record. Locate the green card, the notice granting residence, and copies of the earlier immigration filing. Check the date conditional residence began and the card’s expiration date. Do not calculate the next deadline solely from your wedding anniversary or the date an attorney first submitted your case. Understand the joint filing window Under 8 CFR 216.4 , a joint I-751 petition generally must be filed during the 90-day period immediately before the second anniversary of obtaining conditional permanent residence. This is a window before that anniversary, not an additional 90 days after the card expires. Preparing early and filing early are different things. You can begin gathering records well before the window opens, while coordinating the correct submission date with your attorney. A joint petition also requires the appropriate signatures, fee, and supporting documentation. Confirm the current form instructions, accepted filing method, and applicable fee when the case is ready to submit. Build a record of the marriage over time The regulation identifies several types of evidence that may help show the marriage was not entered into to evade immigration law: jointly owned property, a lease for a shared home, combined financial resources, children’s birth certificates, and statements from people with personal knowledge of the relationship. These examples do not mean every couple must have a mortgage, joint accounts, or children. The evidence should accurately reflect your circumstances. A clear explanation of how you manage your household can be more useful than forcing your relationship into a checklist that does not fit. As a practical preparation step, organize records by date and type. Review whether they help explain the course of the marriage, rather than collecting only documents created shortly before filing. Flag separate addresses, name changes, or gaps in the records for your attorney. Never alter a document to make the history appear simpler. Tell your attorney if circumstances change This article addresses joint filing. Divorce, the death of a spouse, abuse, or other significant changes may require a different filing basis or an individualized assessment. Separate waiver provisions exist, with their own requirements. A spouse’s unwillingness to sign does not, by itself, establish eligibility for every waiver. Do not assume that the joint 90-day window answers every question about a non-joint case. If the relationship changes while preparing the petition or while it is pending, inform counsel promptly. You should not need to invent a continuing relationship to seek advice about the options that may actually apply. Keep tracking the case after submission The regulation provides that conditional resident status is automatically extended, when necessary, upon receipt of a properly filed I-751 until adjudication. Proof of that status is a separate practical matter: keep the receipt notice and have counsel review its wording before relying on it for travel or employment documentation. This article does not promise a particular receipt-extension period or processing time. A missed deadline calls for prompt legal attention. The regulation allows some late joint filings where USCIS accepts a written showing of good cause, but acceptance is not automatic. Do not assume a late petition cures the problem without further review. Santos Lloyd Law Firm, P.C. can help you assess the filing window, organize relevant evidence, and identify changes that may affect your I-751 strategy. Contact the firm early enough to review the facts before the deadline approaches.
October begins a new federal fiscal year, but that does not mean every green card applicant moves to the front of the line. The Department of State’s October 2026 Visa Bulletin sets out the visa availability that applicants in family-sponsored and employment-based preference categories need to review this month.
Santos Lloyd Law Firm takes great pride in announcing that Partner Flavia Santos Lloyd has been invited to join the Fellows of the American Bar Foundation. As a highly selective global network, the organization recognizes legal professionals across both the public and private sectors who embody the absolute highest standards of the practice. Admission to this distinguished group highlights Flavia’s outstanding legal career, professional integrity, and deep impact on the legal community. Our team celebrates Flavia on this well-deserved recognition!
