Work Permit while In Asylum Proceeding

I was recently contacted via our website with the following question:

I am an Attorney in Des Moines Iowa. My paralegals were at the Las Vegas conference. You presented at that conference and you mentioned that you can get EADs for clients in proceedings with a defensive asylum. No attorney in the Omaha court has been able to get EADs. Do you have a legal basis so that I may challenge the Judge on this issue?

Answer:
You are required to file a copy of the Asylum application with USCIS after you submit it with the court (as you know). That starts the clock. At that point 8 CFR 208.7(a)(1) applies. That reads:

(a) Application and approval. (1) Subject to the restrictions contained in sections 208(d) and 236(a) of the Act, an applicant for asylum who is not an aggravated felon shall be eligible pursuant to §§ 274a.12(c)(8) and 274a.13(a) of this chapter to request employment authorization. Except in the case of an alien whose asylum application has been recommended for approval, or in the case of an alien who filed an asylum application prior to January 4, 1995, the application shall be submitted no earlier than 150 days after the date on which a complete asylum application submitted in accordance with §§ 208.3 and 208.4 has been received.

Further, see INA 236(a)(3) indicates that work permits are permitted for folks in removal procedures if they would otherwise be permissible outside of the removal procedure (this triggers 208.7(a)(1)). As long as your fella is not an agg fel or otherwise precluded on bad-acts grounds, you're hot!

Remember, you file the I-765 with USCIS, not the Court.

The code to use on the EAD application is (C)(8).

Do you have immigration question? Contact us! We can help. From adjustment of status to tough immigration court defense, we have you covered. 703-402-2723 or admin@hanoverlawpc.com.

Hanover Law, PC
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Divorce and Sponsoring Another Immigrant Spouse

Divorce and remarriage under USCIS -- sponsoring another spouse:

In family processing, with a USC spouse, as long as the immigrant arrived on a valid visa (and can prove this -- inability to prove this is a mess and the subject of much consternation, gnashing of teeth and occasionally litigation), her overstay will not impact filing during the I-130/I-485 process. She is at risk, of course, of getting tossed out on her "behind" PRIOR to the filing of the I-130. However, once the I-130 is floated in the system, she is fine (from a deportation standpoint). Be sure to file the I-130, I-765, and I-131 along with the I-485. That's a work permit (I-765) and advanced parole granting the right to leave the country (and return!) during the pendency of the adjustment process (I-131).

I-94 and -Humanitarian- Notation in Immigration Law

I was recently answering questions on AVVO, an attorney inquriy board that, in part, specializes in immigration questions. An interesting question about I-94 forms and humaitarian/refugee parole was asked.

First, you need to understand the purpose of an I-94. The I-94 is often (but not always) given when an immigrant enters the country through a boarder crossing or inspection point. The actual name of the form is "arrival/departure record". It should be noted that many immigrants do NOT get this, and its absence does not per se cause a denial of any benefit (although it does shift the burden of proving legal entry onto the immigrant). Most commonly, folks come to the United States under a B2 visa. This visa, known as a visitor visa, entitles the bearer to remain up to 6 months in the country. The actual amount of time the visa holder may stay is -- you got it! - marked on the I-94. There are also certain codes entered on the I-94 that tell CBP (custom and board patrol officers) the nature of your entry, whether you are being watched or tracked, if you are permitted multiple entry/re-entry on the same I-94, etc.). In the instant case, the question is: what does the indication "indefinite" mean on the I-94? It means that instead of a 6-mos or other time window for this arriving alien, CBP granted "parole" to remain in the country without ever having to depart. This is in effect a pseudo-deferral, allowing the immigrant to remain in the country, but providing no benefits (work permit, for example). It is an excellent defense to a removal charge (assuming no criminal charges), but does little to provide a future for the immigrant.

In this instance, the proper next step would be application for asylum. Asylum is, defacto, a request for humanitarian/refugee relief. It means that you have a credible, meaningful fear of returning from where-ever you came from. More importantly, because CBP already paroled you in under humanitarian grounds, the credible fear determination is all but automatic. I don't know the specifics of your case, but one can imagine it must be compelling, as CBP paroles are not that common.

Once you apply for asylum, and you have established your credible fear during that process, you are eligible for EAD (employment authorization documents). This in turn allows you to work legally in the US.

The trick here is to ensure your asylum application process is done properly and timely, so you do not lose out on the potential benefit of a CBP humanitarian parole.

Hanover Law specializes in immigration defense -- specifically in court for removal, deportation, and asylum claims. We would be glad to take a look at your situation and help you get the best possible outcome. Call us at 703-402-2723 to discuss your case and begin the process getting you both legal, and working, in the US.

S

Sean R. Hanover, Esq
HanoverLawPC.com
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703-402-2723