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.
U.S. Citizenship and Immigration Services (USCIS) has announced a major change to the H-1B cap selection process. Under a final rule issued on December 29, 2025, USCIS will replace the long-standing random H-1B lottery with a wage-weighted selection system that favors higher-paid and more complex positions. The rule is scheduled to take effect on February 27, 2026 , just ahead of the fiscal year 2027 H-1B cap registration season, unless delayed by legal challenges. If implemented, USCIS is expected to release additional guidance explaining how employers must submit registrations under the revised process. This change marks one of the most significant reforms to the H-1B program in recent years. Up until 2025, all registrations were treated equally once the annual cap was reached. Under the new system, selection odds will be tied to wage levels based on the U.S. Department of Labor’s Occupational Employment and Wage Statistics data. All H-1B registrations will still be placed into a single selection pool, but registrations tied to higher wage levels will receive multiple entries into that pool, increasing their likelihood of selection. Lower wage levels will receive fewer entries, making selection less likely but not impossible. H-1B wage levels are not determined solely by salary. Each wage level reflects the complexity of the job, the level of responsibility involved, and the education and experience required . Entry-level positions involving routine duties and close supervision are generally classified at the lowest wage level, while positions requiring independent judgment, advanced skills, and significant responsibility fall into higher wage levels. The highest wage level is reserved for roles that involve expert knowledge, strategic decision-making, and substantial leadership or technical authority. USCIS is expected to closely scrutinize selected petitions to ensure that the wage level claimed during registration is supported by the job duties and salary offered in the petition. Any discrepancies between the registration and the petition may result in requests for evidence, denials, or enforcement action. With the elimination of the purely random lottery, employers should begin preparing early by carefully evaluating job descriptions, wage levels, and overall H-1B strategy. Accurate classification and thoughtful planning will be essential under this new wage-based selection system. If you are an employer considering H-1B sponsorship, or a foreign professional wondering whether your position may qualify under the new wage-based system, consulting with experienced immigration counsel is more important than ever. Santos Lloyd Law is actively advising clients on H-1B cap registrations and strategy under the new rules. To discuss your options or determine whether you may qualify, contact our office to schedule a consultation.
During the recent administration there has been an increase in issuance of Requests for Evidence for EB-1A petitions for those of Extraordinary Ability. A Request for Evidence is a request that is made by USCIS that should explain how the evidence is deficient in proving the criteria argued and what additional evidence needs to be provided by the applicant to meet the criteria. EB-1A petitions are already normally subject to higher scrutiny because their approval is the first step needed to apply for Lawful Permanent Residence or a green card. USCIS normally requires not just evidence but that the evidence be provided with context and information to show why it matters in a particular field. For example, if you were providing evidence of your membership in an organization that requires outstanding achievements of its members, just providing evidence of the membership is not enough. You must explain what that membership is and provide background information on the organization granting the membership. You also need to provide evidence on the criteria that is used to select the members, information on those who select the members to show that they are recognized experts, other documentation such as articles about the membership organization to show its importance, and any other relevant evidence and background information to show that the criteria is met. A request for evidence being issued prior to the current administration was not uncommon, but in the current climate it is more surprising to not receive a request for evidence for this type of case. It is important to remember that a request for evidence is not a denial. Depending on the validity of the information in the request and the substance some Requests for Evidence can be overcome, and the case be approved. It is important to carefully review the request and note if there are any errors in the content and application of the regulations by USCIS. If you have an attorney, you should work with them and make sure that you provide any evidence you think may be helpful. Although there is a deadline by which a response must be submitted, attention to detail and patience will go a long way when dealing with having to respond to a request for evidence. If you believe you may qualify for this type of visa, please feel free to contact our office.
