Published: August 19, 2024
Asylum seekers in the US are experiencing prolonged delays in having their interviews, much more so in seeking a resolution for their claims.
A survey conducted by AILA indicated that people typically wait over six years for an interview with an asylum officer after applying with the US Citizenship and Immigration Services (USCIS). On average, asylum seekers also endure a four-year waiting period for their final hearing in immigration court.
The USCIS is responsible for handling the affirmative asylum process. Suppose the USCIS officer denies the claim and the applicant lacks lawful immigration status. The case is then referred to the immigration court. Specifically, the Executive Office for Immigration Review (EOIR) is the sub-agency that administers that immigration courts system.
However, at the end of fiscal year 2023, the USCIS and immigration courts dealt with significant backlogs, exceeding one million asylum applications each. The unprecedented backlogs are likely due to insufficient staffing and escalating workload.
Years-long delays hinder asylum seekers from accessing educational opportunities or securing employment, all the while living in constant fear of deportation. Unsurprisingly, a class action lawsuit initiated on June 9, 2022, challenged policies and practices that block asylum applicants from acquiring work authorization while being forced to wait years for the agency’s decisions.
In this post, ALG Lawyers will discuss which specific issues in the lawsuit and the case’s impact on employment rights.
Overview of the Garcia Perez v. USCIS
Garcia-Perez is a class action lawsuit filed in the US District Court for the Western District of Washington.
On behalf of the national class, the noncitizen asylum applicants initiated this action against the USCIS and EOIR to contest the procedures that hindered them from securing work authorization while their asylum claims were under review.
Specifically, the lawsuit targets the Asylum employment authorization document (EAD) Clock, a measure utilized to determine an applicant’s eligibility for employment authorization. It monitors the duration the asylum application is under assessment with the USCIS and EOIR.
Specific actions can cause the EAD clock to stop. The plaintiffs in the Garcia-Perez lawsuit argued that their EAD Clocks were improperly stopped and started. This means the asylum seekers face extended delays than anticipated in getting work permits, causing financial hardships for them and their families.
Impact of the Garcia Perez v. USCIS Class Action Lawsuit on Employment Rights
The class action lawsuit carries significant implications for employment rights, particularly for those seeking asylum and dealing with the intricacies of work authorization in the US. To better understand its impact, let’s walk you through the current policies governing the Asylum EAD Clock, how the lawsuit challenges the current processing and the potential benefits for asylum seekers.
Existing USCIS Policies on Asylum EAD Processing
Under existing regulations, USCIS and EOIR have 180 days to adjudicate asylum applications unless there are exceptional circumstances. However, in many cases, this deadline is unmet.
Congress recognized the need of the asylum seekers to provide for themselves and their families. For that reason, certain regulations authorize asylum applicants to file an application for an EAD while their applications are under review for 180 days.
The Asylum EAD clock tracked the 180-day period. However, USCIS can suspend it in two limited situations: after the denial of the asylum application or applicant-caused delays.
How the Lawsuit Challenges USCIS Policies
The lawsuit alleges that the agencies unfairly impede asylum seekers from accumulating the requisite 180-day period for work authorization eligibility through the following three practices and policies:
- Failing to restart the Asylum EAD Clock when the applicant succeeds in their appeal to the Board of Immigration Appeals or a federal court of appeals
- Pausing the Asylum EAD Clock when an asylum applicant requests a change in the venue of their immigration court hearings
- Stopping the Asylum EAD Clock when an unaccompanied child awaits USCIS’s initial decision
Furthermore, the lawsuit challenges USCIS’ and EOIR’s failure to provide sufficient written notice about adverse decisions related to the Asylum EAD clock. It also claims the agencies have not established a viable mechanism to appeal or dispute these decisions.
Potential Advantages for Asylum Seekers
A favorable ruling in the lawsuit can help asylum seekers protect their rights and livelihoods with the following potential benefits:
- Secure fair and efficient access to employment authorization
- More consistent and predictable outcomes for asylum seekers through more precise guidelines and procedures governing the Asylum EAD Clock
- Greater public awareness and advocacy for the asylum seekers’ rights, potentially leading to more comprehensive immigration policy reforms
Proposed Settlement Agreement
The parties started settlement negotiations shortly after the initiation of the lawsuit. On July 30, 2024, the US District Court for the Western District of Washington has given a preliminary approval to a proposed settlement agreement between the asylum seekers and the government. The terms of the agreement include modifications of processes and practices that affect asylum seekers filing their applications.
Importance of Legal Counsel for Asylum-Related Issues
Despite the government initiatives to speed up the system, asylum seekers must consider legal representation to ensure fair handling of their cases. Foreign individuals seeking asylum often encounter various roadblocks throughout the application process. Failure to effectively identify and tackle these barriers may lead to unexpected deportation.
Since asylum laws are subject to frequent changes, having competent legal counsel is indispensable. Besides ensuring that you receive notable attention, lawyers can help reduce the guesswork and advocate for your legal rights. It’s worth pointing out that an asylum seeker typically faces an uneven playing field without representation.
Findings from the Transactional Records Access Clearinghouse (TRAC) revealed the impact of legal counsel on asylum case outcomes. Having a lawyer increased success rates by more than two and a half times compared to those without representation. In FY 2022, only 18 percent of unrepresented cases were successful, compared to 49 percent of those who filed with an attorney.
Although not always required, having a lawyer can help you achieve more favorable results in asylum cases or immigration-related concerns.
Why Seek Consultation With ALG Lawyers
Obtaining authorization to work in the US legally can be lengthy and frustrating. This is particularly evident for foreign nationals, including refugees and asylum seekers, who need an employment authorization document. Careful assessment of your immigration status and category is necessary to determine your eligibility.
You can confidently navigate such intricacies with proper guidance and resources. Whether you need assistance with the application process or appeals, ALG Lawyers delivers the tailored legal advice and representation you need. Connect with our team here to discuss how we can further assist you.
(Please note that this article does not create an Attorney-Client relationship between our law firm and the reader and is provided for informational purposes only. Information in this article does not apply to all readers. Readers should not rely on this information as legal advice and should seek specific counsel from a qualified attorney based on their individual circumstances. Thank you.)