NOI 34: New Restriction on Work Authorization for Asylum Applicants

Today on Nation of Immigrants, Attorney Jacob Tingen discusses the latest proposed Trump rule which would impact the ability of asylum applicants to work while waiting for their asylum hearing.

Jacob Tingen: Episode 34, which is just kind of crazy. We’ve gotten here pretty quickly and there’s been a lot of immigration news and a lot of things to talk about. Today is no exception. I’m going to talk about this new proposed rule that’s kind of being discussed when it comes to extending work authorization to immigrants who are here and have applied for asylum. So, we’ve kind of talked around this issue a lot and why we have certain asylum protections, but we’ve never talked about the issue of work authorization, and why it would be important to extend to those who are applying for protection in our country. So, let’s talk about it today. Thanks for listening to Nation of Immigrants.

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President Obama: America is a nation of immigrants.

Announcer: A podcast about U.S. immigration law, with your host, Jacob Tingen.

Jacob Tingen: Okay. So, thanks again for coming and listening. Before we get started, I just want to remind you, you can always subscribe to our YouTube channel, follow us everywhere, and you can contribute to the podcast at JacobTingen.com. I have a link on my website for the podcast, and a link to donate and continue to support us. And as I’ve mentioned in the past, we’re going to try to use those funds and help pay immigrants’ legal bills as they fight their cases out in court or in USCIS. There’s a lot of need for people to kind of get involved and help immigrants in a lot of ways and this is just one avenue for you to do that. So, yeah. Well, so thanks for coming.

Jacob Tingen: Today, like I said, we’re talking about work authorization. Now, a lot of the critiques of our asylum current backlog is that people or detractors will say, “Hey, these immigrants aren’t actually coming because they’re afraid, they’re coming because they’re economic migrants and they need better work.” That kind of thing. Which, part of me just says, “Well, what’s so bad about that?” I mean, it’s not like these people want a handout, they want to come for work. So, I’m not super sympathetic to that argument. But notwithstanding, we’ve talked about this on the podcast before and it’s my opinion and I’ve shared this many, many times that many, many of these immigrants are not coming just for work. They aren’t just economic migrants. In particular, those coming out of Central America are coming because they have a fear of returning to their country. Many times, conditions generally there are so dangerous, the highest homicide rates in the world are out of Central America, and conditions there are so dangerous that people are honest to goodness, afraid for their lives. Many times, that fear is a targeted fear for specific reasons, justifying a good claim for asylum.

Jacob Tingen: So, while they’re here for asylum, those people can apply for work authorization. Now, independent of green cards, which currently has a processing time of about a year or more depending on the kind of application you have pending to get your green card, people can get a document, about the size of a driver’s license, with their photo. And it’s just a work authorization document and it authorizes them to work. They can get a social security number, they can participate legally in our economy. So, what’s interesting here is that you can get work authorization for many, many, many, many reasons and there’s a very long list in the instructions for the application for a work authorization document. And one of those reasons is, well, a frequent reason is, I’ve got a pending application. So the idea is, USCIS is supposed to process things in an orderly and timely manner, but unfortunately and occasionally, there are backlogs and things are taking a little longer than we would like.

Jacob Tingen: In the meantime, you may as well be able to get work authorization while you wait for the application that you have, and see if you can’t get work authorization and work and contribute and do those kinds of things. So, I just want to reiterate, it is through no fault of any immigrant that the asylum process takes as long as it does. It’s not the fault of the immigrants that some of them are waiting two, three, four, five years or more to have their asylum application reviewed, to have a hearing over their asylum case. Now, I’m aware that sometimes it’s possible, of course, in the existing system, given the backlogs that someone could game the system and do that. But again, most immigrants don’t come to the U.S. thinking, “Ooh, I can’t wait to game the U.S. asylum system and delay things as long as possible.” No. They come afraid for their lives and what they can’t wait for is to finally breathe a sigh of relief as asylum is approved, and they’re told that they can stay here and contribute forever. So, that’s what immigrants are hoping for.

Jacob Tingen: Well, when they apply for asylum, if it takes a long time, then they can eventually apply for work authorization. Now, the idea is, immigration or USCIS would never take more than five or six months to listen to and approve an asylum application. So, after 150 days, about five months, an immigrant who has a pending asylum application for 150 days can today, apply for work authorization. Now, I mean it is still five months that they can’t work legally in the U.S. Which is kind of a long time. And yet people do the best they can, right? Then, in the midst of all this, they’re supposed to pay processing fees and pay to live and pay a lawyer while they wait five months. Now, presumably, the entire process should never take more than that. But we know that that’s not the case. And I’ve talked about it before on this show where it’s taking literally years for some asylum applications to be reviewed and for some of them to be approved.

Jacob Tingen: What we have is this problem where, okay, it’s taking so long, the U.S. government has decided, “All right, if it takes longer than five months, you may as well work while you’re here. And we’re going to give you work authorization.” So, the new Trump rule, this thing that’s been proposed, what does it do? Why is this a problem? One of the things that’s been in debate lately is eligibility for asylum. And one of the things that the Trump administration has done is moved to prevent people from applying for asylum, essentially, all of these Central American migrants that are flooding to our southern border and crossing over and frankly, asking for protection. It’s more than we can handle under the current system. And there’s this, again, a lot of arguments out there that they’re economic migrants. Even though, I can tell you from personal experience, they are not purely economic migrants. They are coming because they’re scared for their lives.

Jacob Tingen: So, what’s interesting is, Trump has always said, “Oh, if they come legally, we don’t mind. Have them come to the border, have them come at a port of entry and we’ll admit them.” And then when they came to a port of entry, they didn’t get admitted. Instead, they initiated the migrant protection protocols, the remain-in-Mexico program, so if you come to a port of entry and you try to get access to the United States and you say, “They’re going to kill me if I go back,” you have to wait in Mexico in a dangerous border town. That’s currently how it is if you do it the quote-unquote right way. If instead you cross over into the U.S. so that you can apply for asylum and you’re placed into removal proceedings, you get that credible fear interview and those kinds of things. Either way, if you enter through a port of entry and they by some chance today, allow you to enter, or if you cross the border without inspection, either way, you can apply for work authorization 150 days after submitting an asylum application. That’s just how it works.

Jacob Tingen: The new rule proposes that if you entered without inspection, that if you didn’t come in the right way, that you would not be eligible for work authorization. That’s how I understand it from what I’ve been reading in the headlines and those kinds of things. The problem with this is, is that it goes back to this fake argument that Trump and many of his people are saying is that, “Oh, well, if immigrants just did it the right way, we’d let them have, we’d afford them all of these rights under the laws.” But that’s not actually realistic because again, if they came the right way and they went to a port of entry, well, they wouldn’t be allowed into the country at all. Then they’d try to have a hearing at a border tent court, which we’ve talked about it also in the show, without due process, without appropriate safeguards to make sure that people’s rights are being protected. And these are all problems.

Jacob Tingen: So, it seems disingenuous for people to say this argument, “Well, if they entered the right way, then this wouldn’t happen.” So, I’m reading a headline and article. It says, “U.S. to restrict work permits to most asylum-seekers in move to deter border crossers.” Yeah, that’s the idea. I don’t think it’s going to deter border crossers. Again, people aren’t coming thinking, “Oh, I can’t wait until I apply for asylum. And then after the 150 days happens, I can finally get my work authorization document.” That’s not what’s happening. People are saying, “Okay,” and as I’ve said on this show before, like one mother told me, “I would rather my child die on the way to the U.S. with hope in their hearts than die in my country with no hope at all.” They’re coming for safety.

Jacob Tingen: So, a move like this isn’t going to prevent immigrants from coming to the U.S. It’s not going to deter border crossers. But what it will do is, it will make our country less safe, and it will depress wages even more, and it will not lead to, frankly, any positive results. Why would it depress wages? Well, if I can hire an immigrant who I know now has zero bargaining power because they don’t even have a path to any kind of work authorization document, and I’m an unscrupulous employer, I know I can completely take advantage of them and they have zero legal recourse, because they can’t get work authorization. So, I can just move wages even lower. And so then I can compete better in the market for different things. And this stuff happens.

Jacob Tingen: Why won’t it make us safer? Well, in a lot of states, including Virginia, you can’t get a driver’s license if you don’t have that work authorization document. So, then we have even more immigrants who are driving without driver’s licenses, who haven’t taken the appropriate tests, who know that they can’t get a driver’s license but they’re not going to just stop living. And so, yeah, that will lead to less safety. Then, this whole thing where, again, I just want to reiterate, it is not illegal to cross our border and apply for asylum. It just isn’t. It’s not illegal to do this. And so, basically, it takes immigrants who aren’t in the shadows currently and puts them there. It’s not good to try to prevent these people from making better lives for themselves here while they prepare for an asylum hearing.

Jacob Tingen: Okay. Here’s what it says in this news article. “Acting USCIS director, Ken Cuccinelli, an immigration hardliner, said the proposal targets those seeking to exploit America’s asylum system. Unauthorized migrants are gaming our asylum system for economic opportunity, which undermines the integrity of our immigration system and delays relief for legitimate asylum-seekers in need of humanitarian protection.” We know that that’s not what he really cares about because they’re keeping the legitimate asylum seekers out even if they come at a port of entry. Then also the idea that people who come across illegally don’t have legitimate claims is based on nothing. And because a lot of the immigration enforcement and interpretation is under the purview of the executive branch, they can deflate the numbers all they want and make it look like their argument works. But it doesn’t. It’s not reality. That statement is not true. It’s just not correct.

Jacob Tingen: Migrants aren’t coming to game our asylum system. Again, I don’t think a Guatemalan mother says, “Okay, son, make sure you hire the right attorney, whisper these appropriate words, file your asylum, wait 150 days. You really need that document so that you can work legally in the U.S.” That’s not the thought process. Immigrants aren’t gaming our system in this way. So, that’s the news though. This rule will probably be promulgated. They’re following all the right procedures. I mean, I imagine there’s a period for public comment. I think I got an email inviting me to make one. But yeah, this is not okay. It won’t lead to safety, and it won’t deter anyone, because they’re fleeing for their lives. They’re not economic migrants.

Jacob Tingen: All right, well that’s it for Nation of Immigrants. Again, follow me here on YouTube, Facebook, Twitter. Check us out on TingenWilliams.com at the law firm website. Maybe we can help you, give you some legal services. Like I said also, you can go to JacobTingen.com where we have the transcripts of all of the Nation of Immigrants episodes. And then you can also donate to the podcast. Here in the next couple of weeks, probably kicking off closer to the new year, we are going to be providing some additional program on our YouTube channel. In addition to Nation of Immigrants, about general legal topics and how you can basically get your life together, legally speaking, and then also some resources and options to retain us, for those of you who live in Virginia. So, thanks again for watching. And yeah, always fun. We’ll see you next time here on Nation of Immigrants.

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