QUESTION: MY ASYLUM CASE IS ON APPEAL, MAY I GET WORK AUTHORIZATION WHILE WAITING FOR THE APPEAL?
Many persons file appeals to the Board of Immigration Appeals following denial of their asylum claim. It is vital that throughout their appeal they continue to have work authorization. If you qualified for work authorization during the time that you filed your asylum claim, you can extend that work authorization during the full time of your appeal to the Board of Immigration Appeals. (8 C.F.R. 208.7(b)) The asylum applicant is entitled to work authorization during the appeal and this authorization will be granted in one-year increments. (8 C.F.R. § 274a.12(c)(10)).
Although it is clear that applicants are entitled to this benefit, the Immigration Service frequently withholds the employment authorization claiming that the applicant has not fulfilled a requirement that the asylum proceedings lasted more than 150 days. (8 C.F.R. 208.8(a)(1)).* Where cases have taken more than 150 days the USCIS then blames the delay on the asylum applicant and still refuses to issue work authorization.
Reeves & Associates recently took this issue to the Federal District court and obtained the work authorization from the Immigration Service for their client. The government issued the employment authorization only after it was clearly demonstrated from immigration court hearing transcripts that the government was responsible for 159 days of delay in presenting their case to the court. These delays may include failure to perform background checks based on fingerprints, failure to produce witnesses or a simple failure to obtain the file of the asylum applicant for the hearing.
It is this attention to detail, research of the record and willingness to take this issue to Federal District Court that allowed this office to reverse the Immigration Service’s Decision.
It is important to note that an asylum claim should never be filed unless the immigrant has a well-founded fear of persecution. Unfortunately many immigration services, paralegals and attorneys wrongly recommend asylum applications in an effort to obtain work authorization for their clients. This abuse of the system may lead to tragic results where individuals end up in deportation proceedings without any relief.
Even if you are subject to a final order of deportation persons may still obtain work authorization where the country will not accept that person, where it can be determined that there is an economic necessity to be employed, the presence of a dependent spouse or child, or a substantial length of time existing prior to that person being removed from the United States. (8 C.F.R. 274A.12(c)(18))
People wishing to file for asylum or appeal a decision of an Immigration Judge, should seek the advice of a well-informed immigration firm. Those attorneys who have overlooked changes in the law or fail to examine the record of proceedings may seriously compromise their client’s right to work while their asylum claims are on appeal.
*NOTE: Work authorization may be granted in spite of the 150 day restriction rule if an asylum application is coupled with an application for some other kind of relief from deportation.
BY: ATTY. ROBERT L. REEVES AND ATTY. ROBERT J. DUPONT:
