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Can I Apply for Work Authorization while my Asylum Application is Pending?
Angelica Rice • February 11, 2022
Click here to read this article in Portuguese
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.
On January 20, 2025, President Donald Trump signed an Executive Order imposing new restrictions on migrants, including limitations on asylum and humanitarian protections. The order directs the Department of Homeland Security (DHS) to terminate all categorical parole programs that conflict with U.S. policies , which includes parole processes for Cuban, Haitian, Nicaraguan, and Venezuelan nationals. Additionally, this provision could impact parole programs for individuals from Afghanistan, Ukraine, and other countries. Beyond restricting parole, the executive order introduces several border security measures , including building more physical barriers, increasing the number of border personnel, and stopping the use of the CBP One mobile application . The order specifically directs the Department of Defense (DOD) and DHS to build more border walls to establish what it calls “complete operational control” of the southern border. Additionally, it ordered the immediate shutdown of the CBP One mobile app, which previously allowed asylum seekers to schedule appointments at U.S. Ports of Entry. As a result, all existing appointments have been canceled immediately . The order also initiates the reinstatement of the “Remain in Mexico” program , also known as the Migrant Protection Protocols (MPP) , across all sectors of the southern border. Under MPP, asylum seekers must remain in Mexico while awaiting the outcome of their U.S. immigration court proceedings, significantly altering the process for those seeking refuge in the country. These measures reinforce the Trump administration's broader effort to restrict asylum and humanitarian protections at the U.S. border . If you or someone you know may be affected by this executive order, it is essential to stay informed and understand your legal rights. Consulting with an immigration attorney can help navigate these evolving policies and ensure the best course of action moving forward.
The E-2 Visa is a non-immigrant visa that allows foreign investors from treaty countries to live and work in the United States by starting or purchasing a business. Unlike other visa categories, it does not require a fixed minimum investment amount. Instead, applicants must demonstrate that their investment is substantial and sufficient to ensure the success of their business. The visa is renewable indefinitely as long as the business remains active and meets the necessary criteria, making it an attractive option for entrepreneurs seeking long-term opportunities in the U.S. One of its key advantages is flexibility. Investors can establish a new business, acquire an existing one, or enter into franchise opportunities. Additionally, spouses and children under 21 can accompany the primary applicant, with spouses eligible to apply for work authorization. This makes the E-2 Visa a practical option for business-minded individuals looking to establish themselves in the U.S. market. While the E-2 Visa itself has remained a stable option, shifts in U.S. immigration policies have influenced the application process and overall investor experience. Understanding these changes is essential for anyone considering this pathway. Policy Shifts and the E-2 Visa: Lessons from the Past During the first Trump administration (2017–2021), U.S. immigration policies became more restrictive across multiple visa categories. Although the E-2 program was not directly limited, broader changes had an impact. The "Buy American, Hire American" Executive Order, signed in 2017, led to heightened scrutiny of visa applications, requiring investors to provide stronger evidence that their business would create jobs and contribute to the U.S. economy. This resulted in an increase in Requests for Evidence (RFEs) and denials for those unable to meet these expectations. Another significant change was the suspension of the Interview Waiver Program, which meant all E-2 applicants, including renewals, had to attend in-person interviews at U.S. embassies. This extended processing times and increased scrutiny of applications. Additionally, visa reciprocity agreements were reviewed and adjusted, impacting validity periods and costs for certain countries. For instance, Iranian citizens were deemed ineligible for the E-2 Visa due to the termination of the treaty. These adjustments significantly affected investors from impacted nations, increasing their costs and renewal frequency. Despite these policy shifts, the approval rate for E-2 visas remained relatively stable. According to data from the U.S. Department of State, there were over 43,000 approvals in 2019, reflecting the program’s continued viability. Even in 2020, when the COVID-19 pandemic caused global disruptions, approval numbers remained significant. These figures highlight that while the process became more rigorous, well-prepared investors continued to secure visas by demonstrating strong business plans, substantial investments, and clear economic contributions. What to Expect Moving Forward As the new Trump administration takes shape, further immigration policy changes are likely. While it is too soon to predict the exact impact on the E-2 Visa, past trends suggest increased scrutiny. However, the program itself has remained intact across multiple administrations, reinforcing its reliability for foreign entrepreneurs. Those considering this visa should stay informed and ensure their applications meet evolving requirements. A well-prepared investment strategy, clear documentation, and a defined job creation plan can make a significant difference in navigating any potential policy shifts. Why the E-2 Visa Remains a Strong Choice The E-2 Visa continues to be a resilient and valuable option for foreign entrepreneurs. Even during periods of policy change, approval rates have remained strong for investors with well-structured applications. The ability to renew indefinitely, combined with its flexibility in investment size and business type, makes it one of the most attractive pathways for international investors. With the right preparation, investors can confidently pursue the E-2 Visa, knowing that history has shown its stability even amid shifting political landscapes. By staying ahead of policy changes and ensuring a solid business strategy, entrepreneurs can take advantage of the opportunities the U.S. market has to offer. If you are ready to take the next step toward launching your business in the U.S., you can contact our office for expert guidance and personalized assistance with your application.
On January 29, 2025, President Trump signed the Laken Riley Act into law, significantly altering how immigration policies are enforced in the United States. This legislation grants State attorneys general and other authorized officials unprecedented authority to interpret and implement federal immigration policies. It also empowers them to take legal action against the federal government if they believe federal immigration enforcement negatively impacts their state. With this new authority, states now play a direct role in shaping immigration outcomes—a responsibility traditionally held by the federal government. One of the most immediate effects of the Laken Riley Act is that it allows states to seek injunctive relief to block the issuance of visas to nationals of countries that refuse or unreasonably delay the acceptance of their citizens who have been ordered removed from the United States . This means that if a country does not cooperate with U.S. deportation efforts, its nationals—regardless of their legal status—could face significant difficulties obtaining or renewing visas. As a result, foreign nationals from these countries may encounter increased uncertainty when traveling internationally or securing work authorization in the U.S. Beyond visa processing, the law introduces a new level of unpredictability into the immigration system. By allowing state attorneys general to intervene in federal procedures, and immigration policies that may now vary based on state-level decisions. In the coming months, it remains to be seen how individual states will wield this power—whether they will actively seek to block visa issuance or push for broader immigration enforcement measures. For foreign nationals and employers, staying informed about which countries are deemed “uncooperative” is now more important than ever. Those needing visa renewals or planning international travel should prepare for potential delays and seek professional guidance to navigate these uncertainties. The Laken Riley Act also mandates federal immigration authorities to detain and deport individuals without legal status who are charged with certain offenses, including minor theft or shoplifting, assaulting a law enforcement officer, and crimes resulting in death or serious bodily injury. This provision underscores a stricter approach to immigration enforcement, affecting individuals accused of both minor and serious offenses. With immigration policies now subject to a new layer of state involvement, it is more important than ever to stay informed and prepared for potential challenges. If you have concerns about how the Laken Riley Act may affect your immigration status or business, contact Santos Lloyd Law Firm for strategic counsel tailored to your needs.
