Introduction

In 2013, United States Citizenship Services (USCIS) and Executive Office for Immigration Review (EOIR) reached a settlement agreement (henceforth “ABT settlement agreement”) that was approved in BH., et al. v. United States Citizenship and Immigration Services, et al., No. CV11-2108-RAJ (W.D. Wash.) [PDF version]. The ABT settlement agreement changes the manner in which USCIS and EOIR adjudicate the Form I-589, Application for Asylum and for Withholding of Removal, and the Form I-765, Application for Employment Authorization. The provisions of the ABT settlement agreement generally concern how time is counted after the filing of an asylum application toward the applicant being eligible to apply for employment authorization. This article will provide a brief overview of the underlying issues; explain which asylum applicants qualify as ABT class members, and describe the ABT benefits afforded to ABT class members.

The EAD Clock

The “asylum clock” (also known as the “EAD clock”) is based upon INA § 208(d)(5)(A)(iii), which requires that a Form I-589 (asylum application) be fully adjudicated within 180 days, absent exceptional circumstances, and INA § 208(d)(2), which permits asylum applicants to receive EADs only after 180 days have elapsed since the filing of the Form I-589.1The EAD clock commences either when an affirmative asylum application is filed with USCIS, or when a defensive asylum application is filed with EOIR during removal proceedings before an immigration judge. Pursuant to the ABT settlement agreement, the EAD clock may also start when an application is “lodged” with the clerk of the court before which for a defensive asylum application is pending, although the application must be subsequently filed before the immigration judge of said court.2

Regulations found in 8 C.F.R. §§ 208.3(c)(3) and 1208.3(c)(3) do not allow an asylum applicant to file a Form I-765 (EAD application) based upon his or her status as an asylum applicant until 150 days have elapsed since the filing of the asylum application.3 However, if the applicant was convicted of an aggravated felony, he or she will only be eligible for an EAD after having been granted asylum.4

If an asylum application is rejected within 150 days, the applicant will be ineligible to apply for an EAD. The EAD clock only applies to asylum applications that were filed after January 4, 1995.5 6 The Administrative Appeals Office (AAO) has held that an asylum claim that is administratively closed before an immigration judge does not bar employment authorization.7

A joint document issued by USCIS — “the 180-Day Asylum EAD Clock Notice”8 — lists events that may stop or terminate the EAD clock:

For Affirmative Asylum Applications Filed with USCIS:

A request to transfer a case to a new asylum office or interview location;
A request to reschedule an interview for a later date;
Failure to appear at an interview or fingerprint appointment;
Failure to provide a competent interpreter (if necessary) at an interview;
Request to provide additional evidence at an interview; and
Failure to receive and acknowledge an asylum decision in person (if required).

For Defensive Asylum Applications Filed with EOIR:

An applicant asks for the case to be continued so he or she may obtain an attorney;
An applicant, or his or her attorney, asks for additional time to prepare a case; and
An applicant, or his or her attorney, declines an expedited asylum hearing date.

Additionally, if an affirmative asylum application is filed with USCIS and then returned as incomplete, the clock does not start until the application is resubmitted and deemed properly filed.9 Prior to the ABT settlement, failure to attend a USCIS affirmative asylum application hearing would stop the clock permanently; however, under the ABT settlement, an applicant who fails to attend a USCIS affirmative hearing has 45 days to demonstrate good cause for the failure.10

ABT Class Members 11

Pursuant to the ABT settlement agreement, there are different categories of ABT class members. Provided that an asylum applicant meets the criteria for the general ABT class or any of the four ABT subclasses, no additional action is needed on the asylum applicant’s part in order to be considered an ABT class member. The general class of ABT class members is called the “Notice and Review Class.” The four subclasses are the:

Hearing Subclass;
Prolonged Tolling Subclass;
Missed Asylum Interview Subclass; and
Remand Subclass.

This section will explain the criteria for each class.

The Notice and Review Class includes all noncitizens who meet all of the following criteria:

1. have filed or will file (or will lodge) a complete asylum application with USCIS or EOIR; and
2. their asylum applications have neither been approved nor subjected to denial where no rights of appeal or review remain; and
3. their applications for employment authorization based upon their status as asylum applicants will be denied based on what the applicant alleges to be insufficient notice and/or opportunity for review.

An asylum applicant must meet all of the above criteria in order to be an ABT class member. In addition, he or she must also meet the criteria of one of the four subclasses:

The Hearing Subclass includes all noncitizens who qualify as members of the Notice and Review Class and who also meet all of the following criteria:

have been placed in removal proceedings before an immigration judge; and
have filed or lodged, sought to lodge, or who will lodge or seek to lodge a complete defensive asylum application with the immigration court prior to a hearing before an immigration judge; and
eligibility for employment authorization has been or will be calculated from the date the asylum application was or will be filed at a hearing before an immigration judge.

The Prolonged Tolling Subclass includes all noncitizens who qualify as members of the Notice and Review Class and who also meet all of the following criteria:

are not detained in immigration custody; and
the EAD clock is stopped or will be stopped due to a delay attributed to the applicant, including but not limited to failure to accept the next expedited hearing date offered by the immigration court; and
have, or will have, allegedly resolved the issue causing the delay in advance of the next scheduled hearing; and
the EAD clock will remain stopped despite the alleged resolution.

The Missed Asylum Interview Subclass includes all noncitizens who qualify as members of the Notice and Review Class and who also meet all of the following criteria:

have failed or will fail to appear for an asylum interview with USCIS; and
did not or will not accrue time toward employment authorization following the date of the missed asylum interview.

The Remand Subclass includes all noncitizens who qualify as members of the Notice and Review Class and who also meet all of the following criteria:

have asylum applications that were or will be denied by an immigration court before they have been pending for 180 days creditable toward employment authorization; and
appeal or will appeal their asylum denial to the Board of Immigration Appeals (BIA) or to a federal court of appeals and receive or will receive a remand to the immigration judge for further consideration of the asylum claim;
have not or will not be credited with additional time toward eligibility for employment authorization following the denial.

ABT Benefits 12

The ABT settlement agreement applies only to EAD applications based on status as an asylum applicant on or after December 3, 2013, and to asylum applications filed affirmatively with USCIS or defensively by EOIR on or after the same date. USCIS lists the different effects of the ABT settlement agreement on affirmative asylum applications, defensive asylum applications, and communications to ABT class members.

Affirmative Asylum Applications

When an applicant misses an asylum interview, USCIS must mail a “Failure to Appear Warning Letter” as soon as possible explaining the procedure for rescheduling the interview and the effect that the missed interview has on EAD eligibility. The letter must explain the steps that the applicant must undertake to establish good cause for missing the interview, and the effect of not responding to the letter within 45 days.
If more than 45 days have passed since USCIS sent a warning letter for a missed interview and USCIS has not received a rescheduling request, USCIS will mail a “Referral Notice for Failure to Appear.” This notice will explain how EAD eligibility is affected once USCIS has referred the case to an immigration court. The notice will explain the steps required of the applicant to establish that the failure to appear was because of “exceptional circumstances,” which is a higher standard than the “good cause” for failing to appear that is required by the initial warning letter.
In the event that the asylum applicant, after referral to immigration court, demonstrates to the satisfaction of USCIS that the failure to appear was caused by exceptional circumstances, USCIS will issue a determination letter to the applicant and notify Immigration and Customs Enforcement Office of Chief Counsel (ICE OCC). The applicant may then request ICE OCC’s agreement to join a motion to terminate removal proceedings. If the immigration judge terminates removal proceedings, and the asylum application is returned to the asylum office, the asylum office will reopen the asylum case and assume jurisdiction. In this event, the 180-day asylum EAD clock, which stopped on the date of the applicant’s initial failure to appear, will restart when the applicant appears at the rescheduled asylum interview. Upon reaching 150 days on the EAD clock in this scenario, the applicant must attach to his or her EAD application a copy of the complete BIA order remanding his or her case to an immigration court for further adjudication.

Defensive Asylum Applications

Immigration judges must now make clear for the record the reasons for a case adjournment. Chief Immigration Judge Brian O’Leary updated guidance for immigration courts in his memo, “Operating Policies and Procedures Memorandum 13-02: The Asylum Clock,” which now requires that an immigration judge must allow a minimum of 45 days between the date of the last master calendar hearing and the individual hearing date when setting hearing dates in expedited non-detained cases involving a pending asylum application.
As noted in The EAD Clock section, above, the EAD clock may start running at the lodging date of a defensive asylum application with an immigration court clerk at an immigration court window. Please note, however, that the application must still be filed at a hearing before an immigration judge. After 150 days have elapsed since a defensive asylum application was lodged, the applicant may submit the application that was stamped as “lodged not filed” as evidence to USCIS for EAD application eligibility.

USCIS and EOIR Joint Notice and Contact Information

USCIS and EOIR will provide a Joint Notice to asylum applicants that contains information concerning:

where to obtain case-specific information; and
how hearing adjournment codes affect EAD eligibility; and
where to direct requests to correct hearing adjournment codes and inquiries relating to EAD eligibility.

ABT Class Members Who Believe That They Have Been Incorrectly Denied ABT Benefits 13

USCIS lists procedures for asylum applicants who believe they have been denied an ABT benefit or who believe that they are ABT class members but are not be treating as such. The following is an exhaustive list of scenarios posed by USCIS where an ABT class member may allege that he or she has been denied ABT benefits:

Applicant was not provided with a Joint Notice when he or she lodged or filed an asylum application with the immigration court, or when USCIS referred the asylum application to the immigration court;
EOIR did not make the Joint Notice available to the applicant during hearings before the immigration court after the applicant lodged or filed the asylum application;
EOIR did not stamp applicant’s complete defensive application at the immigration court clerk’s window, mark it as “lodged not filed,” and return it to the applicant;
For purpose of the EAD clock with regard to an application marked “lodged not filed,” USCIS did not use the lodging date as the starting point;
USCIS failed to mail a “Failure to Appear Warning Letter” after applicant failed to appear for an asylum interview;
Applicant failed to appear at a scheduled asylum interview with USCIS and did not attempt to reschedule. USCIS did not wait 45 days before referring the asylum application to an immigration judge;
USCIS did not include a “Referral Notice for Failure to Appear” when referring the applicant’s asylum application to an immigration judge after applicant missed an asylum interview and failed to reschedule within 45 days;
Asylum applicant requested a determination of “exceptional circumstances” after missing an asylum interview and failing to reschedule within 45 days, but USCIS did not provide applicant and his or her representative with a determination letter and did not notify ICE OCC;
After USCIS assumed reopened jurisdiction over the applicant’s case, the applicant missed an asylum interview but subsequently established exceptional circumstances for the missed interview and an immigration judge dismissed proceedings, but USCIS did not restart the EAD clock on the date the applicant appeared for a rescheduled interview;
For purpose of the EAD, USCIS did not credit the applicant with the number of days that passed between the immigration judge’s initial denial of the asylum claim and the date of the BIA’s remand order.

In order to submit a claim, the applicant should complete and submit the ABT Claim Form included in this link along with all applicable evidence to support the claim. USCIS or EOIR will send a detailed summary of its decision with regard to the applicant’s claim after a decision is reached. In the event that the applicant believes that the claim was not properly resolved, he or she will have 30 days to negotiate in good faith with USCIS or EOIR to resolve the remaining disputes. If the applicant believes that the claim is still not correctly resolved, he or she may appeal to the US. District Court for the Western District of Washington, and ask the Court to enforce the settlement agreement.

Advice

The ABT settlement agreement provides a litany of benefits to qualified asylum applicants regarding the EAD clock. Any alien who is applying for asylum should retain an experienced immigration attorney to guide the applicant through every step of applying for asylum, including taking advantage of available ABT benefits. Many of the ABT benefits, such as those for applicants who miss interviews, may not have to be resorted to by applicants who are properly prepared for each step of the asylum application, unless extenuating circumstances occur. One benefit of particular importance to applicants lodging defensive asylum applications, however, is that the EAD clock should start running on the date that the application is marked “lodged not filed.” Applicants in this situation, along with the experienced immigration attorney, should confirm that the EAD clock started on the proper date.

  1. I. Kurzban, Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 721
  2. Kurzban 709, citing ICPM § 4.15(l)(i)
  3. Kurzban 721
  4. Kurzban 721, citing 8 C.F.R. §§ 208.7(a)(1), 1208.7(a)(1)
  5. Kurzban 721, citing Memo, O’Leary, Chief Immigration Judge, EOIR, OPPM 13-02, The Asylum Clock (Dec. 2, 2013) at p. 4, published on AILA InfoNet at Doc. No 13121068
  6. Note that since ABC class members may have their asylum applications adjudicated under rules that existed in 1990, the EAD clock is inapplicable to asylum applications by ABC class members who are eligible for ABC benefits. Please see our full article on ABC class members for more information.
  7. Kurzban 722, citing Matter of __ (AAO TSC Sept. 6, 2013), published on AILA InfoNet at Doc. No. 13092545
  8. USCIS and EOIR, “The 180 Day Asylum EAD Clock Notice”
  9. Kurzban 722, citing 8 C.F.R. §§ 208.7(a)(2), 1208.7(a)(2)
  10. Kurzban 722, citing Memo, O’Leary, Chief Immigration Judge, EOIR, OPPM 13-02, The Asylum Clock (Dec. 2, 2013) at p. 5, 8, published on AILA InfoNet at Doc. No 13121068
  11. Citing for the section: USCIS, “Determining Who is an ABUT Class Member,”; BH., et al. v. United States Citizenship and Immigration Services, et al., No. CV11-2108-RAJ (W.D. Wash.).
  12. Citing for the section: USCIS, “How the Agreement Affects Asylum Applications”
  13. Citing for the section: USCIS, “If You Believe You Have Been Denied ABT Benefits”

Resources and materials:

Kurzban, Ira J. Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 709, 721-22, Print. Treatises & Primers.

“Determining Who is an ABT Class Member,” USCIS, December 2, 2013, available at http://www.uscis.gov/humanitarian/refugees-asylum/asylum/determining-who-abt-class-member [link]

“How the Agreement Affects Adjudication of Asylum and EAD Applications,” USCIS, December 3, 2013, available at http://www.uscis.gov/humanitarian/refugees-asylum/asylum/how-agreement-affects-adjudication-asylum-and-ead-applications [link]

“If You Believe You Have Been Denied ABT Benefits,” USCIS, March 20, 2013, available at http://www.uscis.gov/humanitarian/refugees-asylum/asylum/if-you-believe-you-have-been-denied-abt-benefits [link]

“The 180-Day Asylum EAD Clock Notice,” EOIR, USCIS, January 30, 2015, available at http://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/Asylum_Clock_Joint_Notice_Revised_Adj_Code_Chart_01-30-15.pdf [PDF version]