Pursuant to a grant awarded by the American Bar Endowment, the Immigration Clinic at the Georgia State University College of Law (the “Clinic”) launched the Work Authorization Defense Project (“WADP”) in July of 2021. Over the course of the one-year grant period, which ended on June 30, 2022, pro bono attorneys – guided by the Clinic, and with the benefit of the Clinic’s training materials – filed eight complaints in federal district court on behalf of asylum seekers wrongfully denied work authorization. The result was 13 work-permit cards issued to asylum seekers who, like most people, need lawful employment in order to provide for themselves and their loved ones. The WADP’s work continues in the form of these training materials, which we hope will increase the ranks of attorneys willing to sue the responsible immigration agency in federal court.
Welcome to Module 1 for the Work Authorization Defense Project. Before you begin, please view (if you haven’t already) the WADP introduction video embedded above, it will provide the needed context for modules 1-5.
These training modules will teach you how to use the Administrative Procedure Act to challenge the U.S. government’s unlawful denial of work permits for asylum seekers.
Under U.S. immigration law, qualified non-citizens may work legally if they receive an Employment Authorization Document, or “EAD,” also known as a work permit.
By law, asylum seekers must wait at least six months for their EADs. Asylum seekers may not request a work permit until at least 150 days have passed from the day they submitted their asylum application. This is true whether they apply for asylum with the Asylum Office or with a U.S. Immigration Judge.
Once the work permit application is submitted, the asylum seeker must wait another 30 days. This is the time allowed to the U.S. Citizenship and Immigration Services, or “USCIS,” to process and then make a decision on their work permit application. In total, that means for 180 days, or six months, an asylum seeker must wait for their EAD.
Because of USCIS’s wrongful denials, asylum seekers often wait much longer than six months for their work permit. USCIS routinely denies work-permit applications for arbitrary reasons, leaving asylum seekers unable to work, receive a Social Security number, access affordable health care, receive a driver’s license, or generally provide for themselves and their families.
There is no right to appeal a denied work-permit application. Most often, an asylum seeker’s only option is to file another application. Yet refiling comes with a heavy price. They must submit a $410 re-filing fee (for renewal applications), pay their attorney more money to handle the application or both. Even after all this they can only cross their fingers and hope their re-filed application lands on the desk of a more careful USCIS employee.
The suffering related to living without a work permit often forces asylum seekers to abandon their asylum applications. If they can’t work, they can’t eat or pay for housing. Faced with this, many return to their home countries, risking persecution or death. Some asylum seekers can rely for a time on support from friends or charities. But those funds go to food and housing, with nothing left to pay a lawyer. And because the asylum process is so complicated, not having a lawyer usually means deportation.
These baseless, unlawful work permit denials deprive non-citizens of their right to seek asylum in violation of the U.S. Refugee Act of 1980.
Being unable to work lawfully, but at the same time in desperate need of food, clothing, and shelter (for not just themselves but their families as well), makes these non-citizens especially vulnerable to forced labor, a form of human trafficking. To learn more, go to the Resources & Sample Documents.
With the help of attorneys like you, asylum seekers can right these denials by suing USCIS in federal district court.
In Module 2, we will explain the legal basis for an asylum seeker to apply for and receive a work permit. In Module 3, you’ll see examples of baseless USCIS denials. In Module 4, we’ll cover the legal basis for suing USCIS in federal court. And lastly, in Module 5, we’ll review the nuts and bolts of how to sue USCIS in federal court.
Let’s get started!
In the previous module, you learned that U.S. immigration law allows asylum seekers to work lawfully if issued a work permit.
In this module, you will learn the legal basis for an asylum seeker’s right to apply for and receive a work permit, also known as an Employment Authorization Document, or “EAD.”
Two sources govern the work-permit application process for asylum seekers. One is the Immigration and Nationality Act. The other is the Code of Federal Regulations.
The Immigration and Nationality Act (“INA”). INA § 208(d)(2), 8 U.S.C. § 1158(d)(2), does two things:
1. It allows the “Attorney General” to issue regulations establishing the requirements for asylum seeker work authorization. Authority to issue such regulations passed to the Secretary of the Department of Homeland Security following the Homeland Security Act of 2002.
2. It prohibits granting work authorization before 180 days have passed since the asylum application was filed.
Employment authorization for asylum seekers “may be provided under regulation,” and indeed it has been – see 8 C.F.R. §§ 208.7, 274a.12(c)(8), and 274a.13.
Under the regulations, an asylum seeker’s initial employment authorization request “must be filed on the form designated by USCIS in accordance with the form instructions.” 8 C.F.R. § 274a.13(a)(2). This refers to Form I-765.
What evidence is submitted along with Form I-765 depends upon whether the asylum seeker is applying for their initial work permit or for renewal.
Before Form I-765 is submitted, 150 days must have elapsed from the time the asylum application was filed. 8 C.F.R. § 208.7(a)(1). Upon receipt of Form I-765, USCIS has 30 days to grant or deny the request for work authorization. Asylum seeker work-permit applications are *not* subject to discretionary denials. See 8 C.F.R. §§ 274a.13(a)(1). Accordingly, once the asylum application has been pending for 150 days—and as long as the applicant is not an “aggravated felon” (as defined at 8 U.S.C. § 1101(a)(43)), see 8 C.F.R. 208.7(a)(1)—USCIS *shall* grant employment authorization within 30 days of filing Form I-765.
Employment-authorized non-citizens are categorized by class, with asylum applicants listed at 8 C.F.R. §274a.12(c)(8). For this reason, an asylum seeker’s work permit lists the “category code” as “C08.”
Calculating the 180-day period—the 150-day wait, plus 30 days for USCIS processing—is not as straightforward as it seems. These 180 days are tracked using the so-called “asylum clock,” which starts when the asylum application is filed, and then either stops or continues to run based on the regulations and agency policy guidance. It stops for “[a]ny delay requested or caused by the [asylum] applicant.” See 8 C.F.R. § 208.7(a)(2). The regulations identify one such delay: “[the asylum seeker’s] failure without good cause to follow the requirements for fingerprint processing.” All other clock-stopping delays, e.g., an asylum seeker’s request to continue a hearing in immigration court, are found in agency policy guidance and memoranda.
Mismanagement of the asylum clock underlies many, if not most, wrongful USCIS denials of asylum seeker work-permit applications. Recall that a continued hearing in immigration court stops the clock. But what if USCIS overlooks that it was counsel for the government, not the asylum seeker, who requested the continuance? Or perhaps the immigration judge who decided on her own to continue the hearing? In such case, USCIS, due to no fault of the asylum seeker, considers the asylum clock “frozen,” not to re-start until the next hearing in Immigration Court. That might be a long wait—backlogs in Immigration Court mean that non-citizens sometimes go multiple years between hearings. During this time, if the clock is frozen at less than 180 days, asylum seekers cannot work lawfully.
Because the asylum clock is complicated and the rules surrounding it change often, it is impossible to give a full explanation in these training modules. Please review all relevant policy guidance issued by both USCIS and the Executive Office for Immigration Review. A brief history of the asylum clock is included in the complaint linked below under “Documents,” which the WADP filed in the Northern District of Georgia in October of 2021.
In the next module, you will learn about some real-life examples of egregious work permit denials by USCIS.
In the previous modules, you learned that USCIS sometimes denies in error the work-permit applications of asylum seekers. In this module, we provide examples of unlawful USCIS denials.
USCIS errors include:
- Miscalculation of the asylum clock;
- So-called “system errors”; and
- Misplacing or losing evidence submitted by the asylum seeker
Each kind of error results in an unnecessary delay of a work-permit approval.
First, let's consider the miscalculation of the asylum clock. As discussed in Module 2, the asylum clock is crucial to the approval of a work permit application. Yet USCIS employees may not understand the law, or their own agency’s rules, regarding when the clock should start and stop. These calculation errors lead USCIS to believe the clock has not yet reached 150 days. An especially frustrating experience for asylum seekers is calling the Immigration Court’s automated hotline (1-800-898-7180) and discovering that their clock is stuck at the wrong number of days.
So-called “system” errors also result in unlawful denials.
Here is an example from the Georgia State College of Law’s Immigration Clinic. The clients were a Honduran asylum seeker and her two daughters. Both daughters were listed as derivatives on their mother’s pending asylum application. Both applied for a work permit. USCIS granted one daughter’s application but denied the other.
That made no sense. Both shared the same mother and were derivatives on the same asylum application. If the agency’s “system” reflected a pending asylum application for one girl, it should have shown the same for her sister. USCIS quickly admitted its error and settled after the Immigration Clinic filed suit.
A third class of errors is USCIS misplacement of evidence submitted in support of the work permit application.
For example, the instructions for Form I-765 require applicants to submit two passport-size photos of themselves. (If the work permit application is approved, USCIS uses these photos to create the work permit card.) Sometimes these photos become detached from the application and are lost. In such cases, USCIS has been known to claim the photos were never submitted and deny the application.
These errors cause undue stress to asylum applicants and their families. In each case, USCIS denies asylum seekers their basic right to safety and work while in the United States.
Now you’ve learned about the issue of unlawful work permit denials and how these denials impact asylum seekers. In Module 4, we will learn the legal basis for suing USCIS in federal court.
Welcome to Module 4. In the previous modules, we discussed USCIS’s unlawful denial of asylum seeker work-permit applications. In this module, we discuss the remedy: suing USCIS in federal district court under the Administrative Procedure Act, or APA.
Below we address the requirements—including standing, venue, and “final agency action”—that must be satisfied in order to survive a USCIS motion to dismiss. This is intended as an overview. For a more in-depth treatment of the law, please refer to the sample complaint in “Resources and Sample Documents.”
The APA is found at 5 U.S.C. §§ 551, 701-706. The APA provides a cause of action for agency error, but it is not an independent basis of jurisdiction. That comes from 28 U.S.C. § 1331, since agency action is a “federal question.”
The APA waives sovereign immunity and affords judicial review to those aggrieved by “final agency action.” 5 U.S.C. §§ 704. The U.S. Supreme Court has endorsed a two-part test for determining whether agency action is final for purposes of APA review. “First, the action must mark the consummation of the agency’s decision making process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-178 (1997).
Though it is a decision with serious legal consequences for the asylum seeker, by law there is no appeal from USCIS’s denial of a work-permit application. 8 C.F.R. § 274a.13(c). Accordingly, under the Supreme Court’s definition, these denials are “final agency action,” and therefore subject to review under the APA.
Even assuming USCIS’s decision is reviewable, standing must be established.
To establish standing, the asylum seeker must allege (1) an “injury in fact” (2) caused by the defendant, and (3) which will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
USCIS’s denial of the work-authorization application prevents the asylum seeker from obtaining lawful employment and, oftentimes, a driver’s license. Those are injuries in fact the district court can remedy via declaratory judgment.
Venue is another requirement.
Per 28 U.S.C. § 1391(b)(2), ‘[a] civil action may be brought in… a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred[.]’
For our purposes, a “substantial part of the events or omissions giving rise to the claim” generally will have occurred in either of two places:
- Whichever judicial district covers the Immigration Court where the asylum application is pending; or
- Whichever district court covers the USCIS Service Center that issued the denial (e.g., the Northern District of Texas includes Irving, the Dallas suburb in which the USCIS Texas Service Center is located).
Once established that you’re properly before the Court, the APA gives the district judge power to hold unlawful and set aside arbitrary and capricious USCIS denials of the sort discussed in the preceding modules. See 5 U.S.C. § 702(2)(A).
The next module will provide step-by-step instructions on how to sue USCIS in federal court.
Welcome to Module 5, the last module of the Work Authorization Defense Project training series. In this module, you will learn how to e-file an APA suit in federal district court, as well as procedural pitfalls to avoid. Complaints are e-filed using the district court’s CM/ECF document filing system.
***Be advised that the instructions in this module are for e-filing in the Northern District of Georgia. E-filing procedures should be relatively uniform across all districts. That said, always consult your district’s local rules and specific e-filing instructions.***
- “CM/ECF” stands for “Case Management / Electronic Case Files.”
- “IFP” stands for in forma pauperis.
Before Filing Checklist:
- Before you log into CM/EMF, make sure all your documents -- complaint, exhibits, summons, civil cover sheet, IFP application -- are ready to upload in .pdf format.
- To download the proposed summons, civil cover sheet, and, if necessary, IFP application, go to “Commonly Used Forms” on the N.D.Ga. website
- *Note that in suits against USCIS, FRCP 4(i) requires services of the summons and complaint on (1) the agency, (2) the U.S. Attorney General, and (3) the U.S. Attorney for the district in which the suit is filed.
- For step-by-step instructions on how to e-file an APA complaint in the N.D.Ga., go to the "Documents" section below and click on "How to e-file an APA suit in federal court."
Three things to do/watch for:
- Deadline for service
- Per FRCP 4(m), copies of the summons and complaint must be served "within 90 days after the complaint is filed."
- Deadline to file returns of service
- There will be three returns of service: one for DHS counsel, another for the U.S. Attorney General, and a third for the U.S. Attorney in whichever district suit was filed.
- For each return, attach as Exhibit A the certified mail receipt and as Exhibit B the USPS proof of delivery.
- Deadline for gov't answer
- Per FRCP 12(a)(2), the U.S. officer or employee “must file” an answer "within 60 days after service on the United States Attorney."
That wraps up this series of training modules for the Work Authorization Defense Project. Now you are ready to file suit on behalf of asylum seekers whose work permit applications have been denied by USCIS without cause. We encourage you to reach out to us with questions and/or comments about these materials.
USCIS’s arbitrary work permit denials deprive asylum seekers of the right to earn money needed to support themselves and their families. The typical WADP client cannot afford legal representation, and often struggles with food and housing insecurity. While the WADP seeks to represent those who are unable to afford legal representation on the issue of their work permit denials, USCIS does not discriminate based on class or education. Even asylum seekers who are highly educated young professionals are vulnerable to egregious denials and unreasonably long delays on their work permit applications, upending their livelihoods and causing undue stress.
Listen to the following audio clip of one anonymous asylum seeker’s challenges while waiting for the adjudication of her work permit application.
- Audio clip from Asylum Seeker
- Transcript of audio clip
- The 21 weeks I spent off were some of the hardest days I have had in my life. Every morning, afternoon, and evening, I checked the website tracking citizenship and immigration applications for any progress, knowing all too well that there will likely be none. Every day my hopes that this would be resolved quickly dissipated and my despair grew. I was a recent grad and with very little savings that disappeared quickly. And since I had to be technically laid off, I lost my health insurance. I had to just hope that I don’t fall ill or get into an accident. Luckily, the pause coincided with the end of my lease. So, I packed up my belongings into a tiny storage unit and travelled outside of the city to stay with relatives and friends who were generous enough to take me in. Many days felt and looked very bleak. I had to be intentional every day about finding activities that I could do that would occupy me and mentally stimulate me. I knew that giving up on myself would me that they won. I considered finding jobs that would pay me under the table but was mortified of the impact that could have on my asylum application later on if it is discovered. And then suddenly, one random day, I woke up with an email to check my account for an update on my application. And within a week, I was back at work. Five months later, I still feel the impact of that period on my ability to feel safe and stable. I have lost five months of work and income. I have missed out on a promotion. And I will still be paying the debt that I have accumulated for the next year or so.
- 2021 American Immigration Council Practice Advisory on APA Suits
- EOIR-USCIS Asylum Clock Notice
- NIJC Sample I-765 (Renewal) Cover Letter
Redacted Sample Documents
- Pleadings & other filings
- E-summons for DHS
- E-summons for U.S. Atty for N.D.Ga.
- E-summons for U.S. Atty General
- Return of service on DHS
- Return of service on DHS (exhibit #1_cert mail receipt)
- Return of service on DHS (exhibit #2_USPS proof of delivery)
- Return of service on USA for NDGA
- Return of service on USA for NDGA (exhibit #1_cert mail receipt)
- Return of service on USA for NDGA (exhibit #2_USPS proof of delivery)
- Return of service on USAG
- Return of service on USAG (exhibit #1_cert mail receipt)
- Return of service on USAG (exhibit #2_USPS proof of delivery)
Human Trafficking & Labor Exploitation
As briefly mentioned earlier, one of the real consequences of unlawful work permit denials is the increased susceptibility of non-citizens to be trafficked and exploited. When USCIS denies a work permit application for an asylum seeker, some are able to survive off the charity of friends, family, churches, and local organizations. Others may feel like they have no choice but to work in the informal economy to support themselves and their dependents.
Human trafficking involves the use of force, fraud, or coercion to compel another person to perform a profitable labor or sex act. It can happen to anyone, whether they are documented or not. Some of the most vulnerable populations for trafficking in the United States include non-citizens, temporary guest-workers, and low-income individuals.
How does force, fraud, or coercion show up in trafficking? (Note: This is not an exhaustive list of strategies that might be used by traffickers.)
- Force: Restricted access, restricted movement, permission required for access or communication, locks, guards, guard dogs, etc.
- Fraud: Exorbitant or new charges incurred for job placement, transportation, food, or other services; wage and hour violations; “bait and switch” tactics regarding job duties and compensation.
- Coercion: Threats of deportation, reporting to law enforcement, harm to family members, or blacklisting from future employment; sexual harassment; confiscation of passport and visa; shaming; debt bondage.
Immigration status is a powerful mechanism of control. Employers often threaten workers with visas and unauthorized workers with arrest as a means of keeping them in forced labor. Though a valid work permit provides no guarantee that one will not be exploited, work permits supply at least some level of safety and protection for noncitizen workers.
To learn more about human trafficking, check out the following links:
In The News
- 2022 Atlanta Journal-Constitution article, “Investigators uncovered ‘modern-day slavery’ on Georgia farms. What’s next for victims?”
If you or someone you know is a victim of human trafficking, call the number 1-888-373-7888 or text 233733.