Rule2021-20161
Asylum Interview Interpreter Requirement Modification Due to COVID-19
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 17, 2021
Effective
September 20, 2021
Issuing agencies
Homeland Security Department
Abstract
The Department of Homeland Security (DHS) is extending for a second time the effective date (for 180 days) of its temporary final rule that modified certain regulatory requirements to help ensure that USCIS may continue with affirmative asylum adjudications during the COVID-19 pandemic. This rule also provides that if a USCIS interpreter is unavailable, USCIS will either reschedule the interview and attribute the interview delay to USCIS for the purposes of the asylum employment authorization regulation, or USCIS may, in its discretion, allow the applicant to provide an interpreter.
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[Federal Register Volume 86, Number 178 (Friday, September 17, 2021)]
[Rules and Regulations]
[Pages 51781-51788]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-20161]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 /
Rules and Regulations
[[Page 51781]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 208
[CIS No. 2671-20; DHS Docket No. USCIS-2020-0017]
RIN 1615-AC59
Asylum Interview Interpreter Requirement Modification Due to
COVID-19
AGENCY: U.S. Citizenship and Immigration Services (USCIS), Department
of Homeland Security (DHS).
ACTION: Temporary final rule; extension.
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SUMMARY: The Department of Homeland Security (DHS) is extending for a
second time the effective date (for 180 days) of its temporary final
rule that modified certain regulatory requirements to help ensure that
USCIS may continue with affirmative asylum adjudications during the
COVID-19 pandemic. This rule also provides that if a USCIS interpreter
is unavailable, USCIS will either reschedule the interview and
attribute the interview delay to USCIS for the purposes of the asylum
employment authorization regulation, or USCIS may, in its discretion,
allow the applicant to provide an interpreter.
DATES: This temporary final rule is effective from September 20, 2021,
through March 16, 2022. As of September 20, 2021, the expiration date
of the temporary final rule published at 85 FR 59655 (Sept. 23, 2020),
which was extended at 86 FR 15072 (Mar. 22, 2021), is further extended
from September 20, 2021, to March 16, 2022.
FOR FURTHER INFORMATION CONTACT: Andria Strano, Acting Chief, Division
of Humanitarian Affairs, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
5900 Capital Gateway Drive, Camp Springs, MD 20588-0009; telephone
(240) 721-3000 (not a toll-free call).
Individuals with hearing or speech impairments may access the
telephone numbers above via TTY by calling the toll-free Federal
Information Relay Service at 1-877-889-5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
I. Legal Authority To Issue This Rule and Other Background
A. Legal Authority
The Secretary of Homeland Security (Secretary) takes this action
pursuant to his authorities concerning asylum determinations. The
Homeland Security Act of 2002 (HSA), Public Law 107-296, as amended,
transferred many functions related to the execution of Federal
immigration law to the newly created DHS. The HSA amended the
Immigration and Nationality Act (INA or the Act), charging the
Secretary ``with the administration and enforcement of this chapter and
all other laws relating to the immigration and naturalization of
aliens,'' INA 103(a)(1), 8 U.S.C. 1103(a)(1), and granted the Secretary
the power to take all actions ``necessary for carrying out'' the
immigration laws, including the INA, id. 1103(a)(3). The HSA also
transferred to DHS responsibility for affirmative asylum applications
made outside the removal context. See 6 U.S.C. 271(b)(3). That
authority has been delegated within DHS to U.S. Citizenship and
Immigration Services (USCIS). USCIS asylum officers determine, in the
first instance, whether a noncitizen's affirmative asylum application
should be granted. See 8 CFR 208.4(b), 208.9. With limited exception,
the Department of Justice Executive Office for Immigration Review has
exclusive authority to adjudicate asylum applications filed by
noncitizens who are in removal proceedings. See INA 103(g), 240; 8
U.S.C. 1103(g), 1229a. This broad division of functions and authorities
informs the background of this rule.
B. Legal Framework for Asylum
Asylum is a discretionary benefit that generally can be granted to
eligible noncitizens who are physically present or who arrive in the
United States, irrespective of their status, subject to the
requirements in section 208 of the INA, 8 U.S.C. 1158, and implementing
regulations, see 8 CFR parts 208, 1208.
Section 208(d)(5) of the INA, 8 U.S.C. 1158(d)(5), imposes several
mandates and procedural requirements for the consideration of asylum
applications. Congress also specified that the Attorney General and
Secretary of Homeland Security ``may provide by regulation for any
other conditions or limitations on the consideration of an application
for asylum,'' so long as those limitations are ``not inconsistent with
this chapter.'' INA208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B). Thus, the
current statutory framework leaves the Attorney General (and, after the
HSA, also the Secretary) significant discretion to regulate
consideration of asylum applications. USCIS regulations promulgated
under this authority set agency procedures for asylum interviews, and
require that applicants unable to communicate in English ``must
provide, at no expense to the Service, a competent interpreter fluent
in both English and the applicant's native language or any other
language in which the applicant is fluent.'' 8 CFR 208.9(g). This
requirement means that all asylum applicants who cannot communicate in
English must bring an interpreter to their interview. Doing so, as
required by the regulation, poses a serious health risk because of the
COVID-19 pandemic.
Accordingly, this temporary rule extends the temporary final rule
published at 85 FR 59655 for a second time to continue to mitigate the
spread of COVID-19 by seeking to slow the transmission and spread of
the disease during asylum interviews before USCIS asylum officers. To
that end, this temporary rule will extend the requirement in certain
instances allowing noncitizens interviewed for this discretionary
asylum benefit to use USCIS-provided interpreters during interviews.
This temporary rule also provides that if a USCIS interpreter is
unavailable, USCIS will either reschedule the interview and attribute
the interview delay to USCIS for the purposes of employment
authorization under 8 CFR 208.7, or USCIS may, in its discretion, allow
the applicant to provide an interpreter.
C. The COVID-19 Pandemic
On January 31, 2020, the Secretary of Health and Human Services
(HHS) declared a public health emergency under section 319 of the
Public Health Service Act (42 U.S.C. 247d), in response to COVID-19,
which is caused
[[Page 51782]]
by the SARS-CoV-2 virus.\1\ On February 24, 2021, the President issued
a continuation of the National Emergency concerning the COVID-19
pandemic.\2\ Effective July 20, 2021, HHS renewed the determination
that ``a public health emergency exists and has existed since January
27, 2020 nationwide.'' \3\ A more detailed background discussion of the
COVID-19 pandemic is found in the original temporary rule, as well as
in the first extension of this rule, and USCIS incorporates the
discussions of the pandemic into this extension with modification. 85
FR 59655; 85 FR 15072.
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\1\ HHS, Determination that a Public Health Emergency Exists
(Jan. 31, 2020), <a href="https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx">https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx</a>.
\2\ Notice on the Continuation of the National Emergency
Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic, 86 FR
11599 (Feb. 26, 2021); Proclamation 9994 of March 13, 2020,
Declaring a National Emergency Concerning the Coronavirus Disease
(COVID-19) Outbreak, 85 FR 15337 (Mar. 18, 2020).
\3\ HHS, Renewal of Determination that a Public Health Emergency
Exists (July 19, 2021), <a href="https://www.phe.gov/emergency/news/healthactions/phe/Pages/COVID-19July2021.aspx">https://www.phe.gov/emergency/news/healthactions/phe/Pages/COVID-19July2021.aspx</a>.
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Since publication of the original temporary rule and first
extension, several variants of the virus that causes COVID-19 have
been, and continue to be, reported in the United States.\4\ Evidence
suggests that these variants may spread more quickly and easily than
others and at least one variant may be associated with an increased
risk of death.\5\ The COVID-19 Delta variant was first found in India
in October 2020.\6\ Cases were discovered in the United States in late
January 2021, and Delta has quickly become the predominant virus strain
in the United States.\7\ It was labeled a Variant of Concern (VOC) by
the HHS SARS-CoV-2 Interagency Group (SIG), which defines VOCs as those
with evidence of increased transmissibility and severe disease, reduced
effectiveness of treatments or vaccines, and diagnostic detection
failures.\8\
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\4\ Centers for Disease Control and Prevention (CDC), SARS-CoV-2
Variant Classifications and Definitions (Aug. 3, 2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/variants/variant-info.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcases-updates%2Fvariant-surveillance%2Fvariant-info.html">https://www.cdc.gov/coronavirus/2019-ncov/variants/variant-info.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcases-updates%2Fvariant-surveillance%2Fvariant-info.html</a>.
\5\ CDC, Variants of the Virus (July 29, 2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/variants/variant.html">https://www.cdc.gov/coronavirus/2019-ncov/variants/variant.html</a>.
\6\ Cov-Lineages, Global Lineage Report: B.1.617.2 (May 19,
2021); CDC, SARS-CoV-2 Variant Classifications and Definitions (Aug.
03, 2021); CDC, Delta Variant: What We Know About the Science (Aug.
06, 2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/variants/delta-variant.html">https://www.cdc.gov/coronavirus/2019-ncov/variants/delta-variant.html</a>.
\7\ Id.
\8\ Id.
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As of September 9, 2021, there have been approximately 222,406,582
cases of COVID-19 identified globally, resulting in approximately
4,592,934 deaths. Approximately 40,152,521 cases have been identified
in the United States, with about 1,297,399 new cases identified in the
7 days preceding September 5th, and approximately 646,131 reported
deaths due to the disease.\9\ In the week preceding September 5th, the
United States was the country that reported the highest number of new
cases, with a 38 percent increase.\10\
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\9\ World Health Organization (WHO), Weekly epidemiological
update--7 September 2021 (Sept. 07, 2021), available at <a href="https://www.who.int/publications/m/item/weekly-epidemiological-update-on-covid-19--7-september-2021">https://www.who.int/publications/m/item/weekly-epidemiological-update-on-covid-19--7-september-2021</a>; WHO, WHO Coronavirus (COVID-19)
Dashboard (Sept. 09, 2021), <a href="https://covid19.who.int/">https://covid19.who.int/</a>.
\10\ WHO, Weekly epidemiological update.
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On August 23, 2021, the U.S. Food and Drug Administration (FDA)
granted approval for the Pfizer-BioNTech COVID-19 vaccine for
individuals 16 years and older, now marketed as Comirnaty.\11\ Prior to
this, the FDA had issued emergency use authorizations (EUAs) for three
COVID-19 vaccines, including the Pfizer-BioNTech vaccine.\12\ The two
other vaccines that continue to be authorized for emergency use are
produced by Moderna and Janssen.\13\ The Pfizer-BioNTech and Moderna
vaccines require two doses to be effective at preventing COVID-19
illness.\14\ The Janssen vaccine is a single dose.\15\ As of September
9, 2021, approximately 177,433,044 people in the United States had
completed a COVID-19 vaccination regimen.\16\ While the vaccine is now
widely accessible in the United States, geographic data indicates a
wide disparity in the percentages of fully vaccinated individuals by
state, ranging from 39.6 percent in Alabama to 68.4 percent in Vermont,
not taking into account United States territories.\17\ Health experts
still do not know what percentage of people in the U.S. will need to be
vaccinated before enough individuals in the community are protected to
meaningfully reduce the spread of the disease from person to person,
how effective the vaccines are against new variants, and how long the
vaccines protect people.\18\ Furthermore, hospitalization and
mechanical respiratory support may still be required in severe cases of
COVID-19 illness, irrespective of vaccination status.\19\
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\11\ FDA, FDA Approves First COVID-19 Vaccine (Aug. 23, 2021),
<a href="https://www.fda.gov/news-events/press-announcements/fda-approves-first-covid-19-vaccine">https://www.fda.gov/news-events/press-announcements/fda-approves-first-covid-19-vaccine</a>.
\12\ FDA, Learn More About COVID-19 Vaccines From the FDA
(content current as of July 12, 2021), <a href="https://www.fda.gov/consumers/consumer-updates/learn-more-about-covid-19-vaccines-fda">https://www.fda.gov/consumers/consumer-updates/learn-more-about-covid-19-vaccines-fda</a>.
\13\ Id. Janssen Biotech Inc., the manufacturer of the third
vaccine granted an EUA by the FDA, is a Janssen Pharmaceutical
Company of Johnson & Johnson.
\14\ CDC, Moderna COVID-19 Vaccine Overview and Safety (updated
June 11, 2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/Moderna.html">https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/Moderna.html</a>; CDC, Pfizer-BioNTech COVID-19
Vaccine Overview and Safety (updated June 24, 2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/Pfizer-BioNTech.html">https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/Pfizer-BioNTech.html</a>.
\15\ CDC, Johnson & Johnson's Janssen COVID-19 Vaccine Overview
and Safety (updated June 23, 2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/janssen.html">https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/janssen.html</a>.
\16\ CDC, COVID Data Tracker--COVID-19 Vaccinations in the
United States (Sept. 09, 2021), <a href="https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-total-admin-rate-total">https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-total-admin-rate-total</a>.
\17\ Id.
\18\ CDC, Key Things to Know About COVID-19 Vaccines (updated
June 25, 2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fvaccines%2F8-things.html">https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fvaccines%2F8-things.html</a>.
\19\ National Insitutes of Health (NIH), COVID-19 Treatment
Guidelines: Care of Critically Ill Adult Patients with COVID-19
(July 08, 2021), <a href="https://www.covid19treatmentguidelines.nih.gov/management/critical-care/summary-recommendations/">https://www.covid19treatmentguidelines.nih.gov/management/critical-care/summary-recommendations/</a>.
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Ongoing research demonstrates that while there is high vaccine
effectiveness, fully vaccinated individuals continue to experience
breakthrough COVID-19 infections and may be either symptomatic or
asymptomatic.\20\ As of April 30, 2021, approximately 10,262
breakthrough infections were reported from 46 U.S. states and
territories.\21\ This is likely a substantial undercount of cases, as
CDC states that the current national surveillance system relies on
voluntary reporting and data are only available for a small segment of
reported cases.\22\ The data are further limited because on May 01,
2021, the CDC transitioned from tracking all reported COVID-19 vaccine
breakthrough infections to only those among patients who are
hospitalized or die.\23\ As of August 30, 2021, CDC data from 49 U.S.
states and territories indicates 12,908 patients with patients with
SARS-CoV-2 breakthrough infections were hospitalized or died.\24\
Testing is available to confirm suspected cases of COVID-19 infection.
At present, the time it takes to receive
[[Page 51783]]
results varies based on, among other factors, type of test used,
laboratory capacity, and geographic location.\25\ CDC guidance states
that individuals who were exposed to a person with COVID-19 may later
develop symptoms and should self-quarantine for 14 days, even with
receipt of negative test results.\26\
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\20\ CDC, Morbidity and Mortality Weekly Report (MMWR): COVID-19
Vaccine Breakthrough Infections Reported to CDC--United States,
January 1-April 30, 2021 (May 28, 2021), <a href="https://www.cdc.gov/mmwr/volumes/70/wr/mm7021e3.htm">https://www.cdc.gov/mmwr/volumes/70/wr/mm7021e3.htm</a>.
\21\ Id.
\22\ Id.
\23\ Id.
\24\ CDC, COVID-19 Vaccine Breakthrough Case Investigation and
Reporting (Sept. 01, 2021), <a href="https://www.cdc.gov/vaccines/covid-19/health-departments/breakthrough-cases.html">https://www.cdc.gov/vaccines/covid-19/health-departments/breakthrough-cases.html</a>.
\25\ CDC, Overview of Testing for SARS-CoV-2 (COVID-19) (Aug.
02, 2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/hcp/testing-overview.html">https://www.cdc.gov/coronavirus/2019-ncov/hcp/testing-overview.html</a>.
\26\ CDC, Test for Current Infection (Viral Test) (Aug. 02,
2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/testing/diagnostic-testing.html">https://www.cdc.gov/coronavirus/2019-ncov/testing/diagnostic-testing.html</a>.
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There are also multiple variants of the virus that have resulted in
COVID-19 infections in the United States, including the now predominant
Delta variant.\27\ While vaccination is key in preventing severe
disease like hospitalization or death, it may be less effective in
preventing infection or transmission of the Delta variant since it is
more contagious.\28\ Significant Delta variant-related outbreaks have
occurred in the United States in recent months, most recently in
Massachusetts after multiple large-scale summer events were held from
July 3-17, 2021.\29\ After these events, 469 individuals contracted the
virus, 74 percent of whom were fully vaccinated, and the outbreak was a
major catalyst in the CDC's subsequent guidance to resume indoor mask
mandates.\30\ According to statistical models and genomic surveillance
programs, the Delta variant now accounts for approximately 98.9 percent
of new cases nationally and current data shows that it is having a
disproportionately severe impact on unvaccinated populations.\31\
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\27\ CDC, SARS-CoV-2 Variant Classifications and Definitions;
Cov-Lineages, Global Lineage Report: B.1.617.2.
\28\ CDC, Delta Variant: What We Know About the Science.
\29\ CDC, Outbreak of SARS-CoV-2 Infections, Including COVID-19
Vaccine Breakthrough Infections, Associated with Large Public
Gatherings--Barnstable County, Massachusetts, July 2021 (Aug. 06,
2021), <a href="http://www.cdc.gov/mmwr/volumes/70/wr/mm7031e2.htm">www.cdc.gov/mmwr/volumes/70/wr/mm7031e2.htm</a>.
\30\ Id.
\31\ CDC, COVID Data Tracker: Variant Proportions (Sept. 07,
2021), <a href="https://covid.cdc.gov/covid-data-tracker/#variant-proportions">https://covid.cdc.gov/covid-data-tracker/#variant-proportions</a>; CDC, Delta Variant: What We Know About the Science.
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There are numerous challenges to resuming pre-COVID-19 operations,
largely due to the emergence of the Delta variant. CDC has posted
guidance for states, businesses, and the general public emphasizing the
need for continued mask mandates on public transportation and
airplanes, as wearing masks that completely cover the mouth and nose
reduces the spread of COVID-19.\32\ CDC is also encouraging restaurants
and bars to maintain social distancing and mask rules and asking
individuals to avoid large events and gatherings.\33\ As a result of
CDC's renewed mask guidance, the Office of Management and Budget (OMB)
issued renewed mask guidelines on July 27, 2021, for employees,
contractors, and visitors to Federal buildings which went into effect
for DHS on July 28, 2021.\34\
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\32\ CDC, Requirement for Face Masks on Public Transportation
Conveyances and at Transportation Hubs (Aug. 27, 2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/travelers/face-masks-public-transportation.html">https://www.cdc.gov/coronavirus/2019-ncov/travelers/face-masks-public-transportation.html</a>.
\33\ CDC, Public Health Guidance for Potential COVID-19 Exposure
Associated with Travel (July 02, 2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html">https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html</a>; CDC, Guidance for
Organizing Large Events and Gatherings (May 20, 2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/considerations-for-events-gatherings.html">https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/considerations-for-events-gatherings.html</a>; CDC, Considerations for
Restaurant and Bar Operators (June 14, 2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/business-employers/bars-restaurants.html">https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/business-employers/bars-restaurants.html</a>.
\34\ Department of Homeland Security, Effective Immediately,
Updated Mask Guidance for All DHS Workspaces (July 28, 2021).
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Further, CDC predictive modeling forecasts a continued national
increase in new cases, hospitalizations, and deaths over four week
intervals. By the week ending October 2, 2021, forecasts expect a
weekly increase of approximately 430,000 to 1,520,000 new cases, 6,400
to 19,500 new hospitalizations, and 6,900 to 18,000 new deaths, taking
into account variations in social distancing and prevention measures
across states. Variations beyond social distancing, including the
reopening of schools, may also have an impact on these rates.\35\
Studies conducted early in the pandemic indicated low rates of
transmission among children and as of September 9, 2021, approximately
62.5 percent of individuals 12 years of age and older were fully
vaccinated.\36\ Since these early studies, infection rates have
increased as opportunities for transmission, including school and
summer camp attendance, expanded.\37\ It has been reported that at
least 1,000 schools across 35 states have closed for in-person learning
because of COVID-19 since the beginning of the 2021 school year.\38\ In
order to minimize the spread, CDC currently recommends screening,
physical distancing, taking precautions when participating in team or
close contact sports, and consistent mask use, as inconsistent mask
policies have contributed to school outbreaks.\39\ Finally, as the
annual influenza season approaches, questions and concerns over
increased transmission of SARS-CoV-2 and decreases in immunity remain.
CDC currently recommends a booster shot beginning in the fall of 2021
for certain individuals who received the Pfizer or Moderna
vaccines.).\40\ CDC's decision to begin booster shots in the fall of
2021 is due to the current information about the vaccine effectiveness
and the impact of variants on vaccine effectiveness.\41\ A recent study
indicated that the infectivity and morbidity rates of COVID-19 are
higher in colder climates and the transmissibility of the virus is
affected by meteorological factors such as temperature and
humidity.\42\ This, alongside the increased demand for healthcare
resources due to seasonal influenza and the low likelihood that herd
immunity will be achieved in 2021, should be taken into account when
developing future intervention measures.\43\
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\35\ CDC, COVID-19 Forecasts: Cases (Sept. 08, 2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/science/forecasting/forecasts-cases.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcases-updates%2Fforecasts-cases.html">https://www.cdc.gov/coronavirus/2019-ncov/science/forecasting/forecasts-cases.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcases-updates%2Fforecasts-cases.html</a>; CDC, COVID-19
Forecasts: Hospitalizations (Sept. 08, 2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/science/forecasting/hospitalizations-forecasts.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcases-updates%2Fhospitalizations-forecasts.html">https://www.cdc.gov/coronavirus/2019-ncov/science/forecasting/hospitalizations-forecasts.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcases-updates%2Fhospitalizations-forecasts.html</a>; CDC,
COVID-19 Forecasts: Deaths (Sept. 08, 2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/science/forecasting/forecasting-us.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcovid-data%2Fforecasting-us.html">https://www.cdc.gov/coronavirus/2019-ncov/science/forecasting/forecasting-us.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcovid-data%2Fforecasting-us.html</a>.
\36\ CDC, COVID Data Tracker--COVID-19 Vaccinations in the
United States; CDC, Science Brief: Transmission of SARS-CoV-2 in K-
12 Schools and Early Care and Education Programs--Updated (July 09,
2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/transmission_k_12_schools.html">https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/transmission_k_12_schools.html</a>.
\37\ Id.
\38\ Jeanine Santucci and Grace Hauck, At least 1,000 schools in
35 states have closed for in-person learning since the start of the
school year: COVID-19 updates, USA TODAY (Sept. 5, 2021), <a href="https://www.usatoday.com/story/news/health/2021/09/05/covid-updates-mu-variant-spreads-hawaii-begs-travelers-stay-away/5735064001/">https://www.usatoday.com/story/news/health/2021/09/05/covid-updates-mu-variant-spreads-hawaii-begs-travelers-stay-away/5735064001/</a>.
\39\ CDC, COVID Data Tracker--COVID--19 Vaccinations in the
United States; CDC, Science Brief: Transmission of SARS-CoV-2 in K-
12 Schools and Early Care and Education Programs--Updated (July 09,
2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/transmission_k_12_schools.html">https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/transmission_k_12_schools.html</a>.
\40\ CDC, COVID-19 Vaccine Booster Shot (Aug. 20, 2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/vaccines/booster-shot.html">https://www.cdc.gov/coronavirus/2019-ncov/vaccines/booster-shot.html</a>.
\41\ Id.
\42\ NIH, The role of seasonality in the spread of COVID-19
pandemic (Feb. 19, 2021), <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7892320/">https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7892320/</a>.
\43\ Id.
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II. Purpose of This Temporary Rule
USCIS continues its efforts to protect the health and safety of the
employees and the public, including: Requiring facial covers for all
employees and members of the public above the age of
[[Page 51784]]
two; \44\ limiting the number of employees and members of the public in
the office; posting social distance guidelines and asking visitors to
answer health screening questions before entering; currently conducting
interviews from separate offices to ensure that employees are not in
the same room as members of the public; and installing plexiglass where
necessary to provide a barrier for employees when social distancing is
not possible.
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\44\ Facial coverings were part of the initial USCIS COVID
mitigation efforts until the CDC and then DHS issued new guidance on
May 14, 2021 that fully vaccinated individuals were no longer
required to wear masks in DHS space and that temperature checks to
enter DHS controlled space were also to be discontinued. On July 28,
2021, DHS issued guidance that all Federal employees, onsite
contractors, and visitors, regardless of vaccination status or level
of COVID transmission in the local area, are required to wear a mask
inside all DHS workspaces and Federal buildings. Further guidance to
the public as to the USCIS Response to COVID-19 and Operational
Status can be found here: <a href="https://www.uscis.gov/about-us/uscis-response-to-covid-19">https://www.uscis.gov/about-us/uscis-response-to-covid-19</a>.
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Between March 10, 2021, and August 8, 2021, USCIS conducted 9,136
asylum interviews, for a total of 16,900 interviews since September 23,
2020.\45\ The original temporary rule, implemented on September 23,
2020, and its extension implemented on March 22, 2021, and other noted
public safety measures have helped mitigate the impact of COVID-19 and
have been effective in keeping our workforce and the public safe. As of
August 9, 2021, there have been 1,927 confirmed cases of COVID-19
exposure among USCIS employees and contractors. The USCIS exposure rate
(6.8%) remains below the national average (10.6%) as of August 7, 2021.
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\45\ Between September 23, 2020 and March 10, 2021, USCIS
conducted 7,764 asylum interviews. 86 FR at 15074.
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Therefore, DHS has determined that it is in the best interest of
the public and USCIS employees and contractors to extend the temporary
rule for another 180 days. Under this extension with modification,
asylum applicants who are unable to proceed with the interview in
English will ordinarily be required to proceed with government-provided
telephonic contract interpreters provided the applicants speak one of
the 47 languages found on the Required Languages for Interpreter
Services Blanket Purchase Agreement/U.S. General Services
Administration Language Schedule (``GSA Schedule''). If the applicant
does not speak or elects to speak a language not on the GSA Schedule,
the applicant will be required to bring his or her own interpreter who
is fluent in English to the interview and the elected language not on
the GSA schedule. DHS is also amending 8 CFR 208.9(h)(1) by allowing,
in USCIS' discretion, an applicant for asylum to provide an interpreter
when a USCIS interpreter is unavailable. Specifically, if a USCIS
interpreter is unavailable, USCIS will either reschedule the interview
and attribute the interview delay to USCIS for the purposes of
employment authorization pursuant to 8 CFR 208.7, or USCIS may, in its
discretion, allow the applicant to provide an interpreter.
DHS incorporates into this second extension with modification, the
justifications, as well as the discussion on the benefits of providing
telephonic contract interpreters in reducing the risk of contracting
COVID-19 for applicants, attorneys, interpreters, and USCIS employees
from the original temporary rule.
III. Discussion of Regulatory Change: 8 CFR 208.9(h) <SUP>46</SUP>
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\46\ The interpreter interview provisions can be found in two
parallel sets of regulations: Regulations under the authority of DHS
are contained in 8 CFR part 208; and regulations under the authority
of the Department of Justice (DOJ) are contained in 8 CFR part 1208.
Each set of regulations contains substantially similar provisions
regarding asylum interview processes, and each articulates the
interpreter requirement for interviews before an asylum officer.
Compare 8 CFR 208.9(g), with 8 CFR 1208.9(g). This temporary final
rule revises only the DHS regulations at 8 CFR 208.9.
Notwithstanding the language of the parallel DOJ regulations in 8
CFR 1208.9, as of the effective date of this action, the revised
language of 8 CFR 208.9(h) is binding on DHS and its adjudications
for 180 days. DHS would not be bound by the DOJ regulation at 8 CFR
1208.9(g).
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DHS has determined that there are reasonable grounds for
considering potential exposure to SARS-CoV-2, including any emerging
variants, as a public health concern and that these grounds are
sufficient to continue to modify the interpreter requirement for asylum
applicants to lower the number of in-person attendees at asylum
interviews. For 180 days following publication of this temporary final
rule, DHS will continue to require non-English speaking asylum
applicants appearing before USCIS to proceed with the asylum interview
using USCIS' interpreter services if they are fluent in one of the 47
languages as discussed in the temporary rule at 85 FR at 59657.\47\ DHS
is also amending 8 CFR 208.9(h)(1) by allowing, in USCIS' discretion,
an applicant for asylum to provide an interpreter when a USCIS
interpreter is unavailable. In these limited circumstances, if a USCIS
interpreter is unavailable, USCIS will either reschedule the interview
and attribute the interview delay to USCIS for the purposes of
employment authorization pursuant to 8 CFR 208.7, or USCIS may, in its
discretion, allow the applicant to provide an interpreter. The
interpreter will be required to follow USCIS COVID-19 protocols in
place at the time of the interview, including sitting in a separate
office. Once this rule is no longer in effect, asylum applicants unable
to proceed with an interview in English before a USCIS asylum officer
will be required to provide their own interpreters under 8 CFR
208.9(g).
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\47\ DHS notes that this extension does not modify 8 CFR
208.9(g); rather the extension temporary rule is written so that any
asylum interviews occurring while the temporary rule is effective
will be bound by the requirements at 8 CFR 208.9(h).
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Allowing an applicant for asylum to provide an interpreter when a
USCIS interpreter is unavailable is important and to the benefit of the
applicant for several reasons. In some instances, due to a variety of
issues including competing demands in other caseloads, contractor
availability, and an increased demand for certain languages, USCIS may
have knowledge in advance of the interview, that a contract interpreter
will not be available for a certain language during the time of the
interview. In those instances, USCIS may notify the applicant that an
interpreter is unavailable and give the applicant an opportunity to
provide their own interpreter for that interview and not cause further
delay in the case. This will help reduce unnecessary reschedules and
prolonged delays and will help alleviate the burden rescheduling the
interview could place on all parties involved, including the applicant,
the applicant's representative (if applicable), and the local USCIS
office. Providing advance notice of the unavailability of an
interpreter and the opportunity for applicants to provide their own
interpreter will make the process more efficient, reduce the number of
delays, and allow applicants to proceed with their interview. This
modification to the government-provided telephonic interpreter
requirement will not disadvantage applicants who cannot provide their
own interpreter. Such an applicant would be in the same position they
would have been without this change to the regulation, and if an
applicant is unable to locate a competent interpreter once notified of
the unavailability of a contract interpreter, the interview will be
rescheduled and the reschedule delay will be attributed to USCIS for
purposes of employment authorization.
While USCIS cannot safely accommodate every interview being
conducted if all applicants are required to bring an interpreter in
person, as explained in this preamble, in these
[[Page 51785]]
limited circumstances where there is advance knowledge of the
unavailability of a contract interpreter and an applicant is able to
locate a competent interpreter, USCIS may, within its discretion,
accommodate the applicant's interpreter by following the same COVID-19
protocols in place at the time of interview that allow applicants and
those necessary to participate in the interview to attend interviews in
person safely. USCIS will continue to apply the COVID-19 protocols in
place at the time of the interview, including relying on available
technology to ensure that the officer, applicant, interpreter,
witnesses, and legal representative sit in separate rooms to fully and
safely participate in the interview while maintaining social
distancing.\48\ Interpreters attending appointments with applicants
under these limited circumstances will also be expected to follow the
USCIS Visitor Policy requiring face coverings, maintaining social
distancing during screening and while in USCIS space, and other
guidance regarding exposure to COVID-19.\49\ This is consistent with
current practices for an applicant who either does not speak a language
on the GSA Schedule or elects to speak a language that is not on the
GSA Schedule, and thus is required to bring his or her own interpreter
to the interview who is fluent in English and the elected language (not
on the GSA Schedule).
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\48\ See USCIS Response to COVID-19: Asylum Appointments,
available at <a href="https://www.uscis.gov/about-us/uscis-response-to-covid-19">https://www.uscis.gov/about-us/uscis-response-to-covid-19</a>.
\49\ See USCIS Visitor Policy, available at <a href="https://www.uscis.gov/about-us/uscis-visitor-policy">https://www.uscis.gov/about-us/uscis-visitor-policy</a>.
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This rule's modification to 8 CFR 208.9(h)(1), giving USCIS
discretion to allow asylum applicants to bring their own interpreter
when a contract interpreter is unavailable will help advance the
agency's mission to fairly adjudicate immigration benefits. By building
in flexibility for USCIS when an interpreter fluent in a language
included in the GSA Schedule will be unavailable at the time of an
asylum interview, USCIS will be better positioned to leverage its
resources. In practice this will involve asylum offices evaluating
their office space capacity and available asylum staff on a continuous
basis to schedule cases in a manner that is consistent with social
distancing guidelines and other noted public safety measures. Because
USCIS will not schedule more cases than capacity permits under the
COVID-19 guidelines, exceptions made to the government-contract
interpreter requirement under this temporary final rule should not
result in increased exposure or individuals occupying the same physical
space at a given time. These practices will also help address the
recent emergence of the Delta variant, which as previously discussed,
presents numerous challenges to resuming pre-COVID-19 operations, and
which can be mitigated through the safety measures currently employed
by USCIS.\50\ USCIS will continue to employ the same space planning and
scheduling mechanisms to factor in the limited cases where USCIS is
unable to provide a contract interpreter. USCIS will therefore have
more flexibility to adapt to operational demands by proactively
addressing the needs of applicants who would otherwise remain
uninterviewed.
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\50\ See Delta Variant: What We Know About the Science,
available at <a href="https://www.cdc.gov/coronavirus/2019-ncov/variants/delta-variant.html">https://www.cdc.gov/coronavirus/2019-ncov/variants/delta-variant.html</a> (last visited Aug. 31, 2021).
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Given the unique nature of the pandemic and the multiple challenges
it has presented in the context of USCIS operations, the agency has had
to modify its policies and procedures to adapt. Through the original
temporary final rule and the first extension, USCIS adapted its
procedures to keep the workforce and public safe while also striving to
serve the customer. USCIS has adapted in other ways by developing
electronic workflows for conducting interviews and completing the
adjudication, and by monitoring language trends and interpreter
availability. This second extension with the modification for
applicants to bring their own interpreter under certain circumstances,
is in keeping with the original goals of the temporary final rule, and
gives the agency an opportunity to more effectively meet the needs of
individuals seeking protection.
DHS noted in the original temporary final rule and first extension
that it would evaluate the public health concerns and resource
allocations to determine whether to extend the rule. DHS has determined
that extending this rule is necessary for public safety, and
accordingly, DHS is extending this rule for 180 days unless it is
further extended at a later date. This temporary rule continues to
apply to all asylum interviews conducted by USCIS across the nation.
USCIS has determined that an extension of 180 days is appropriate given
that: (1) The pandemic is ongoing; \51\ (2) several variants of the
virus are circulating in the United States, with the highly contagious
Delta variant as the dominant strain; \52\ (3) while vaccines are
widely available, data indicates a wide disparity in the percentages of
fully vaccinated individuals by state, and fully vaccinated individuals
continue to experience breakthrough SARS-CoV-2 infections; \53\ and (4)
certain variables, including the reopening of schools and cold weather
seasonal changes, are likely to cause an increase in COVID-19
infections.\54\ Health experts are still learning how easily variants
of the virus can be transmitted and how effectively the currently
approved and authorized vaccines provide protection. Prior to the
expiration of this extension to the temporary rule with modification,
DHS will again evaluate the public health concerns and resource
allocations to determine if another extension is appropriate to further
the goals of promoting public safety. If necessary, DHS would publish
any such extension via a rulemaking in the Federal Register.
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\51\ See 86 FR 11599; 85 FR 15337; HHS, Renewal of Determination
that a Public Health Emergency exists.
\52\ CDC, Delta Variant: What We Know About the Science.
\53\ CDC, MMWR; CDC, COVID Data Tracker--COVID-19 Vaccinations
in the United States.
\54\ CDC, COVID-19 Forecasts: Cases; NIH, The role of
seasonality in the spread of COVID-19 pandemic; Johns Hopkins
Bloomberg School of Public Health, Will There be a Fall 2021
Resurgence of COVID-19 in the U.S.? (June 17, 2021), <a href="https://publichealth.jhu.edu/2021/will-there-be-a-fall-2021-resurgence-of-covid-19-in-the-us">https://publichealth.jhu.edu/2021/will-there-be-a-fall-2021-resurgence-of-covid-19-in-the-us</a>.
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IV. Regulatory Requirements
A. Administrative Procedure Act (APA)
DHS is issuing this extension, including the modification to allow,
in USCIS' discretion, an applicant for asylum to provide an interpreter
when a USCIS interpreter is unavailable, as a temporary final rule
pursuant to the APA's ``good cause'' exception. 5 U.S.C. 553(b)(B). DHS
may forgo notice-and-comment rulemaking and a delayed effective date
because the APA provides an exception from those requirements when an
agency ``for good cause finds . . . that notice and public procedure
thereon are impracticable, unnecessary, or contrary to the public
interest.'' 5 U.S.C. 553(b)(B); see 5 U.S.C. 553(d)(3).
The good cause exception for forgoing notice-and-comment rulemaking
``excuses notice and comment in emergency situations, or where delay
could result in serious harm.'' Jifry v. FAA, 370 F.3d 1174, 1179 (D.C.
Cir. 2004). Although the good cause exception is ``narrowly construed
and only reluctantly countenanced,'' Tenn. Gas Pipeline Co. v. FERC,
969 F.2d 1141, 1144 (D.C. Cir 1992), DHS has appropriately invoked the
exception in this case, for the reasons set forth in this
[[Page 51786]]
temporary final rule. Additionally, on multiple occasions, agencies
have relied on this exception to promulgate both communicable disease-
related \55\ and immigration-related \56\ interim rules, as well as
extend such rules.\57\
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\55\ HHS Control of Communicable Diseases; Foreign Quarantine,
85 FR 7874 (Feb. 12, 2020) (interim final rule to enable the CDC
``to require airlines to collect, and provide to CDC, certain data
regarding passengers and crew arriving from foreign countries for
the purposes of health education, treatment, prophylaxis, or other
appropriate public health interventions, including travel
restrictions''); Control of Communicable Diseases; Restrictions on
African Rodents, Prairie Dogs, and Certain Other Animals, 68 FR
62353 (Nov. 4, 2003) (interim final rule to modify restrictions to
``prevent the spread of monkeypox, a communicable disease, in the
United States.'').
\56\ See, e.g., Visas: Documentation of Nonimmigrants Under the
Immigration and Nationality Act, as Amended, 81 FR 5906, 5907 (Feb.
04, 2016) (interim rule citing good cause to immediately require a
passport and visa from certain H2-A Caribbean agricultural workers
to avoid ``an increase in applications for admission in bad faith by
persons who would otherwise have been denied visas and are seeking
to avoid the visa requirement and consular screening process during
the period between the publication of a proposed and a final
rule''); Suspending the 30-Day and Annual Interview Requirements
From the Special Registration Process for Certain Nonimmigrants, 68
FR 67578, 67581 (Dec. 02, 2003) (interim rule claiming the good
cause exception for suspending certain automatic registration
requirements for nonimmigrants because ``without [the] regulation
approximately 82,532 aliens would be subject to 30-day or annual re-
registration interviews'' over a six-month period).
\57\ See, e.g., Temporary Changes to Requirements Affecting H-2A
Nonimmigrants Due to the COVID-19 National Emergency: Partial
Extension of Certain Flexibilities, 85 FR 51304 (Aug. 20, 2020)
(temporary final rule extending April 20, 2020 temporary final
rule); CDC, Temporary Halt in Residential Evictions To Prevent the
Further Spread of COVID-19, 86 FR 34010 (July 01, 2021) (extension
order).
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DHS is publishing this second extension, with modification, as a
temporary final rule because of the continuing COVID-19 crisis and
incorporates into this extension with modification the discussion of
good cause from the original and extension temporary rules. As
discussed earlier in this preamble, on February 24, 2021, President
Biden issued a notice on the continuation of the state of the National
Emergency concerning the COVID-19 pandemic.\58\ Effective July 20,
2021, the Secretary of Health and Human Services renewed the
determination that ``a public health emergency exists and has existed
since January 27, 2020 nationwide.'' \59\
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\58\ 86 FR 11599.
\59\ HHS, Renewal of Determination that a Public Health
Emergency Exists (July 19, 2021), <a href="https://www.phe.gov/emergency/news/healthactions/phe/Pages/COVID-19July2021.aspx">https://www.phe.gov/emergency/news/healthactions/phe/Pages/COVID-19July2021.aspx</a>; HHS, Renewal of
Determination that a Public Health Emergency Exists (July 19, 2021);
Notice on the Continuation of the National Emergency Concerning the
Coronavirus Disease 2019 (COVID-19) Pandemic; Proclamation 9994 of
March 13, 2020, Declaring a National Emergency Concerning the
Coronavirus Disease (COVID-19) Outbreak.
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As of September 9, 2021, there have been approximately 222,406,582
cases of COVID-19 identified globally, resulting in approximately
4,592,934 deaths; approximately 40,152,521 cases have been identified
in the United States, with about 1,297,399 new cases being identified
in the 7 days preceding September 5th, and approximately 646,131
reported deaths due to the disease.\60\ In the week preceding September
5th, the United States was the country that reported the highest number
of new cases, with a 38 percent increase.\61\
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\60\ WHO, WHO Coronavirus (COVID-19) Dashboard; WHO, Weekly
Epidemiological Update.
\61\ WHO, WHO Coronavirus (COVID-19) Dashboard.
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Additionally, at least four notable variants of the virus that
causes COVID-19 have been reported in the United States, including the
now predominant Delta variant.\62\ Evidence suggests that these
variants may spread faster and more easily than others and at least one
variant may be associated with an increased risk of death.\63\ Although
vaccines are now widely accessible, there is wide disparity in the
percentages of vaccinated individuals by state,\64\ and experts still
do not know the percentage needed to reach herd immunity, as well as
how effective the vaccines are against new variants, and how long
vaccines protect people.\65\
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\62\ CDC, Variants of the Virus.
\63\ CDC, Variants of the Virus.
\64\ CDC, COVID Date Tracker.
\65\ CDC, Key Things to Know About COVID-19 Vaccines.
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Ongoing research demonstrates that while there is high vaccine
effectiveness, fully vaccinated individuals continue to experience
breakthrough COVID-19 infections and may be either symptomatic or
asymptomatic.\66\ As of April 30, 2021, 10,262 SARS-CoV-2 breakthrough
infections were reported from 46 U.S. states and territories.\67\ This
data is limited, however, because most breakthrough infections are
voluntarily reported, and on May 1, 2021, CDC began tracking
breakthrough infections only where a patient is hospitalized or
dies.\68\ As of August 30, 2021, CDC received reports from 49 U.S.
states and territories of 12,908 patients with SARS-CoV-2 breakthrough
infections who were hospitalized or died.\69\
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\66\ CDC, MMWR.
\67\ Id.
\68\ Id.
\69\ CDC, COVID-19 Vaccine Breakthrough Case Investigation and
Reporting.
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The provision allowing an applicant for asylum, in USCIS'
discretion, to provide an interpreter when a USCIS interpreter is
unavailable, is a measure that allows USCIS and the applicant for
asylum to proceed with the interview under the same COVID-19 mitigation
procedures that are employed when accommodating other participants in
the asylum interview. As previously discussed in Section III of the
preamble, the COVID-19 pandemic is a rapidly changing situation, and it
is difficult to anticipate how the disruptions caused by the crisis
will manifest themselves. Given the unique nature of the pandemic and
the multiple challenges it has presented in the context of USCIS
operations, the agency has had to modify its policies and procedures to
adapt to the COVID-19 public health emergency. USCIS expects the
provision to allow USCIS to address this rapidly changing situation
caused by the COVID-19 pandemic with more flexibility to best respond
to the continuing stream of new asylum applications and the need to
adjudicate them promptly. As stated previously, competing demands in
other caseloads, contractor availability, and an increased demand for
certain languages, have impacted USCIS' ability to consistently provide
contract interpreters to applicants at the time of the interview.
Throughout the COVID-19 pandemic, USCIS has continued to experience an
increase in the affirmative caseload, which, in turn, has created
challenges in accommodating the interpretation needs of asylum
applicants. Surges in other case types have also required USCIS to
divert contract interpreter resources away from affirmative asylum.
These increases necessitate an immediate change to address a growing
and more diverse population of applicants requesting asylum and needing
interpreters.
As discussed in Section III of the preamble, an applicant who
either does not speak or elects to speak a language not on the GSA
Schedule is required to bring his or her own interpreter to the
interview who is fluent in English and the elected language not on the
GSA Schedule. Allowing an asylum applicant, in USCIS' discretion, to
provide an interpreter when a USCIS interpreter is unavailable, is the
equivalent to and is consistent with the practice of allowing an
applicant to do the same when a USCIS interpreter is available. It is
also unnecessary to seek comment on the change this temporary rule
makes to now allow, in USCIS' discretion, an asylum applicant to
provide an interpreter when a USCIS interpreter is unavailable, because
the obligation of the applicant will not have
[[Page 51787]]
changed, the applicant will benefit from being allowed to bring their
own interpreter, and the applicant would be in the same position they
would have been without this action.
For the reasons stated, including the need to be responsive to the
operational demands and challenges caused by the ongoing COVID-19
pandemic, DHS believes it has good cause to determine that ordinary
notice and comment procedure is impracticable for this temporary
action, including the modification, and that moving expeditiously to
make this change is in the best interest of the public.
Based on the continuing health emergency, DHS has renewed mask
guidelines and other mitigation measures, and concluded that the good
cause exceptions in 5 U.S.C. 553(b)(B) and (d)(3) apply to this
temporary final rule extension with modification. Delaying
implementation of this rule until the conclusion of notice-and-comment
procedures and the 30-day delayed effective date would be impracticable
and contrary to the public interest due to the need to continue agency
operations, while continuing to mitigate the risks associated with the
spread of COVID-19. Additionally, certain variables, including the
reopening of schools, cold weather seasonal changes, and the annual
influenza, are likely to cause an increase in infections.
As of August 8, 2021, USCIS had 406,801 asylum applications, on
behalf of 638,893 noncitizens, pending final adjudication. Over 94
percent of these pending applications are awaiting an interview by an
asylum officer. The USCIS backlog will continue to increase at a faster
pace if USCIS is unable to safely and efficiently conduct asylum
interviews.\70\
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\70\ DHS recognizes that the backlog has increased since the
original temporary final rule was extended; however, if all
applicants were required to bring their own interpreter as was done
pre-COVID-19, the interpreter would generally have to sit in a
separate office during the interview to mitigate potential COVID-19
exposure, thereby reducing available office space to schedule
additional interviews in a safe manner. This would likely increase
the backlog at a faster rate than under this rule.
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This temporary final rule extension with modification is
promulgated as a response to COVID-19 and emerging variants. It is
temporary, limited in application to only those asylum applicants who
cannot proceed with the interview in English, and narrowly tailored to
mitigate the spread of COVID-19. To not extend such a measure could
cause serious and far-reaching public safety and health effects.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996,
requires an agency to prepare and make available to the public a
regulatory flexibility analysis that describes the effect of the rule
on small entities (i.e., small businesses, small organizations, and
small governmental jurisdictions). A regulatory flexibility analysis is
not required when a rule is exempt from notice-and-comment rulemaking.
C. Unfunded Mandates Reform Act of 1995
This temporary final rule extension with modification will not
result in the expenditure by state, local, and tribal governments, in
the aggregate, or by the private sector, of $100 million or more in any
one year, and it will not significantly or uniquely affect small
governments. Therefore, no actions were deemed necessary under the
provisions of the Unfunded Mandates Reform Act of 1995.
D. Congressional Review Act
OMB's Office of Information and Regulatory Affairs has determined
that this action is not a major rule as defined by Subtitle E of the
Small Business Regulatory Enforcement Fairness Act of 1996 (also known
as the Congressional Review Act). 5 U.S.C. 804(2). This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.
E. Executive Order 12866 Executive Order 13563
Executive Orders (E.O.) 12866 and 13563 direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
reducing costs, harmonizing rules, and promoting flexibility. This rule
is designated a significant regulatory action under E.O. 12866.
Accordingly, the Office of Management and Budget (OMB) has reviewed
this regulation. DHS, however, is proceeding under the emergency
provision of Executive Order 12866 Section 6(a)(3)(D) based on the need
to move expeditiously during the current public health emergency.
This action will continue to help asylum applicants proceed with
their interviews in a safe manner, while protecting agency staff. As a
result of the first temporary rule extension, between March 10, 2021,
and August 8, 2021, USCIS conducted 9,136 asylum interviews, with
interpreters available telephonically. This second extension of the
temporary rule with modification is not expected to result in any
additional costs to the government. In addition, even with the
provision that would permit, at USCIS' discretion, an applicant for
asylum to provide an interpreter when a contract interpreter is
unavailable, there are no additional costs to the applicant relative to
what would be the requirements if the earlier temporary final rule
(TFR) were not extended. As discussed previously in Section III of the
preamble, in those limited circumstances where a USCIS interpreter is
unavailable and USCIS permits the applicant to provide their own
interpreter, the interpreter will be required to follow USCIS COVID-19
protocols in place at the time of the interview, including, but not
limited to, sitting in a separate office. Following those COVID-19
protocols will not result in any additional costs for either the
applicant or the interpreter.
As previously explained, the contract interpreters will be provided
at no cost to the applicant. USCIS already has an existing contract to
provide telephonic interpretation and monitoring in interviews for all
of its case types. USCIS has provided monitors for many years. Almost
all interviews that utilize a USCIS provided interpreter after this
rulemaking would have had a contracted monitor under the status quo. As
the cost of monitoring and interpretation are identical under the
contract and monitors will no longer be needed for these contract
interpreter interviews, the extension of this portion of this rule is
projected to be cost neutral or negligible as USCIS is already paying
for these services even without this rule.
USCIS anticipates that there would only be limited circumstances
where a contract interpreter would be unavailable. As previously
discussed in Section III of the preamble, in those limited
circumstances where a contract interpreter is unavailable, USCIS will
either reschedule the interview and attribute the interview delay to
USCIS for the purposes of employment authorization pursuant to 8 CFR
208.7, or USCIS may, in its discretion, allow
[[Page 51788]]
the applicant to provide an interpreter. In such cases, the applicant
would be in the same position they would have been without this action.
DHS recognizes there are both quantitative and qualitative benefits
that could be realized by providing an applicant for asylum the
opportunity to bring their own interpreter when a contract interpreter
is unavailable, such as the costs avoided that would be incurred
through rescheduling if a contract interpreter is unavailable--both for
the applicant and USCIS, and the overall positive effect on applicants
of having their asylum application timely adjudicated. Once this rule
is no longer in effect, asylum applicants unable to proceed with an
interview before a USCIS asylum officer in English will again be
required to provide their own interpreters under 8 CFR 208.9(g).
F. Executive Order 13132 (Federalism)
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
G. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in section 3(a)
and 3(b)(2) of Executive Order 12988.
H. Paperwork Reduction Act
This rule does not propose new, or revisions to existing,
``collection[s] of information'' as that term is defined under the
Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter
35, and its implementing regulations, 5 CFR part 1320. As this action
would only span 180 days, USCIS does not anticipate a need to update
the Form I-589, Application for Asylum and for Withholding of Removal,
despite the existing language on the form instructions regarding
interpreters, because it will be primarily rescheduling interviews that
were cancelled due to COVID-19. USCIS will post updates on its I-589
website, <a href="https://www.uscis.gov/i-589">https://www.uscis.gov/i-589</a>, and other asylum and relevant web
pages regarding the new interview requirements in this regulation, as
well as provide personal notice to applicants via the interview notices
issued to applicants prior to their interview.
List of Subjects in 8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
Accordingly, for the reasons set forth in the preamble, the
Secretary of Homeland Security amends 8 CFR part 208 as follows:
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
1. The authority citation for part 208 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Pub. L. 110-229; 8 CFR part 2; Pub. L. 115-218.
0
2. Effective from September 20, 2021, through March 16, 2022, amend
Sec. 208.9 by revising paragraphs (h) introductory text and (h)(1)(i)
to read as follows:
Sec. 208.9 Procedure for interview before an asylum officer.
* * * * *
(h) Asylum applicant interpreters. For asylum interviews conducted
between September 21, 2021, through March 16, 2022:
(1) * * *
(i) If a USCIS interpreter is unavailable, USCIS will either
reschedule the interview and attribute the interview delay to USCIS for
the purposes of employment authorization pursuant to Sec. 208.7, or
USCIS may, in its discretion, allow the applicant to provide an
interpreter.
* * * * *
Alejandro Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2021-20161 Filed 9-16-21; 8:45 am]
BILLING CODE 9111-97-P
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</html>Indexed from Federal Register on September 17, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.