USCIS and Executive Office for Immigration Review Processes altered by ABT Settlement

Monday, December 9, 2013

On Nov. 4, 2013, the United States District Court for the Western District of Washington granted final approval of the revised ABT Settlement Agreement, bringing to a close class action litigation that began in December 2011. The settlement agreement provides that certain individuals who intend to file an asylum application, or who have already filed an asylum application, are entitled to have their eligibility for employment authorization determined using new procedures.  

The agreement was revised in September 2013 to clarify two points:
1. Following the remand of an asylum case to an immigration judge, for employment eligibility purposes the asylum applicant will be credited with time going forward, excluding delays requested or caused by the applicant.
2. Remand Claim relief would be implemented under the six-month timeframe provided for most other provisions of the agreement. Due to the government shutdown, the six-month timeframe was extended by several weeks, such that implementation will now begin by Dec. 3, 2013.

The Settlement Agreement in B.H., et al. v. United States Citizenship and Immigration Services, et al., No. CV11-2108-RAJ (W.D. Wash.), also known as the ABT Settlement Agreement, as revised, or the “Agreement,” resulted in changes to USCIS and Executive Office for Immigration Review (EOIR) processes and procedures that affect how USCIS’s Asylum Division adjudicates Form I-589, Application for Asylum and for Withholding of Removal, and how USCIS’s Service Center Operations Directorate adjudicates Form I-765, Application for Employment Authorization.  These changes generally relate to eligibility for an Employment Authorization Document (EAD) for asylum applicants, and to calculation of the 180-day Asylum EAD Clock. Individuals who are ABT class members  are affected by the Agreement.    

The 180-Day Asylum EAD Clock

The 180-day asylum EAD Clock measures the time period during which an asylum application has been pending with the USCIS asylum office and/or EOIR.  USCIS service centers adjudicate the Form I-765 and calculate the 180-day asylum EAD Clock to determine eligibility for employment authorization.  Asylum applicants who applied for asylum on or after January 4, 1995, must wait 150 days before they can file a Form I-765, if the application remains pending.  An asylum applicant is not eligible to receive an EAD until his or her asylum application has been pending for at least 180 days.  This 180-day period, which is commonly referred to as the 180-day asylum EAD Clock, does not include any delays applicants request or cause while their applications are pending with an asylum office or immigration court.   

Examples of delays caused by an asylum applicant include, but are not limited to:

  • Failure to appear for fingerprint processing,
  • Failure to appear for an interview with an asylum officer,
  • Failure to appear for a hearing with an immigration judge, and
  • Other types of delays. 

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