Proposed Rule2026-03595
Employment Authorization Reform for Asylum Applicants
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
February 23, 2026
Issuing agencies
Homeland Security Department
Abstract
The U.S. Department of Homeland Security (DHS) proposes to modify regulations governing applications for asylum and withholding of removal (asylum applications) and employment authorization based on a pending asylum application. The proposed rule would change filing and eligibility requirements for aliens requesting employment authorization and an employment authorization document (EAD) based on a pending asylum application. The changes include pausing acceptance of EAD applications from asylum applicants during periods when affirmative asylum average processing time exceeds 180 days, extending the waiting period to apply for employment authorization to 365 days, changing EAD application processing time requirements, and adding eligibility requirements.
Full Text
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[Federal Register Volume 91, Number 35 (Monday, February 23, 2026)]
[Proposed Rules]
[Pages 8616-8700]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-03595]
[[Page 8615]]
Vol. 91
Monday,
No. 35
February 23, 2026
Part III
Department of Homeland Security
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8 CFR Parts 208 and 274a
Employment Authorization Reform for Asylum Applicants; Proposed Rule
Federal Register / Vol. 91, No. 35 / Monday, February 23, 2026 /
Proposed Rules
[[Page 8616]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 208 and 274a
[CIS No. 2799-25; DHS Docket No. USCIS-2025-0370]
RIN 1615-AC97
Employment Authorization Reform for Asylum Applicants
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The U.S. Department of Homeland Security (DHS) proposes to
modify regulations governing applications for asylum and withholding of
removal (asylum applications) and employment authorization based on a
pending asylum application. The proposed rule would change filing and
eligibility requirements for aliens requesting employment authorization
and an employment authorization document (EAD) based on a pending
asylum application. The changes include pausing acceptance of EAD
applications from asylum applicants during periods when affirmative
asylum average processing time exceeds 180 days, extending the waiting
period to apply for employment authorization to 365 days, changing EAD
application processing time requirements, and adding eligibility
requirements.
DATES: Comments on this proposed rule, including the proposed
information collections, must be received on or before April 24, 2026.
The electronic Federal Docket Management System will accept comments
prior to midnight Eastern time at the end of that day.
ADDRESSES: You may submit comments on the entirety of this proposed
rulemaking package, identified by DHS Docket No. 2025-0370, through the
Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>. In accordance
with 5 U.S.C. 553(b)(4), the summary of this rule may also be found at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the website instructions for
submitting comments.
Comments must be submitted in English, or an English translation
must be provided. Comments submitted in a manner other than via <a href="http://www.regulations.gov">http://www.regulations.gov</a>, including emails or letters sent to DHS or U.S.
Citizenship and Immigration Services (USCIS) officials, will not be
considered comments on the proposed rule and may not receive a response
from DHS. Please note that DHS and USCIS cannot accept any comments
that are hand-delivered or couriered. In addition, USCIS cannot accept
comments contained on any form of digital media storage devices, such
as CDs/DVDs and USB drives. USCIS is also not accepting mailed comments
at this time. If you cannot submit your comment by using <a href="http://www.regulations.gov">http://www.regulations.gov</a>, please contact Samantha Deshommes, Chief,
Regulatory Coordination Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
by telephone at (240) 721-3000 for alternate instructions.
FOR FURTHER INFORMATION CONTACT: 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 20746; telephone (240) 721-3000 (not a toll-free
call).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of the Major Provisions of the Regulatory Action
1. Amend 8 CFR 208.3(c)(3), Form of Application
2. Amend 8 CFR 208.7(a), Employment Authorization
a. Biometrics
b. Extension of 180-Day Asylum EAD Clock to 365 Calendar Day
Waiting Period
c. Recommended Approvals
d. Processing Timeframes
e. Criminal Ineligibility Grounds
f. Effect of a Denial of Asylum Application
g. One-Year Filing Deadline
h. Illegal Entry
i. Use of Derogatory Information
j. Pause and Re-Start of Acceptance of Initial (c)(8) EAD
Applications
3. Amend 8 CFR 208.7(b), Renewal
4. Amend 8 CFR 208.7(c), Termination
5. Amend 8 CFR 274a.12(c)(8)
6. Amend 8 CFR 274a.13, Application for Employment Authorization
7. Technical and Conforming Updates to the Proposed Amendments
C. Impact of Effective Date of the Final Rule
1. Processing Timeframe
2. Waiting Period To Apply for and Receive an Initial (c)(8) EAD
3. Pause and Re-Start of (c)(8) EAD Application Acceptance
D. Summary of Benefits and Costs
E. Legal Authority
F. Severability
III. Background and Purpose
A. Introduction
B. Efforts To Reform the Asylum System
C. Continued Need for Reform
D. Background
1. Eligibility for Asylum
2. Affirmative vs. Defensive Filings
3. Employment Authorization for Asylum Applicants
a. 180-Day Asylum EAD Clock
b. 30-Day Processing Timeframe
c. Impact of Denial of the Asylum Application on Employment
Authorization
IV. Related Rulemakings
A. Discretionary EAD NPRM
B. Biometrics NPRM
V. Discussion of Proposed Rule
A. Pause and Re-Start of (c)(8) EAD Application Acceptance
B. 365 Calendar Day Waiting Period To Apply for (c)(8) EADs
C. Changes to Filing Requirements for Asylum Applications
D. Processing Timeframe for (c)(8) EADs
E. Biometrics Requirements
F. Eligibility Requirements
1. One-Year Filing Deadline
2. Criminal Bars
3. Illegal Entry
G. Discretionary Decisions
H. Recommended Approvals
I. Termination of Employment Authorization
1. Asylum Applications No Longer Pending Before DHS and DOJ
2. Maintaining an EAD While Seeking Administrative or Judicial
Review
3. Limited Exception for Unaccompanied Alien Children
J. Prioritizing the Adjudication of an Asylum Application Due to
Derogatory Information in the Form I-765 Adjudication
K. Corresponding DOJ Regulations
VI. Statutory and Regulatory Requirements
A. Executive Orders 12866 (Regulatory Planning and Review),
13563 (Improving Regulation and Regulatory Review), and 14192
(Unleashing Prosperity Through Deregulation)
1. Summary of Proposed Provisions and Benefits and Costs Impacts
2. Background and Purpose
3. Baseline and Population
4. Wages and Opportunity Costs of Time
5. Forms, Time Burdens, and Fees
6. Monetized Impacts (Costs, Benefits, and Transfers)
a. Variables and Descriptions
b. Module 1: EAD Application Acceptance Pause
c. Module 2: EAD Issuance Provisions
7. Distributional Effects of the Monetized Impacts
8. Impacts on Labor Market
9. Other Impacts Not Estimated
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. Executive Order 13132 (Federalism)
E. Executive Order 12988 (Civil Justice Reform)
F. Family Assessment
G. Executive Order 13175(Consultation and Coordination With
Indian Tribal Governments)
H. National Environmental Policy Act
I. Paperwork Reduction Act
1. Paperwork Reduction Act--Collection of Information
2. Form I-589
3. Form I-765
J. Executive Order 14192 (Unleashing Prosperity Through
Deregulation)
[[Page 8617]]
K. Executive Order 12630 (Governmental Actions and Interference
With Constitutionally Protected Property Rights)
Table of Abbreviations
AO--asylum officer
APA--Administrative Procedure Act
BIA--Board of Immigration Appeals
BLS--U.S. Bureau of Labor Statistics
CBP--U.S. Customs and Border Protection
CFR--Code of Federal Regulations
DHS--U.S. Department of Homeland Security
DOJ--U.S. Department of Justice
EAD--employment authorization document
E.O.--Executive Order
EOIR--Executive Office for Immigration Review
Form I-589--Application for Asylum and for Withholding of Removal
Form I-765--Application for Employment Authorization
FY--Fiscal Year
HSA--Homeland Security Act of 2002
ICE--U.S. Immigration and Customs Enforcement
IIRIRA--Illegal Immigration Reform and Immigrant Responsibility Act
of 1996
IJ--Immigration Judge
INA--Immigration and Nationality Act
INS--Immigration and Naturalization Service
LIFO--last in, first out
NEPA--National Environmental Policy Act
NPRM--notice of proposed rulemaking
NTA--Notice to Appear
OMB--Office of Management and Budget
PRA--Paperwork Reduction Act
RFA--regulatory flexibility analysis
RIA--regulatory impact analysis
SBREFA--Small Business Regulatory Enforcement Fairness Act of 1996
(Congressional Review Act)
Secretary--Secretary of Homeland Security
TVPRA--William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008
UAC--Unaccompanied Alien Child
UMRA--Unfunded Mandates Reform Act of 1995
U.S.C.--United States Code
USCIS--U.S. Citizenship and Immigration Services
I. Public Participation
DHS invites all interested parties to participate in this
rulemaking by submitting written data, views, comments and arguments on
all aspects of this proposed rule. DHS also invites comments that
relate to the economic, environmental, or federalism effects that might
result from this proposed rule. Comments must be submitted in English,
or an English translation must be provided. Comments that will provide
the most assistance to USCIS in implementing these changes will
reference a specific portion of the proposed rule, explain the reason
for any recommended change, and include data, information, or authority
that support such recommended change. Comments submitted in a manner
other than via <a href="http://www.regulations.gov">http://www.regulations.gov</a>, including emails or letters
sent to DHS or USCIS officials, will not be considered comments on the
proposed rule and may not receive a response from DHS.
Instructions: If you submit a comment, you must include the agency
name (U.S. Citizenship and Immigration Services) and the DHS Docket No.
USCIS-2025-0370 for this rulemaking. Regardless of the method used for
submitting comments or material, all submissions will be posted,
without change, to the Federal eRulemaking Portal at <a href="http://www.regulations.gov">http://www.regulations.gov</a>, and will include any personal information you
provide. Therefore, submitting this information makes it public. You
may wish to consider limiting the amount of personal information that
you provide in any voluntary public comment submission you make to DHS.
DHS may withhold information provided in comments from public viewing
that it determines may impact the privacy of an individual or is
offensive. For additional information, please read the Privacy and
Security Notice available at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Docket: For access to the docket and to read background documents
or comments received, go to <a href="http://www.regulations.gov">http://www.regulations.gov</a>, referencing DHS
Docket No. USCIS-2025-0370. You may also sign up for email alerts on
the online docket to be notified when comments are posted or a final
rule is published.
II. Executive Summary
A. Purpose of the Regulatory Action
The overarching goals of this proposed rulemaking are to enhance
the benefit integrity of requests for asylum and employment
authorization based on a pending asylum application, address national
security and public safety concerns, and mitigate undue strains on
DHS's operational resources by reducing the incentive for aliens to
file frivolous, fraudulent, or otherwise meritless asylum applications
as a means to obtain employment authorization, and thereby facilitating
faster and more efficient adjudications of meritorious asylum claims
and pending asylum employment authorization applications. USCIS'
receipts of initial applications for employment authorization based on
a pending asylum application have reached a historic high and USCIS'
adjudicative resources are strained.
To enhance benefit integrity, protect national security, and reduce
resource strains on USCIS, DHS proposes changes to its regulations
regarding EAD applications filed by asylum applicants \1\ under 8 CFR
274a.12(c)(8) (``(c)(8) category''). DHS proposes to codify in
regulations to pause USCIS' acceptance of initial Form I-765,
Application for Employment Authorization (``EAD application''), filings
in the (c)(8) category when USCIS' average processing time for
affirmative asylum applications exceeds 180 days. This proposed rule
also increases the waiting period to apply for (c)(8) EADs to 365
calendar days, extends the processing timeframe for USCIS to adjudicate
initial (c)(8) EAD applications, and introduces additional eligibility
requirements for (c)(8) EADs. Lastly, the proposed rule also impacts
affirmative asylum processing by allowing USCIS to prioritize
adjudication of asylum applications when derogatory information is
found during review of the EAD application. Allowing asylum officers to
prioritize an affirmative asylum application based on derogatory
information found during the employment authorization application
process will improve USCIS' national security and public safety posture
while also allowing the agency to more efficiently triage and process
potentially frivolous, fraudulent, or otherwise meritless cases.
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\1\ For purposes of this rule, the term ``asylum applicant'' is
generally used interchangeably with ``aliens who applied for
asylum,'' and ``aliens with a pending asylum application.''
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As discussed below, there is historical precedent for the
provisions proposed in this rule, and DHS believes that the
promulgation of this rule will reduce frivolous, fraudulent, or
otherwise meritless asylum applications that are filed for the sole
purpose of obtaining employment authorization. Ultimately, reducing
frivolous, fraudulent, or meritless asylum filings will enable USCIS to
dedicate an increased share of its finite resources to adjudicating
meritorious asylum applications, including backlog cases, and other
pending benefit requests. USCIS anticipates that the impact of this
proposed rule will align the adjudication of the applications for
(c)(8) EADs more closely with the statute by facilitating timely
adjudication of asylum applications and eventually limiting work
authorization during the pendency of an application for asylum to a
reduced number of cases where a decision on an asylum application
cannot be made within 365 days.
[[Page 8618]]
B. Summary of the Major Provisions of the Regulatory Action
DHS proposes to codify in regulation the following major changes:
1. Amend 8 CFR 208.3(c)(3), Form of Application
DHS proposes to align its criteria for determining when an asylum
application is received and complete more closely with the general
rules governing immigration benefit requests in 8 CFR 103.2. The
existing regulations at 8 CFR 103.2(a)(7) state that USCIS will record
the receipt date as of the actual date the immigration benefit request
is received at the designated filing location, whether electronically
or on paper, provided that it is signed with a valid signature,
executed, and filed in compliance with the regulations governing that
specific benefit request and with the correct fee. DHS proposes to
apply these existing regulations to asylum applications filed after the
effective date of this rule. Immigration benefit requests not meeting
these requirements are rejected and returned and do not retain a filing
date. DHS also proposes to remove the language in 8 CFR 208.3(c)(3)
providing that an application for asylum will be deemed ``complete'' if
USCIS fails to return the incomplete application to the alien within a
30-day period.
2. Amend 8 CFR 208.7(a), Employment Authorization
a. Biometrics
DHS proposes to require all applicants for a (c)(8) EAD, including
renewal requests, to submit biometrics. If an alien fails to appear for
biometrics submission, the alien's application for employment
authorization would be denied under 8 CFR 103.2(b)(13)(ii), similar to
how USCIS currently handles other benefit requests.
b. Extension of 180-Day Asylum EAD Clock to 365 Calendar Day Waiting
Period
Under the proposed rule, asylum applicants would be eligible to
apply for employment authorization 365 calendar days from the date
their asylum application is received. The 365 calendar-day waiting
period will begin on the date of the receipt of a complete asylum
application, as recorded pursuant to 8 CFR 103.2(a)(7).
c. Recommended Approvals
DHS proposes to remove the language referring to ``recommended
approvals.'' USCIS' Asylum Division no longer issues recommended
approvals as a preliminary decision for affirmative asylum
adjudications.
d. Processing Timeframes
DHS proposes to amend the regulatory requirement that USCIS
complete adjudication of initial (c)(8) EAD applications within 30
days. For initial (c)(8) EAD applications received on or after the
effective date of the final rule, DHS proposes to extend the processing
timeframe to 180 days for USCIS to adjudicate the EAD application. DHS
does not propose any changes to initial (c)(8) EAD applications
submitted prior to the effective date of this rule.
e. Ineligibility Grounds
DHS proposes to exclude from (c)(8) EAD eligibility any alien where
there is reason to believe that the alien may be barred from a grant of
asylum due to one of the criminal bars to asylum under sections
208(b)(2)(A)(ii)-(iii).
f. Effect of a Denial of Asylum Application
DHS proposes to exclude from initial (c)(8) EAD eligibility any
alien whose asylum application is denied by an asylum officer or an
Immigration Judge (IJ) within the 365 calendar-day waiting period, or
before the adjudication of the initial (c)(8) EAD application.
g. One-Year Filing Deadline
DHS proposes to exclude from (c)(8) EAD eligibility any alien whose
asylum application is filed on or after the effective date of the final
rule and more than 1 year after the alien's arrival in the United
States, unless an asylum officer or IJ determines that an exception to
the 1-year filing deadline exists, or unless the alien is under USCIS'
initial jurisdiction as an unaccompanied alien child (UAC).
h. Illegal Entry
DHS proposes to exclude from (c)(8) EAD eligibility any alien who
entered or attempted to enter the United States without inspection on
or after the effective date of the final rule, unless the alien,
without delay but no later than 48 hours after entry, expressed to an
immigration officer an intention to apply for asylum or expressed to an
immigration officer a fear of persecution or torture; or unless the
alien establishes good cause for the illegal entry or attempted entry;
or unless the alien meets the definition of, or at any time since their
most recent entry was determined to be, a UAC as defined in 6 U.S.C.
279(g)(2).
i. Use of Derogatory Information
To assist with improving adjudicative efficiency, DHS proposes to
prioritize asylum applications for adjudication if USCIS finds
derogatory information during the process of the adjudication of (c)(8)
EAD applications.
j. Pause and Re-Start of Acceptance of Initial (c)(8) EAD Applications
DHS proposes to pause the acceptance of initial (c)(8) EAD
applications when the average processing time for affirmative asylum
applications over a consecutive period of 90 day adjudications exceeds
180 days. After such a pause is implemented, acceptance of initial
(c)(8) EAD applications would resume when the average processing time
for affirmative asylum application adjudications over a consecutive
period of 90 days is less than or equal to 180 days. The USCIS
Director's determination to pause and restart (c)(8) EAD acceptances
will be based solely on the affirmative asylum application processing
times, and not subject to discretion. In evaluating the affirmative
asylum application processing times for USCIS asylum cases, the USCIS
Director will consider all pending asylum applications before USCIS
over the preceding 90-day period. The rule would require the USCIS
Director to review affirmative asylum application processing times on
the effective date of the final rule. DHS proposes to notify the public
of any such processing changes and provide the supporting quarterly
processing times through USCIS website announcements.
As described in section V.A of this preamble, USCIS' current
affirmative asylum processing times are significantly greater than 180
days.\2\ Processing times were trending downward, but recently
increased again. USCIS expects this rule to support another downward
trend in the long term, but USCIS also expects that, upon
implementation of this rule, new EAD applications for pending asylum
applicants would be paused for an extended period, possibly many years.
For example, without factoring in any of the other proposed changes in
this rule and how they may impact adjudication times, it may take
between 14 and 173 years to reach a 180-day processing time, depending
on the extent of the reduction in asylum application receipts
[[Page 8619]]
following this rule. It bears repeating that neither of those
projections take into account any of the other proposed changes in this
rule which, if finalized, would also shorten those processing times.
USCIS also recognizes that while the asylum adjudication processing
time calculation will be based solely on affirmative asylum
applications, the pause on acceptances of (c)(8) employment
authorization applications will impact both affirmative and defensive
asylum applications. While this is a significant change in access to
employment authorization based on a pending asylum application, DHS
believes it is necessary to achieve its goals of enhancing benefit
integrity, protecting national security, and reducing resource strains.
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\2\ USCIS OPQ DATA, ``I-589 Processing Time With and Without
Admin Closed by Fiscal Year (FY2022-2025) (May 27, 2025). DHS notes
these processing times are under LIFO processing, so these are still
the ``newer'' cases being adjudicated. Further, these adjudications
are not reducing the overall size of the asylum backlog.
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3. Amend 8 CFR 208.7(b), Renewal
DHS proposes to clarify and consolidate the requirements for
requesting a (c)(8) EAD renewal and specify that aliens applying for
renewal (c)(8) EADs must also submit biometrics.
4. Amend 8 CFR 208.7(c), Termination
Under the proposed rule, termination of a (c)(8) EAD would occur:
(1) immediately following the denial of an asylum application by an
asylum officer, unless the case is referred to an Immigration Judge;
(2) on the date that is 30 days after the date on which an Immigration
Judge denies an asylum application, unless the alien makes a timely
appeal to the Board of Immigration Appeals; or (3) immediately
following the denial or dismissal by the Board of Immigration Appeals
of an appeal of a denial of an asylum application.
5. Amend 8 CFR 274a.12(c)(8)
DHS proposes to remove the reference to recommended approvals
because USCIS no longer issues recommended approvals as a preliminary
decision for affirmative asylum adjudications.
6. Amend 8 CFR 274a.13, Application for Employment Authorization
Under the proposed rule, approval of (c)(8) EAD applications would
be at USCIS' discretion, in keeping with its discretionary authority
under section 208(d)(2) of the INA, 8 U.S.C. 1158(d)(2). DHS also
proposes to replace the detailed information about filing and
adjudicating applications for (c)(8) EADs with a reference to 8 CFR
208.7.
7. Technical and Conforming Updates to the Proposed Amendments
DHS proposes technical and conforming amendments to the affected
regulations to align with the major changes described previously,
including structural updates to 8 CFR 208.7(a) in order to incorporate
the new provisions. The proposed rule would also revise outdated
language, such as replacing references to ``the commissioner'' with
``USCIS.''
C. Impact of Effective Date of the Final Rule
Under this proposed rule, DHS will allow aliens with pending asylum
applications that have not yet been adjudicated and who already have
employment authorization before the final rule's effective date to
remain employment authorized until the expiration date on their current
EAD, unless the card is terminated or revoked on the grounds specified
in regulations in effect when their EAD was issued.
In this proposed regulation, there are certain provisions that
apply only to initial (c)(8) EAD applications filed on or after the
effective date of the final rule. Provisions that apply only to initial
(c)(8) EAD applications are noted in the proposed regulatory text. The
remaining proposed provisions apply to both initial and renewal (c)(8)
EAD applications filed on or after the effective date of the final
rule. In general, and unless otherwise specified, aliens who file
renewal (c)(8) EAD applications on or after the effective date of the
final rule would be subject to the applicable provisions in this
proposed rule regardless of the date on which their initial application
for a (c)(8) EAD was filed. By applying many of these provisions to
renewals, DHS aims to further insulate the employment authorization and
asylum processes from fraud and abuse. Aliens requesting employment
authorization renewals who may have abandoned their asylum applications
or not appeared for their asylum interviews or biometrics appointments
will no longer be able to receive employment authorization renewals due
to additional scrutiny under the proposed rule. The application of
certain provisions to renewals will also allow DHS to vet aliens and
reduce the number of employment authorization renewals granted to
aliens who were convicted of crimes after receiving their initial EAD,
thereby enhancing public safety and strengthening national security.
Finally, applying these changes to renewals as well as initials results
in efficiencies for USCIS adjudicators, who would only have to apply
one set of eligibility requirements for (c)(8) EADs and not one set of
eligibility requirements for initial (c)(8)s and a different set of
requirements for renewal (c)(8)s.
The provisions that apply only to initial (c)(8) EAD applications
include the proposed changes to the processing timeframe, the waiting
period to apply for and receive a (c)(8) EAD, and the pause and re-
start of (c)(8) EAD application acceptance. With regard to the pause
and re-start, USCIS anticipates that the rule would result in an
initial and potentially lengthy pause. USCIS anticipates that this
pause would be instituted after USCIS reviewed average asylum
application times for the first 90-day period after the rule took
effect. USCIS acknowledges that, while the asylum adjudication
processing time calculation will be based solely on affirmative asylum
applications, the pause on acceptances of (c)(8) employment
authorization applications will impact both affirmative and defensive
asylum applicants. This rule will not have any impact on the ability to
apply to replace lost, stolen, or damaged (c)(8) EADs.
1. Processing Timeframe
DHS proposes to amend 8 CFR 208.7(a)(1) to extend the processing
requirement from 30 days to 180 days for all initial (c)(8) EAD
applications filed on or after the effective date of the final rule.
Any initial (c)(8) EAD applications that are pending as of the
effective date of the final rule would continue to be subject to the
current 30-day processing requirement. A fuller discussion of this
change and litigation relating to processing timeframes in Rosario v.
USCIS appears in section V.D of this preamble. There are currently no
processing timeframe requirements for renewal (c)(8) EAD applications,
and there would be no changes to timeframe requirements for renewal
(c)(8) EAD applications within this proposed rule.
2. Waiting Period To Apply for and Receive an Initial (c)(8) EAD
DHS proposes to amend the waiting period to apply for and receive
an initial (c)(8) EAD to 365 calendar days. This regulation would apply
to all initial applications for (c)(8) EADs filed on or after the
effective date of the final rule. Any initial (c)(8) EAD applications
that are pending as of the effective date of the final rule would still
be subject to the current 180-day Asylum EAD Clock. There are currently
no regulatory waiting period requirements for renewal (c)(8) EAD
applications,\3\ and there
[[Page 8620]]
would be no changes related to waiting periods for renewal (c)(8) EAD
applications within this proposed regulatory action.\4\
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\3\ USCIS advises aliens that they should file their renewal
Form I-765 within 6 months of the expiration date of the current
EAD. USCIS, ``I-765, Application for Employment Authorization,''
<a href="https://www.uscis.gov/i-765">https://www.uscis.gov/i-765</a> (last updated Apr. 29, 2025).
\4\ A settlement in Garcia Perez v. DHS, 2:22-cv-806 (W.D. Wash.
2022) was approved in September 2024 after class members challenged
EOIR and USCIS policies and procedures regarding the 180-day Asylum
EAD Clock. Among other provisions, the Garcia Perez settlement
provides asylum applicants with an ability to obtain information
about their Asylum EAD Clock and challenge the reason for any stops
to the clock. The current mechanism to do this will be simplified by
conversion to a 365-calendar day calculation. To the extent that
there is conflict between the settlement agreement and the 365-
calendar day calculation, this rule change would supersede the
Garcia Perez settlement agreement, which contains a clause
acknowledging the settlement agreement does not preclude future
regulatory or statutory changes. See Garcia Perez Settlement
Agreement, Section II.C.7--Impact of Statutory, Regulatory, or
Precedential Changes, and/or Operational Needs.
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3. Pause and Re-Start of (c)(8) EAD Application Acceptance
DHS proposes to pause and re-start the acceptance of initial (c)(8)
EAD applications based on the average processing time of asylum
application adjudications over a 90-day period. For purposes of this
NPRM, an affirmative asylum application is considered processed when a
grant, referral, or denial is issued or the application is
administratively closed. Cases described as administrative closures are
those that do not receive a final decision on the merits but are closed
for reasons such as lack of jurisdiction or abandonment of the asylum
application, USCIS uses different terms to address the lifespan of a
case, including both ``process time'' and ``cycle time''. Generally,
``processing time'' is the time from receipt to completion for each
individual form and can be averaged over a specific period of time in
the past, but does not take into account currently pending applications
and is not used for projections. ``Cycle time'' is defined as how many
months' worth of receipts represents the current pending case volume.
This is an internal metric that can be used for projections because it
takes into account current pending volume, anticipated receipts, and
expected completions. As an internal management metric, cycle times are
generally comparable to the agency's publicly posted median processing
times. Cycle times are what the operational divisions of USCIS use to
gauge how much progress the agency is, or is not, making on reducing
our pending affirmative asylum caseload and overall case processing
times. DHS would pause the acceptance of initial (c)(8) EAD
applications when the average processing time for all affirmative
asylum applications over a consecutive period of 90 days adjudication
exceeds 180 days. Acceptance of initial (c)(8) EAD applications would
resume when the average processing time for affirmative asylum
adjudication over a consecutive period of 90 days is less than or equal
to 180 days. The proposed provisions to pause and re-start EAD
application acceptance only impact initial (c)(8) EAD applications.
Thus, even in a period in which USCIS has paused the acceptance of
initial (c)(8) EAD applications due to asylum application processing
times, USCIS will continue to receive and adjudicate renewal (c)(8) EAD
applications, as well as EAD applications in other eligibility
categories.
The rule would require the USCIS Director to review affirmative
asylum application processing times for the purpose of determining
whether USCIS' (c)(8) EAD application acceptances would be paused or
restarted. This requirement would begin on the effective date of the
final rule and the Director would conduct the first required review of
asylum application processing times after the first 90-day period
thereafter. Based on recent processing times, USCIS anticipates that
the Director will institute an initial pause on asylum EAD
adjudications following that review. The USCIS Director's determination
is not discretionary, and the determination to pause or restart
acceptance of initial (c)(8) EAD applications is directly tethered to
the processing times of all affirmative asylum applications over the
previous 90-day period. DHS proposes to notify the public of any such
processing changes and provide the supporting processing times through
USCIS website announcements.
D. Summary of Benefits and Costs
DHS expects that this proposed rule will generate substantial
benefits. As discussed later in this preamble, the asylum system is
overwhelmed, federal adjudications resources are strained, and the
affirmative asylum application backlog serves as a magnet pulling
aliens into the U.S. illegally. The surge in both asylum filings and
associated EADs over the past few years has created an untenable
situation. This proposed rule would benefit USCIS by allowing it to
operate under long-term, sustainable case processing times for initial
EAD applications for asylum applicants, to allow sufficient time to
address national security, public safety, or fraud concerns, and to
maintain technological advances in document production and identity
verification. Just as the 1994 INS rulemaking referenced below, DHS
expects that this action would reduce frivolous and fraudulent asylum
claims and perverse economic incentives to obtain an EAD under
meritless asylum claims. 59 FR 14779 (Mar. 30, 1994); 59 FR 62284 (Dec.
5, 1994). Frivolous, fraudulent, and meritless asylum applications and
related filings for employment authorization can serve as a magnet for
illegal immigration and generate costs to localities, states, the
national economy, and strain resources. These costs could include
public assistance and additional local or state resources used to
assist aliens, and this rule would potentially mitigate some of these
costs. DHS expects that these changes would reduce confusion regarding
EAD requirements for aliens with pending asylum applications and the
public, help ensure the regulatory text reflects current DHS policy and
more faithfully implements the intent of the statute while
simultaneously improving program integrity. DHS cannot currently
quantify all of the potential benefits of this proposed rule.
In addition, if employers are able to hire American workers to fill
the jobs the asylum applicants would otherwise hold, the change in
earnings to such aliens would constitute beneficial wage and benefit
transfers to American workers and would potentially pose no
productivity loss or costs to employers. While it is possible that
aliens without work authorization could require assistance from their
social and support networks, which could include public entities, there
could be a counterbalance; as this rule potentially will reduce
immigration, there could be less of an economic strain on states, local
government, and non-governmental organizations, in terms of any public
assistance and resources that are currently provided to asylum
applicants. Furthermore, DHS anticipates this proposed rule would
decrease illegal migration and fraudulent claims for asylum
applications and EADs.
Many of the impacts described above will be indirect,
unquantifiable benefits resulting from this proposed rule. DHS cannot
estimate these potential indirect impacts (whether costs, benefits,
transfers) or second order effects and beyond, as they are beyond the
scope of this analysis. This rulemaking seeks to reduce frivolous,
fraudulent, and meritless asylum applications and their associated
applications for (c)(8) EADs while improving the administrative process
for issuance of employment authorization documents for aliens with
meritorious asylum applications at USCIS.
[[Page 8621]]
Requiring aliens to submit biometrics collections for both initial
and renewal requests for employment authorization would enable DHS to
vet an alien's biometrics against government databases to determine if
he or she matched any criminal activity on file, to verify the alien's
identity, and to facilitate card production. In addition, biometrics
collection enables DHS to confirm that individuals are not utilizing
multiple identities or that multiple individuals are not utilizing one
identity. Lastly, from biometrics collections DHS would increase
program integrity by ensuring that only eligible aliens who continued
to pursue asylum were applying for and obtaining work authorization,
because those who have abandoned their asylum applications or who do
not have a genuine need for asylum may be less likely to appear for
biometrics collection. This would also generally provide a benefit for
the public because it would increase transparency pertinent to
application and filing requirements. As discussed in the preamble, the
asylum program has been subject to identity fraud concerns
historically.
The impacts of this proposed rule include both potential
distributional effects (which are transfers) and costs. The potential
distributional impacts fall on the asylum applicants who may be delayed
in entering the U.S. labor force or who may not obtain an EAD due to
being ineligible (e.g., aggravated felon, serious non-political crime,
etc.) or due to a processing pause. The potential distributional
impacts (transfers) would be in the form of lost opportunity to earn
compensation (wages and benefits). A portion of this lost compensation
might be transferred from asylum applicants to others that are
currently employed in the U.S. labor force, possibly in the form of
additional hours worked or overtime pay. A portion of the impact of
this rule may also be borne by companies that would have hired the
asylum applicants had they been eligible for an EAD or in the labor
market earlier. However, if the affected employer were unable to find
available workers, these companies could incur a cost to productivity
and potential profit.
Companies may also incur opportunity costs by having to choose the
next best alternative to immediately filling the job the asylum
applicant would have filled. USCIS does not know what this next best
alternative may be for those companies. As a result, USCIS does not
know the portion of overall impacts of this rule that are transfers or
costs. If companies can find replacement labor for the position the
asylum applicant would have filled, this rule would have primarily
distributional effects in the form of transfers from asylum applicants
to others already in the labor market (or workers induced to return to
the labor market). USCIS acknowledges that there may be additional
opportunity costs to employers such as additional search costs.
However, if companies cannot find a reasonable substitute for the labor
an asylum applicant would have provided, the effect of this rule would
primarily be a cost to these companies through lost productivity and
profits.
USCIS uses the changes to earnings to asylum applicants as a
measure of the overall impact of the rule--either as distributional
impacts (transfers) or as a proxy for businesses' cost for lost
productivity. It does not include additional costs to businesses for
lost profits and opportunity costs or the distributional impacts for
those in an applicant's support network. The lost compensation to these
asylum applicants could range from $34.6 billion to $126.6 billion
annually (undiscounted) depending on the wages the asylum applicant
would have earned and other factors. The 5-year total discounted lost
compensation to asylum applicants at 3 percent could range from $155.4
billion to $568.6 billion and at 7 percent could range from $135.5
billion to $495.8 billion (FY 2025 through FY 2029).
The quantified estimates may be overstated, as they assume that
without this rule (i.e. under the baseline) the EAD validity period
would be longer than is currently permitted.\5\ Since USCIS has reduced
the maximum EAD validity period for aliens with pending asylum
applications to 18 months, recipients must renew more often, which
could result in fewer pending asylum applicants authorized to work over
the 5-year period of analysis. This reduction would result from
attrition in renewal applications and more frequent vetting.
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\5\ Effective December 5, 2025, USCIS reduced the maximum EAD
validity period for aliens with pending asylum applications to 18
months. See USCIS, Policy Alert, ``Updating Certain Employment
Authorization Document Validity Periods'' (Dec. 4, 2025), <a href="https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20251204-EmploymentAuthorizationValidity.pdf">https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20251204-EmploymentAuthorizationValidity.pdf</a>.
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There could be tax impacts pertinent to earnings changes. Asylum
applicants who could be delayed or precluded from obtaining an EAD may
generate forgone federal and state taxes. However, as was noted above,
the strain on resources that could be mitigated due to the effects of
this rule could counterbalance some or all of the tax losses, if there
are any. Additionally, if the earnings are transferred to American
workers, there may be no loss of taxes.
This rule could possibly result in reduced opportunity costs to the
Federal Government. Since the Rosario court order, 365 F. Supp. 3d 1156
(W.D. Wash. 2018), compelled USCIS to comply with the 30-day processing
timeframe provision in FY 2018, USCIS has redistributed its
adjudication resources to work up to compliance. By extending the 30-
day processing timeframe to 180 days, it is possible that resources
could be reallocated, which could have the effect of reducing delays in
processing status-granting benefit requests, and avoiding costs
associated with hiring additional employees. However, there are many
factors that could influence such processing. Additionally, if asylum
filings decline, as this rule generates a disincentive to meritless
claims with the goal of obtaining an EAD, then the public and the
Federal Government could experience operational and cost efficiencies
as it is based on adjudicating fewer asylum claims. DHS does not rule
out that there could be resources allocated to other operational areas.
Table 1 provides a detailed summary of the regulatory changes and
the expected impacts of proposed rule's provisions. USCIS estimates the
primary impact of the rule would result from a pause in accepting all
new initial (c)(8) EAD applications until USCIS' affirmative asylum
applications processing time reach a 180-day average (Module 1).
Additionally, USCIS provides impacts for provisions that would affect
applicants (for initial and renewal EADs) when the pause is lifted
(Module 2). However, USCIS does not include Module 2 in the total rule
impact, because the Module 1 impacts (pause EADs) already accounted for
impacts to all new EAD applicants. To include Module 2 would be double
counting the impacts for the same population. Where a monetized figure
is presented, it is based on a 7 percent annualized average, and the
annual population is the midpoint of a high-low range.
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In addition to the information presented in Table 1, details and an
A-4 accounting statement are provided in Section VI (Statutory and
Regulatory Requirements) of the proposed rule.
---------------------------------------------------------------------------
\6\ See Office of the Inspector General, OIG-16-130
``Potentially Ineligible Individuals Have Been Granted U.S.
Citizenship Because of Incomplete Fingerprint Records'' (Sept. 8,
2016), <a href="https://www.oig.dhs.gov/reports/2016-09/potentially-ineligible-individuals-have-been-granted-uscitizenship-because">https://www.oig.dhs.gov/reports/2016-09/potentially-ineligible-individuals-have-been-granted-uscitizenship-because</a>,
finding ``During immigration enforcement encounters with aliens, CBP
and ICE take fingerprint records. These components and their
predecessor, INS, used to collect aliens' fingerprint on two paper
cards. One card was supposed to be sent to the FBI to be stored in
its repository. The other fingerprint card was to be placed in the
alien's file with all other immigration related documents.''
Ultimately finding that ``As long as the older fingerprint records
have not been digitized and included in repositories, USCIS risks
making naturalization decision without complete information and, as
a result, naturalizing additional individuals who may be ineligible
for citizenship or who may be trying to obtain U.S. citizenship
fraudulently.'' See also Office of the Inspector General, DHS,
``Individuals with Multiple Identities in Historical Fingerprint
Enrollment Records Who Have Received Immigration Benefits'' DHS-OIG
17-111 (Sept. 25, 2017), <a href="https://www.oig/dhs.gov/sites/default/files/assets/2017/OIG-17-111-Sep17.pdf">https://www.oig/dhs.gov/sites/default/files/assets/2017/OIG-17-111-Sep17.pdf</a>, ``Individuals with Multiple
Identities in Historical Fingerprint Enrollment Records Who Have
Received Immigration Benefits'' finding ``from this data set, we
determined that, as of April 24, 2017, 9,389 alients USCIS
identified as having multiple identities had received an immigration
benefit'' and that ``10 percent of cases, but not discussed in this
report, include applications for asylum and travel documents.''
\7\ DHS caveats that the quantified estimates are currently
overstated due to the change in the maximum EAD validity period for
aliens with pending asylum applications to 18 months. USCIS will
consider the recent change and incorporate updates where appropriate
in the final rule to reflect this change.
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E. Legal Authority
The Secretary's authority for the proposed regulatory amendments is
found in various sections of the INA, 8 U.S.C. 1101 et seq., and the
Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135
(codified in part at 6 U.S.C. 101 et seq.). General authority for
issuing this proposed rule is found in section 103(a) of the INA, 8
U.S.C. 1103(a), which authorizes the Secretary to administer and
enforce the immigration and nationality laws and establish such
regulations as the Secretary deems necessary for carrying out such
authority, as well as section 102 of the HSA, 6 U.S.C. 112, which vests
all of the functions of DHS in the Secretary and authorizes the
Secretary to issue regulations.\8\
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\8\ Although several provisions of the INA discussed in this
proposed rule refer exclusively to the ``Attorney General,'' such
provisions now refer to the Secretary by operation of the HSA. See 6
U.S.C. 202(3), 251, 271(b), 542 note, and 557; 8 U.S.C. 1103(a)(1)
and (g) and 1551 note; Nielsen v. Preap, 586 U.S. 392, 397 n.2
(2019).
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Additional authority for this rule is found in:
<bullet> Section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B),
which recognizes the Secretary's discretionary authority to extend
employment authorization to aliens in the United States; \9\
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\9\ Courts have acknowledged that Congress delegated authority
to DHS to grant or extend employment authorization to certain
classes of aliens. See, e.g., Washington Alliance of Technology
Workers v. DHS, 50 F.4th 164, 191-92 (D.C. Cir. 2022) (``What
matters is that section 1324a(h)(3) expressly acknowledges that
employment authorization need not be specifically conferred by
statute; it can also be granted by regulation.''). DHS is exercising
this discretionary authority consistent with all applicable
authorities, including the referenced authorities in the HSA, and
sections 103, 208, and 274A(h)(3) of the INA, 8 U.S.C. 1103, 1158,
and 1324a(h)(3), as well as the Administrative Procedure Act (APA)
at 5 U.S.C. 553. See Loper Bright Enterprises v. Raimondo, 144 S.
Ct. 2244, 2263 (2024) (``In a case involving an agency, of course,
the statute's meaning may well be that the agency is authorized to
exercise a degree of discretion. Congress has often enacted such
statutes. For example, some statutes expressly delegate to an agency
the authority to give meaning to a particular statutory term. Others
empower an agency to prescribe rules to fill up the details of a
statutory scheme, or to regulate subject to the limits imposed by a
term or phrase that leaves agencies with flexibility, such as
`appropriate' or `reasonable.' '') (internal citations omitted).
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<bullet> Sections 208(d)(1) and (d)(5)(B) of the INA, 8 U.S.C.
1158(d)(1) and (d)(5)(B), which authorize the Secretary to establish
regulations concerning the procedures and conditions on asylum
applications;
<bullet> Section 208(d)(2) of the INA, 8 U.S.C. 1158(d)(2), which
provides the Secretary discretion to grant employment authorization to
applicants for asylum if 180 days have passed since filing an
application for asylum;
<bullet> Section 101(b)(1)(F) of the HSA, 6 U.S.C. 111(b)(1)(F),
which establishes as a primary mission of DHS the duty to ``ensure that
the overall economic security of the United States is not diminished by
efforts, activities, and programs aimed at securing the homeland;'' and
<bullet> Section 271(a)(3) of the HSA, 6 U.S.C. 271(a)(3), which
confers authority on the Director of USCIS to establish ``policies for
performing [immigration adjudication] functions.''
[[Page 8628]]
F. Severability
The Department intends for the provisions of this proposed rule, if
finalized, to be severable from each other and to be given effect to
the maximum extent possible, such that if a court were to hold that any
provision is invalid or unenforceable as to a particular alien or
circumstance, the other provisions will remain in effect as to any
other alien or circumstance. For example, if a court of competent
jurisdiction were to hold that the proposed amendments to the
regulations under 8 CFR 208.7(a)(2) alone should be enjoined or should
be vacated for some reason, it is the intent of DHS that such court
would narrowly construe its decision and leave the remainder of the
rule in place with respect to all other covered aliens and
circumstances. While the various provisions of this proposed rule,
taken together, would provide maximum benefit with respect to improving
the integrity of both the asylum program and employment authorization
benefits process, strengthening the Department's national security and
public safety posture, and decreasing the strain on operational
resources, none of the provisions are fully interdependent and unable
to operate separately.
DHS recognizes that the proposed provisions at 8 CFR
208.7(a)(1)(i), 8 CFR 208.7(a)(1)(iv), and 8 CFR 208.7(a)(1)(v) are
related to each other, but they may still exist independently. The
proposed amendments at 8 CFR 208.7(a)(1)(iv) would expand the list of
criminal ineligibilities for employment authorization, including the
incorporation of criminal bars to asylum, specifically where there is
reason to believe that the applicant may be barred from a grant of
asylum due to one of the criminal bars to asylum under sections
208(b)(2)(A)(ii)-(iii) and the proposed amendments at 8 CFR
208.7(a)(1)(v) would allow DHS to prioritize for adjudication asylum
applications for which derogatory information is discovered during the
EAD adjudications. These proposed provisions would be strengthened by
the proposed provision at 8 CFR 208.7(a)(1)(i), which requires
biometrics for all aliens applying for EADs based on pending asylum
applications. This new categorical biometrics provision would allow DHS
to conduct more in-depth screening and vetting, thus providing a more
complete, comprehensive, and accurate view of the alien's criminal
history. However, even if USCIS could not implement the categorical
biometrics provision, the Department could still apply the criminal
ineligibility grounds and derogatory information provisions to the EAD
adjudication by reviewing other available evidence in the record or
available in government systems.
III. Background and Purpose
A. Introduction
On January 20, 2025, President Donald J. Trump issued a
Presidential Proclamation declaring that a national emergency exists at
the southern border of the United States \10\ and a Presidential
Proclamation stating that the circumstances of the emergency qualify as
an invasion under Article IV, Section 4, of the Constitution of the
United States.\11\ Stating that the number of aliens encountered along
the southern border of the United States over the course of the prior
administration had overwhelmed the U.S. immigration system and rendered
many of the INA's provisions to control the entry and exit of people
and goods across the borders of the United States ineffective, the
President invoked emergency tools to suspend the physical entry of
aliens involved in an invasion into the United States across the
southern border and provide additional authorities and resources to
support the Federal Government's response.\12\
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\10\ Proclamation 10886 of Jan. 20, 2025, ``Declaring a National
Emergency at the Border'', 90 FR 8327, 8328 (Jan. 29, 2025).
\11\ Proclamation 10888 of Jan. 20, 2025, ``Guaranteeing the
States Protection Against Invasion,'' 90 FR 8333, 8335 (Jan. 29,
2025).
\12\ Id.
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On the same day, the President issued Executive Order (E.O.) 14159,
Protecting the American People Against Invasion, to ensure ``that the
Federal Government protects the American people by faithfully executing
the immigration laws of the United States.'' \13\ The E.O. also
directed the Secretary to ensure ``that employment authorization is
provided in a manner consistent with section 274A of the INA (8 U.S.C.
1324a), and that employment authorization is not provided to any
unauthorized alien in the United States.'' \14\
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\13\ E.O. 14159 of Jan. 20, 2025, ``Protecting the American
People Against Invasion,'' sec. 1, 90 FR 8443 (Jan. 29, 2025).
\14\ Id. at sec. 16(c), 90 FR 8446.
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Through this proposed rule, DHS is addressing, in part, the
President's national emergency and invasion at the southern border
declarations by: (1) reducing incentives for aliens to file frivolous,
fraudulent, or otherwise meritless asylum applications intended
primarily to obtain employment authorization and to remain in the
United States for years due to the current backlog of asylum cases; (2)
disincentivizing illegal entry into the United States by providing
that, on or after the effective date of the final rule, any alien who
enters or attempts to enter the United States at a place and time other
than lawfully through a U.S. port of entry will be ineligible to
receive a (c)(8) EAD, with limited exceptions; (3) reducing
opportunities for fraud; and (4) protecting USCIS' ability to have
sufficient time and resources to receive, meaningfully screen and vet,
and process initial (c)(8) EAD applications, while also protecting the
security-related processes undertaken for each employment authorization
application. This rule also aims to address the increased public safety
and national security concerns exacerbated by large numbers of aliens
illegally crossing the border and overwhelming the U.S. immigration
system. DHS is also proposing reforms that will ease many of the
burdens USCIS faces in accepting and adjudicating applications for
asylum and related employment authorization.
As explained more fully later in this preamble, these reforms will
help mitigate the crisis that our immigration and asylum systems are
facing as a consequence of the mass migration of aliens across the
southern border, and improve the current asylum backlog by discouraging
new frivolous, fraudulent, or otherwise meritless asylum applications
and freeing DHS resources to focus on applications in the current
backlog, helping to clear the way for meritorious asylum applications
to be received, processed, and adjudicated more quickly.
The existing asylum backlog has engendered a flood of litigation by
aliens with pending asylum applications alleging unreasonable delay of
their applications that has significantly drained the resources of
USCIS and the U.S. Department of Justice (DOJ) to resolve. In fact,
petitions for writs of mandamus \15\ related to affirmative asylum
cases have been on the rise in recent years, from 1,545 in FY 2022 to
4,093 in FY 2023 to 5,187 cases in FY 2024.\16\ Affirmative asylum
cases with mandamus actions further stymie progress on affirmative
asylum backlog reduction because USCIS must prioritize responses to and
adjudication of certain mandamus affirmative asylum
[[Page 8629]]
cases. This creates a cyclical issue because mandamus actions force
USCIS to reallocate resources to meet the court deadlines by pulling
officers off either recent or backlog adjudications, which leads to
increased processing times for other pending asylum applications.\17\
Adopting the provisions described in this proposed rule would give
aliens with meritorious asylum claims the predictability they deserve
but are currently denied because of the backlog of asylum claims
clogging the system. The extensive resources required to process
pending asylum applications generally extends the time to process
meritorious asylum claims.
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\15\ A Writ of Mandamus is a district court filing used to
compel an agency to perform a duty owed to the plaintiff. USCIS may
expedite cases for aliens with long-standing asylum claims who use
this style of litigation to seek action.
\16\ USCIS internal data, Office of the Chief Counsel, Form I-
589 Mandamus Statistics, May 22, 2025.
\17\ Office of Inspector General, DHS, ``USCIS Faces Challenges
Meeting Statutory Timelines and Reducing Its Backlog of Affirmative
Asylum Claims'' (July 3, 2024), <a href="https://www.oig.dhs.gov/sites/default/files/assets/2024-07/OIG-24-36-Jul24.pdf">https://www.oig.dhs.gov/sites/default/files/assets/2024-07/OIG-24-36-Jul24.pdf</a>. See also
Citizenship and Immigration Services Ombudsman, DHS, ``Annual Report
2022'' (June 30, 2022), <a href="https://www.dhs.gov/sites/default/files/2022-07/2022%20CIS%20Ombudsman%20Report_verified_medium_0.pdf">https://www.dhs.gov/sites/default/files/2022-07/2022%20CIS%20Ombudsman%20Report_verified_medium_0.pdf</a>.
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Additionally, illicit organizations, including designated Foreign
Terrorist Organizations (FTOs),\18\ benefit financially by smuggling
aliens into the United States, and, upon arrival in this country, many
aliens then apply for asylum or other immigration benefits. A 2023
congressional report stated that aliens routinely paid smuggling
organizations more than $10,000 to $15,000 to facilitate the journey
across the southwest border, with drug cartels playing an increasingly
influential role in human smuggling.\19\ It is estimated that cartel
revenue from human smuggling is in the billions of dollars, with
cartels operating in the Del Rio Sector alone making around $1.5
billion a year.\20\ Recently designated FTOs, including Cartel Del
Golfo (Gulf Cartel), Cartel Del Noreste, and Mara Salvatrucha (MS-13)
continue to engage in dangerous and often fatal human smuggling
operations, bringing vulnerable men, women, and children to the United
States illegally.\21\ By nature, these organizations engage in illegal
and often extremely violent activities; therefore, this strategic
exploitation of the immigration system by FTOs constitutes a massive
national security and public safety threat.
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\18\ Bureau of Counterterrorism, DOS, ``Designated Foreign
Terrorist Organizations,'' <a href="https://www.state.gov/foreign-terrorist-organizations/">https://www.state.gov/foreign-terrorist-organizations/</a> (last visited May 23, 2025); E.O. 14157 of Jan. 20,
2025, ``Designating Cartels and Other Organizations as Foreign
Terrorist Organizations and Specially Designated Global
Terrorists,'' 90 FR 8439 (Jan. 29, 2025).
\19\ U.S. Congress, House of Representatives, Committee on
Homeland Security Majority Report, Phase 2 Interim Report, 118th
Cong., 1st sess., Sept. 7, 2023, <a href="https://homeland.house.gov/wp-content/uploads/2023/09/09.07-Phase-2-Final.pdf">https://homeland.house.gov/wp-content/uploads/2023/09/09.07-Phase-2-Final.pdf</a>.
\20\ U.S. Congress, House of Representatives, Committee on
Homeland Security Majority Report, Phase 2 Interim Report, 118th
Cong., 1st sess., Sept. 7, 2023, <a href="https://homeland.house.gov/wp-content/uploads/2023/09/09.07-Phase-2-Final.pdf">https://homeland.house.gov/wp-content/uploads/2023/09/09.07-Phase-2-Final.pdf</a>.
\21\ ICE, ``Cartel Del Noreste Members Sent to Prison for Roles
in Cartel-Linked Human Smuggling Scheme'' (Nov. 4, 2024), <a href="https://www.ice.gov/news/releases/cartel-del-noreste-members-sent-prison-roles-cartel-linked-human-smuggling-scheme">https://www.ice.gov/news/releases/cartel-del-noreste-members-sent-prison-roles-cartel-linked-human-smuggling-scheme</a>; DOJ, ``Fatal human
smuggling case and two alleged MS-13 members among those charged in
relation to immigration and border security'' (Apr. 4, 2025),
<a href="https://www.justice.gov/usao-sdtx/pr/fatal-human-smuggling-case-and-two-alleged-ms-13-members-among-those-charged-relation">https://www.justice.gov/usao-sdtx/pr/fatal-human-smuggling-case-and-two-alleged-ms-13-members-among-those-charged-relation</a>; DOS, ``In
Dual Actions, Treasury Sanctions Clan Del Golfo Leadership in
Colombia and Businesses'' (Sept. 25, 2024), <a href="https://pa.usembassy.gov/in-dual-actions-treasury-sanctions-clan-del-golfo-leadership-in-colombia-and-businesses-owned-by-sinaloa-cartel-fentanyl-traffickers-in-mexico/">https://pa.usembassy.gov/in-dual-actions-treasury-sanctions-clan-del-golfo-leadership-in-colombia-and-businesses-owned-by-sinaloa-cartel-fentanyl-traffickers-in-mexico/</a>; DOJ, ``Law Enforcement Cooperation
Between United States and Mexico Results in Mexican Takedown of
Cartel-Linked Alien Smugglers,'' (Feb. 20, 2025), <a href="https://www.justice.gov/opa/pr/law-enforcement-cooperation-between-united-states-and-mexico-results-mexican-takedown-cartel">https://www.justice.gov/opa/pr/law-enforcement-cooperation-between-united-states-and-mexico-results-mexican-takedown-cartel</a>.
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DHS expressly recognizes that there are many populations with
reliance interests on the current regulatory framework for (c)(8) EAD
applications, including aliens applying for asylum, employers, and
state and local communities. These interests include the aliens with
meritorious asylum claims desiring to access employment authorization
faster and with fewer requirements so that they might become
financially independent sooner, the need for employers to more readily
access a pool of employment-authorized aliens, and a state or
community's economic need for newly arrived aliens to sustain
themselves and contribute to the economy. DHS acknowledges that this
rule may negatively impact potentially meritorious asylum applicants
who may decide not to file for asylum because they cannot afford to
wait the extended period before applying for employment authorization.
These aliens, who may otherwise have strong asylum claims, may have
family responsibilities, medical, or other financial burdens, that make
it extremely difficult for them to wait 365 calendar days, or
potentially many years due to the pause and restart provisions of this
rule, to file for employment authorization while their asylum
application is pending. DHS also recognizes that extending the
processing time for employment authorization may also factor into a
potentially meritorious applicant's decision-making process before
applying for asylum. Due to this rule and the increased waiting periods
before an alien may receive employment authorization, there may be
aliens with potentially meritorious asylum claims who instead return to
a country where they may fear harm. DHS has seriously considered the
harm to this potential population, and, while these interests are
relevant and justified, DHS has determined that they are outweighed by
the needs of the Federal Government to protect U.S. national security,
public safety, and the overall integrity of the asylum program, as well
as sustain an operationally efficient immigration system.\22\ The
asylum program and the immigration system are heavily burdened and
overwhelmed, and this has led to a massive pending affirmative asylum
caseload.\23\ This pending affirmative asylum caseload weakens the
integrity of the system, allowing thousands of non-meritorious cases to
languish and obstructing the agency from identifying potential public
safety and national security concerns until years later when the cases
are finally adjudicated. The security of the United States and the
integrity of our immigration processes outweigh the potential harm to a
subset of the asylum applicant population. Additionally, there is no
justified reliance on the current regulations for the purpose of
exploiting the immigration system through filing fraudulent, frivolous,
or otherwise meritless asylum cases primarily to access employment
authorization. Removing this potential abuse as a pull factor for
illegal immigration should decrease the number of illegal border
crossers and outweighs reliance on the current regulations. Finally,
many asylum seekers may have existing support networks of family,
friends, and community members, including other asylees and refugees,
who are able to alleviate the financial burdens caused by the longer
wait to receive employment authorization. These communities provide a
significant and positive national fiscal impact and may support those
who are not yet employment authorized.\24\ Therefore, reliance
interests are limited to the employment of aliens who are already
present in the United States at the time
[[Page 8630]]
the final rule becomes effective and who may apply for asylum, or those
who are lawfully admitted or paroled into the United States and
subsequently apply for asylum, and the employers, states, and local
communities who are impacted by these populations.
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\22\ See Dep't of Homeland Sec. v. Regents of the Univ. of
California, 140 S. Ct. 1891, 1914 (2020). (``And, even if DHS
ultimately concludes that the reliance interests rank as serious,
they are but one factor to consider. DHS may determine, in the
particular context before it, that other interests and policy
concerns outweigh any reliance interests.'').
\23\ USCIS, ``Number of Service-wide Forms By Quarter, Form
Status, and Processing Time'' (Apr. 30, 2025), <a href="https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2025_q1.xlsx">https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2025_q1.xlsx</a>.
\24\ U.S. Department of Health and Human Services, ``The Fiscal
Impact of Refugees and Asylees Over 15 Years: Over $123 Billion in
Net Benefit from 2005-2019'' (Feb. 15. 2024), available at <a href="https://aspe.hhs.gov/sites/default/files/documents/ea6442054785081eb121fa5137cf837d/aspe-brief-refugee-fiscal-impact-study.pdf">https://aspe.hhs.gov/sites/default/files/documents/ea6442054785081eb121fa5137cf837d/aspe-brief-refugee-fiscal-impact-study.pdf</a>.
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Further, many of the goals of this rule actually support the
interests of those same asylum applicants, employers, and state and
local communities. For example, the changes proposed in the rule would
help deter frivolous, fraudulent, and otherwise meritless asylum
filings, which would permit DHS to more efficiently adjudicate the
applications for aliens with meritorious asylum claims. Employers who
rely on employment-authorized aliens for a labor pool are unlikely to
prefer aliens with criminal arrests and convictions, aliens who pose
national security threats, or aliens who committed fraud during the
immigration process. Similarly, while state and local communities have
an economic interest in newly arrived aliens sustaining themselves and
contributing to the economy, they also have an interest in protecting
their communities from national security threats, aggravated felons,
and other criminal and fraud risks.
It is the policy of the Executive Branch to protect the national
sovereignty of the United States by facilitating the admission of
aliens whose presence serves the national interest and preventing the
admission of those who do not, as well as to protect national security
and public safety. 90 FR 8327 (Jan. 29, 2025); 90 FR 8333 (Jan. 29,
2025). Aliens admitted into the United States may choose to file for a
variety of immigration benefits or protections, one of which is asylum.
This rulemaking is part of a series of reforms DHS is undertaking to
improve the integrity of the asylum system, including streamlining
efforts, so that those with meritorious asylum claims are adjudicated
quickly and aliens who are ineligible are promptly denied.
B. Efforts To Reform the Asylum System
The Refugee Act of 1980, Public Law 96-212, 94 Stat. 102, was the
first comprehensive legislation to establish the modern refugee and
asylum system.\25\ Signed into law in March 1980, the legislation was
intended to ``provide a permanent and systematic procedure for
admission to this country of refugees of special humanitarian concern
to the United States'' and to provide provisions for effective
resettlement of such refugees.\26\ The Refugee Act also, for the first
time, created a statutory basis for asylum, in order to help ensure
that U.S. statutory law conformed to Article 33 of the 1951 U.N
Convention relating to the Status of Refugees.\27\ The law directed the
Attorney General to establish a procedure for the granting of asylum
status to aliens physically present in the United States, or at a land
border or port of entry, if the Attorney General determines the alien
meets the definition of a refugee.\28\
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\25\ The Refugee Act of 1980 codified the definition of a
refugee from the 1967 United Nations Protocol Relating to the Status
of Refugees. United Nations, ``Protocol Relating to the Status of
Refugees'' (Jan. 31, 1967), 19 U.S.T. 6223, TIAS No. 6577, 606
U.N.T.S. 267.
\26\ Refugee Act of 1980, Public Law 96-212, sec. 101(b), 94
Stat. 102, 102 (Mar. 17, 1980).
\27\ H.R. Rep. No. 96-608 (1979).
\28\ Refugee Act of 1980, sec. 201(b), 94 Stat. at 105 (adding
section 208 of the INA, 8 U.S.C. 1158); see also id. at sec. 201(a),
94 Stat. at 102 (codifying the following definition of ``refugee'':
``The term `refugee' means (A) any person who is outside any country
of such person's nationality or, in the case of a person having no
nationality, is outside any country in which such person last
habitually resided, and who is unable or unwilling to return to, and
is unable or unwilling to avail himself or herself of the protection
of, that country because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in
a particular social group, or political opinion. . . .'').
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In June 1980, legacy Immigration and Naturalization Service (INS)
issued an interim regulation implementing provisions of the Refugee
Act.\29\ Among other things, the regulation permitted district
directors, in their discretion, to grant requests for employment
authorization made by aliens who had filed non-frivolous asylum
applications.\30\ DHS notes the significance of even that interim
regulation requiring that asylum applications be non-frivolous. The
regulation did not, however, build in a waiting period, meaning aliens
were eligible to request and receive employment authorization upon
filing their asylum applications.\31\ Further, the regulation did not
specify any other restrictions related to employment authorization,
such as the duration of employment authorization or grounds of
ineligibility.\32\
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\29\ Aliens and Nationality; Refugee and Asylum Procedures, 45
FR 37392 (June 2, 1980). This interim rule was not finalized until
1983. Aliens and Nationality; Asylum Procedures, 48 FR 5885 (Feb. 9,
1983).
\30\ 45 FR 37394.
\31\ Id.
\32\ Id.
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While the 1980 regulation fulfilled the Refugee Act's rulemaking
mandate, it was a temporary regulatory mechanism and merely functioned
to bridge the new statute with the system that was already in place
while the U.S. government took up a period of deliberate study and
analysis to design permanent procedures. 55 FR 30674, 30675 (July 27,
1990). In 1987, the INS published a more fulsome proposed regulation to
reform asylum adjudications. 52 FR 32552 (Aug. 28, 1987). In 1988, the
INS published a revised proposed rule in response to comments on the
1987 proposed rule, and in 1990, it promulgated the final regulation.
48 FR 5885 (Apr. 8, 1988); 55 FR 30674 (July 27, 1990). The final
system included, among other changes, the creation of a new corps of
asylum officers who would adjudicate asylum claims, moving away from
district directors. 55 FR 30676. The final rule also changed the
process for obtaining employment authorization, removing it from
district director discretion and instead mandating employment
authorization for asylum applicants who were not detained and whose
applications an asylum officer determined were not frivolous. Id. at
30676-77. The validity period was set to 1 year, with renewable
increments of up to 1 year. Id. The regulation also included automatic
termination of employment authorization upon expiration of the EAD or
60 days after denial of asylum, whichever was longer. Id.; see also id.
at 30682.
The INS's new regulatory scheme for asylum cases proved to be
flawed and inadequately resourced, and as a result, asylum processing
quickly became overwhelmed. By 1992, the INS received 103,964 asylum
applications but adjudicated only 21,996, a mere 21 percent of received
asylum applications.\33\ Since employment authorization was tethered to
the filing of a nonfrivolous asylum application, at this time asylum
applicants were typically employment authorized immediately.\34\ This
created a processing issue that fueled itself: as asylum adjudication
times increased, more aliens received employment authorization without
having to appear before an INS officer to establish identity or justify
their asylum claims, then more aliens began to use asylum applications
as a mechanism for prompt employment authorization which further
increased filings and asylum application processing times.\35\ In
[[Page 8631]]
addition to breeding asylum abuse and program integrity concerns, this
situation adversely impacted aliens with meritorious asylum claims by
increasing the backlog and decision wait times and leading to a rise in
unscrupulous immigration ``consultants'' who preyed on aliens with
meritorious asylum claims, convincing them to file boilerplate asylum
claims even when the aliens had their own valid claims.\36\
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\33\ INS, DOJ, ``1994 Statistical Yearbook of the Immigration
and Naturalization Service'' (Feb. 1996), p. 83.
\34\ FR 30681-82. Additionally, the direct filing of asylum
applications in the asylum office with jurisdiction over the
applicant's residence did not change until 1994. See 59 FR 14779,
14782.
\35\ See, e.g., David A. Martin, ``Making Asylum Policy: The
1994 Reforms'' 70 Wash. L. Rev. 725, 734-37 (July 1995).
\36\ Id.
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Faced with these difficulties and mounting pressures from internal
and external stakeholders, the INS published a proposed reform in March
1994 and final regulations in December 1994. 59 FR 14779 (Mar. 30,
1994); 59 FR 62284 (Dec. 5, 1994). INS's 1994 proposed rule could
easily describe the current state of DHS's asylum backlog, albeit with
an even larger backlog and longer wait times for adjudications:
The existing system for adjudicating asylum claims cannot keep pace
with incoming applications and does not permit the expeditious removal
from the United States of those persons who [sic] claims fail. While
part of this difficulty is attributable to limited resources, the
problem also stems in large part from the effort to meet procedural
requirements imposed by current regulations. On October 1, 1990, the
INS had a backlog of approximately 90,000 asylum claims. Since that
date, approximately 250,000 cases have been added to that backlog.
Asylum applications are received at a current rate approaching 150,000
per year. A significant and growing percentage of current receipts are
claims that appear on their face to be nonmeritorious or abusive. . . .
Indeed, most asylum applicants wait a year or more to receive even
initial decision on their cases.\37\
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\37\ See 59 FR 14780.
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As such, INS proposed several changes to the rules governing asylum
applications and associated EADs. Most relevant to what DHS endeavors
to do today were the provisions designed to decrease frivolous filings,
specifically the creation of the rule that asylum applicants could not
apply for employment authorization until 150 days had elapsed after
their initial filing of a complete asylum application.\38\ According to
the proposal, the INS then had 30 additional days to adjudicate the
employment authorization application.\39\ This 180-day period is
colloquially known as the ``180-day Asylum EAD Clock.'' \40\ The INS
proposed rule explained that the proposed 150-day wait for filing an
EAD application was important to encourage INS to adjudicate claims
promptly within the 150-day period to avoid having to separately
adjudicate the work authorization applications; and that it would
authorize INS to deny employment authorization to those whose
underlying asylum applications have been denied. The proposed rule
noted that this reform should reduce the number of asylum applications
filed primarily to obtain employment authorization. It also explained
that applicants with pending asylum claims would wait longer, but those
whose claims are not adjudicated within the 150-day period would,
subject to certain conditions, would be eligible to apply for and
receive work authorization; and that INS would adjudicate those
applications within 30 days, regardless of the merits of the underlying
asylum claim.\41\
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\38\ Id.
\39\ Id.
\40\ USCIS, ``The 180-Day Asylum EAD Clock Notice,'' <a href="https://www.uscis.gov/sites/default/files/document/notices/Applicant-Caused-Delays-in-Adjudications-of-Asylum-Applications-and-Impact-on-Employment-Authorization.pdf">https://www.uscis.gov/sites/default/files/document/notices/Applicant-Caused-Delays-in-Adjudications-of-Asylum-Applications-and-Impact-on-Employment-Authorization.pdf</a> (last updated Mar. 2025).
\41\ See 59 FR 14779, 14780.
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The INS received 345 public comments in response to the proposed
rule and, in December 1994, published a final rule. 59 FR 62284, 62285
(Dec. 5, 1994).\42\ While the INS changed several parts of the proposed
rule in response to public comments, the provisions governing the 150-
day waiting period to apply for employment authorization and the 30-day
processing timeframe for adjudicating employment authorizations for
pending asylum applicants were both retained. 59 FR 62290-62291. The
INS discussed several public comments submitted that were not
supportive of the proposed 150-day waiting period and 30-day processing
timeframe changes, which included concerns that:
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\42\ Not all public comments related to the 150-day waiting
period and the 30-day processing timeframe. Many of the public
comments related to the other proposed changes, including the
proposed filing fee for asylum applications and associated
employment authorization applications, the form of the asylum
application, how incomplete applications would be processed, renewal
of employment authorization, interviews and other procedures, and
how failures to appear by the alien would be processed. See
generally 59 FR 62284.
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<bullet> Asylum applicants would be forced to work illegally in
jobs where they would be underpaid and treated poorly but would have no
means of redress because of the fear of reprisals.
<bullet> Advocated for eliminating the waiting period and
maintaining the current rule, which allowed immediate applications for
employment authorization and issuance within 90 days.
<bullet> Advised providing exceptions to the waiting period by
granting employment authorization immediately or within 90 days to
applicants who demonstrate hardship or economic need (such as those
with no relatives in the United States or who have small children).
59 FR 62290. The INS responded to explain the belief that the
asylum process should be separated from the employment authorization
process and that the rule would discourage applicants from filing
meritless asylum applications solely to obtain employment
authorization. The INS further explained that it expected all
applicants to have work authorization after 180 days unless their
claims had been denied.
INS stated that it had considered in particular recommendations
that it establish alternate means for adjudicating employment
authorization based on the merits of the asylum application or on
economic need. INS noted that either alternative would invite a large
number of applications, thus diverting resources and undermining the
goal of asylum reform. The Department noted that it did not believe
loosening eligibility standards for employment authorization was the
appropriate path in light of the large number of applicants who applied
for asylum primarily as a means to gain work authorization, and that it
believed the rule would instead provide the best way to discourage
applications filed for this reason and enable it to grant asylum, and
work authorization, to applicants meriting such relief. 59 FR 62290-91.
Clearly, the intent was that this would decouple asylum
applications from employment authorization in order to disincentivize
frivolous filings and allow the system to function properly. Further,
DHS notes that the INS affirmatively decided to delay all aliens with
pending asylum applications (both meritorious and meritless filings)
the opportunity to apply for employment authorization expressly because
the INS believed this measure would help combat frivolous, fraudulent,
or otherwise meritless asylum applications filed primarily to obtain
employment authorization and regain control over the backlog and
processing times.
In 1996, shortly after the regulatory asylum reform, Congress
passed comprehensive immigration enforcement legislation, the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA), which,
among other things, included provisions
[[Page 8632]]
on asylum adjudications.\43\ IIRIRA states that any procedures
established under section 208(d)(1) of the INA; 8 U.S.C. 1158(d)(1),
``shall'' provide that, in the absence of exceptional circumstances,
final administrative adjudications of asylum applications ``shall'' be
completed within 180 days after the date applications are filed.\44\
Mirroring the 1994 regulatory reforms, IIRIRA also restricted the
Secretary from granting employment authorization to asylum applicants
until 180 days after the filing of the application for asylum.\45\
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\43\ Public Law 104-208, div. C, 110 Stat. 3009, 3009-546.
\44\ Id. sec. 604, 110 Stat. at 3009-694 (codified at INA sec.
208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii)).
\45\ Id. sec. 604, 110 Stat. at 3009-693 (codified at INA sec.
208(d)(2), 8 U.S.C. 1158(d)(2)).
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The regulatory reforms, either alone or in tandem with the
statutory change, succeeded in curtailing meritless claims and
delivering fair and timely decisions on asylum cases. New asylum
filings actually decreased from their peak of 149,566 in FY 1995 to
just 30,261 in FY 1999, a decrease of nearly 80 percent in only five
FYs.\46\ At the same time, the approval rate significantly increased,
from 15 percent of cases adjudicated in FY 1993 to 38 percent in FY
1999.\47\ In February 2000, the INS issued a News Release celebrating
the 1994 Asylum Reforms (which became effective in January 1995),
including the following statement by INS Commissioner Doris Meissner,
``Five years ago, INS launched badly needed reform of an asylum system
that was overwhelmed, unresponsive and vulnerable to misuse.'' \48\ The
news release continued:
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\46\ Ruth Ellen Wasem, Congressional Research Service, ``Asylum
and `Credible Fear' Issues in U.S. Immigration Policy'' (June 29,
2011), <a href="https://www.congress.gov/crs-product/R41753">https://www.congress.gov/crs-product/R41753</a>; INS, DOJ
``Asylum Reform: Five Years Later'' (Feb. 1, 2000), <a href="https://www.uscis.gov/sites/default/files/document/news/Asylum.pdf">https://www.uscis.gov/sites/default/files/document/news/Asylum.pdf</a>.
\47\ INS, DOJ ``1999 Statistical Yearbook of the Immigration and
Naturalization Service'' (Mar. 2002), p. 100. Percent approved is
`[t]he number of cases granted divided by the sum of: cases granted;
denied; and referred to an Immigration Judge following an
interview.''
\48\ INS, DOJ, ``Asylum Reform: Five Years Later'' (Feb. 1,
2000), <a href="https://www.uscis.gov/sites/default/files/document/news/Asylum.pdf">https://www.uscis.gov/sites/default/files/document/news/Asylum.pdf</a>.
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By 1992, almost two-thirds of all claims became part of a
burgeoning backlog due to a lack of resources and effective procedures
for processing those claims. By 1993, the asylum system was in a
crisis, having become a magnet for abuse by persons filing applications
in order to obtain employment authorization.\49\
---------------------------------------------------------------------------
\49\ Id.
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INS statistics showed a ``decrease of 75 percent in the number of
new claims being filed with INS, from 127,129 in FY 1993 to 30,261 in
FY 1999'' while ``the approval rate of cases heard by INS asylum
officers has increased from 15 percent of cases adjudicated in FY 1993
to an approval rate of 38 percent in FY 1999, another indicator that
INS is receiving more valid claims.'' \50\ These statistics show that
the 1994 rulemakings had an unmistakable impact on asylum program
integrity.\51\ With overall asylum filings decreasing and the approval
rate increasing, the clear implication was that ineligible aliens
(regardless of the basis for ineligibility or whether the filing was
frivolous, fraudulent, or otherwise meritless) stopped filing and, as a
result, clogged the asylum system. DHS seeks a similar result with this
proposed regulatory action.
---------------------------------------------------------------------------
\50\ Id.; see also INS, DOJ ``1999 Statistical Yearbook of the
Immigration and Naturalization Service'', p. 100 (Mar. 2002)
(Percent approved is `[t]he number of cases granted divided by the
sum of: cases granted; denied; and referred to an Immigration Judge
following an interview.'').
\51\ Id.; see also INS, DOJ, ``Asylum Reform: Five Years Later''
(Feb. 1, 2000), <a href="https://www.uscis.gov/sites/default/files/document/news/Asylum.pdf">https://www.uscis.gov/sites/default/files/document/news/Asylum.pdf</a>.
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C. Continued Need for Reform
Since IIRIRA, there have been no major statutory changes to the
asylum provisions to address the immigration realities faced by the
United States today. While little has changed with respect to asylum-
specific statutory and regulatory authorities for EADs for asylum
applicants since the 1994 regulatory reforms, there have been
significant operational changes and numerous challenges for these
cases, including what steps constitute a part of the adjudication and
the length of time to adjudicate the applications.\52\
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\52\ See 59 FR 62284, 62289 (Dec. 5, 1994). On July 26, 2018, in
Rosario v. USCIS, the U.S. District Court for the Western District
of Washington granted summary judgment against the government and
issued an order requiring USCIS to comply with the 30-day regulatory
timeline at 8 CFR 208.7. 365 F. Supp. 3d 1156 (W.D. Wash. 2018).
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Application Support Centers
One such operational challenge arose after the 1994 regulatory
reforms, related to biometrics. In 1994 the INS was still using FD-258
fingerprint cards for the submission of biometrics for immigration
benefit requests. The INS accepted those FD-258 fingerprint cards
directly from applicants and petitioners through the mail. In 1997,
when funding the agency for 1998, Congress prohibited the INS from
accepting any fingerprint cards collected by entities outside the INS
for immigration benefits, except in certain instances when collected by
law enforcement agencies and in certain overseas situations.\53\
Previously, certain ``designated fingerprint services'' entities could
collect fingerprints and submit them to INS. This FD-258 process was
fraught with both errors and fraud.\54\ To comply with the law, INS
established the Application Support Centers (ASCs), which continue to
exist nationwide today and which DHS operates for the collection of
biometrics for immigration benefits. See 63 FR 12979 (Mar. 17, 1998).
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\53\ See Departments of Commerce, Justice, and State, the
Judiciary, and Related Agencies Appropriations Act of 1998, Title I,
Public Law 105-119, 111 Stat. 2440, 2447-48 (1997).
\54\ See Office of the Inspector General, DHS, OIG-16-130
``Potentially Ineligible Individuals Have Been Granted U.S.
Citizenship Because of Incomplete Fingerprint Records'' (Sept. 8,
2016), <a href="https://www.oig.dhs.gov/reports/2016-09/potentially-ineligible-individuals-have-been-granted-uscitizenship-because">https://www.oig.dhs.gov/reports/2016-09/potentially-ineligible-individuals-have-been-granted-uscitizenship-because</a>.
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This new process was something of a double-edged sword. There were
notable advantages, including improved program integrity, capability
for identity verification, and a more automated conduit for criminal
history background checks. However, one time-intensive consequence was
that the new process required INS (and later USCIS) to affirmatively
schedule an alien's ASC appointment for biometrics collection after
receipt of a benefit request.\55\ At the time, the affirmative
scheduling of an ASC appointment after receipt of a benefit request
added anywhere from several weeks to over a month to the front-end
processing times for immigration benefit requests with an associated
biometrics collection. This continues to be true, as most aliens today
are scheduled for ASC
[[Page 8633]]
appointments approximately three to four weeks after receipt of a
benefit request.
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\55\ In essence, INS or USCIS would receive a benefit request
and an employee would determine whether the filing was subject to a
biometrics requirement. The employee would then determine the
nearest ASC to the alien, according to the address provided on the
request. The employee would have to then determine the next
available appointment date and time for a biometrics collection at
that particular ASC. Finally, the employee would have to create a
paper appointment notice for the alien and mail it to the address
provided on the request. In order to give the alien a reasonable
amount of notice, and account for postal service delivery of the
written appointment notice, appointments were typically scheduled
approximately 30 days from the date of the appointment notice. While
much of this process was automated in recent years by USCIS, there
is still the need to afford the alien adequate notice of the
appointment and not overbook appointments at a particular ASC.
Consequently, while there is variance in backlogs and throughputs
from ASC to ASC, today USCIS still estimates the wait for an ASC
appointment to be several weeks. Additionally, if the scheduled
appointment is not convenient, the alien can use an online tool to
reschedule an existing appointment, but that does not help schedule
initial appointments faster. See generally USCIS, ``Preparing for
Your Biometric Services Appointment'' (last updated July 6, 2023),
<a href="https://www.uscis.gov/forms/filing-guidance/preparing-for-your-biometric-services-appointment">https://www.uscis.gov/forms/filing-guidance/preparing-for-your-biometric-services-appointment</a>.
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Aggravated Felony Conviction Bar for EADs
With respect to employment authorization for pending asylum
applicants, the creation of ASCs and the requirement for biometrics
collection at certain facilities, operated by INS and later DHS,
brought to bear another problem. In the previously mentioned 1994 final
rule, INS amended the regulations to bar aliens convicted of an
aggravated felony from submitting an application for employment
authorization based on the pending asylum application. See 59 FR at
62299. Although there is no discussion on specific comments directly on
this point in the final rule, the INS did not amend the final rule to
remove the proposed bar for aliens convicted of an aggravated felony.
59 FR at 62291.
Prior to the 1994 rulemakings, having an aggravated felony
conviction was not grounds for denying an employment authorization
application,\56\ and prior to the creation of ASCs in 1998, the agency
accepted fingerprints on cards that were submitted with the benefit
request being filed. Once INS began requiring an alien to appear at an
ASC for biometric collection, it made compliance with both the
aggravated felony conviction ineligibility ground and the 30-day asylum
EAD processing timeframe extremely difficult. The most reliable way for
USCIS to identify criminality (e.g., aggravated felonies) is with a
Federal Bureau of Investigation (FBI) Identity History Summary (IdHS,
formerly known as a ``RAP sheet''), which locates criminal records
based on the alien's fingerprints.\57\ In order to obtain an alien's
RAP sheet from the FBI, INS needed to send the alien to the ASC--which
took several weeks. All the while, the 30-day asylum EAD processing
timeframe was running. See current 8 CFR 208.7(a)(1). Due to the
expanded logistics and process for obtaining RAP sheets, officers could
not comply with both provisions of 8 CFR 208.7(a)(1), which
simultaneously prohibited approval of an EAD to an aggravated felon and
required that the application be adjudicated within 30 days of filing.
See current 8 CFR 208.7(a)(1). This left INS, and, in turn, USCIS, in
an extremely difficult dilemma, as waiting on the results of biometrics
in order to identify an aggravated felony conviction for potential
ineligibility grounds meant that USCIS would violate the 30-day asylum
EAD processing timeframe. DHS recognizes that requiring biometrics
collection now and analyzing a variety of criminal issues may again
increase employment authorization application processing times, but DHS
firmly believes the increased benefits to national security and public
safety outweigh this potential delay in adjudications.
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\56\ As explained above, the June 1980 INS interim regulation
implementing provisions of the Refugee Act had no waiting period or
ineligibilities. 45 FR 37392; see also 48 FR 5885 (Feb. 9, 1983)
(finalizing this interim rule).
\57\ See Criminal Justice Information Services Division (CJIS),
Federal Bureau of Investigation (FBI), ``Next Generation
Identification (NGI),'' <a href="https://www.fbi.gov/services/cjis/fingerprints-and-other-biometrics/">https://www.fbi.gov/services/cjis/fingerprints-and-other-biometrics/</a>ngi (last visited May 23, 2025).
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Policy Memorandum 110 and USCIS-ICE Memorandum of Agreement.
Adding another layer of complexity to employment authorization
processing for pending asylum applicants, on July 11, 2006, USCIS
issued Policy Memorandum 110 (``PM 110'') entitled Disposition of Cases
Involving Removable Aliens, which mandated that officers refer
egregious public safety cases to USCIS' Fraud Detection and National
Security (FDNS) and suspend adjudication of such cases for 60 days or
until Immigration and Customs Enforcement (ICE) provides notification
of its action on the cases, which ever date was earlier.\58\ Imbedded
within PM 110 was a copy of a Memorandum of Agreement (MOA) with ICE,
dated June 20, 2006, negotiated and signed by both agencies.\59\ The
MOA detailed specific processes at both agencies for handling cases
referred to ICE by USCIS, including USCIS 60-day adjudicative hold, ICE
response time requirements, and specific guidance for cases where ICE
failed to provide any response within the 60-day timeline. The purpose
of the 60-day hold was to provide ICE with an appropriate amount of
time to adequately screen, vet, and investigate aliens and determine
what, if any, enforcement action was appropriate.\60\ However, the hold
also created a significant impediment to compliance with existing
regulations governing the timeline for adjudicating employment
authorization for pending asylum applicants. Consequently, this meant
that even where USCIS could schedule a biometrics collection and obtain
a RAP sheet within 30 days, if the RAP sheet (or any other source of
derogatory information) indicated the existence of a public safety
concern--even one that did not rise to the level of aggravated felony--
an additional 60-day hold would be required. Furthermore, in some
cases, scheduling such an alien for an ASC appointment could use the
entire 30-day (c)(8) EAD processing timeframe and that was prior to
referring the case to FDNS or ICE.
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\58\ USCIS Policy Memorandum No. 110, ``Disposition of Cases
Involving Removable Aliens'' (Jul. 11, 2006).
\59\ Id.
\60\ USCIS, PM 110 (``USCIS will interrupt adjudication and FDNS
will refer the case to ICE so that ICE has an opportunity to decide
it, when and how it will issue an NTA and/or detain the alien.'');
see also Memorandum of Agreement Between United States Citizenship
and Immigration Services and United States Immigration and Customs
Enforcement on the Issuance of Notices to Appear to Aliens
Encountered During an Adjudication (June 20, 2006).
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On May 11, 2007, USCIS issued the Interoffice Memorandum Processing
of Applications for Ancillary Benefits Involving Aliens Who Pose
National Security or Egregious Public Safety Concerns,\61\ which
clarified PM 110 as it related to primary and ancillary benefit
requests. The Interoffice Memorandum expressly stated, ``The
adjudication of ancillary applications and petitions shall be suspended
for 60 days or until ICE provides notification of its intended
action(s) on the primary applicant, whichever is earlier.'' In fact,
the Interoffice Memorandum added another population of cases to the mix
as well, by requiring that any application for an ancillary benefit
filed by an alien who poses a national security concern would now be
processed in a similar manner as an egregious public safety case.\62\
As such, for any employment authorization application filed by a
pending asylum applicant with potential national security or public
safety derogatory information, officers could not comply with both the
30-day EAD processing timeframe and USCIS policy with respect to ICE
referrals. This created another extremely difficult situation even in
cases where USCIS already had a RAP sheet: screening and vetting in
cases with national security or public safety concerns meant that USCIS
would violate the asylum 30-day EAD processing timeframe. As USCIS
receipts have increased, so has the need to thoroughly screen and vet
cases, especially where there may be security concerns, and while the
agency continues to meet its national security responsibilities, the
30-day EAD processing timeframe also continues to make this effort
challenging.
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\61\ Memorandum from Michael Aytes, Associate Director, District
Operations, HQOFO 70/1-P (May 11, 2007) <a href="https://www.uscis.gov/sites/default/files/document/memos/AncillaryEPSNS051107.pdf">https://www.uscis.gov/sites/default/files/document/memos/AncillaryEPSNS051107.pdf</a>.
\62\ Id.
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Rosario v. USCIS.
Another ensuing challenge encountered for asylum related
[[Page 8634]]
employment authorization applications was the Rosario litigation. On
May 22, 2015, Rosario v. USCIS was filed in the U.S. District Court for
the Western District of Washington under case no. 2:15-cv-00813
challenging the delays in processing initial EADs for asylum
applicants.\63\ On July 26, 2018, in a published order, the District
Court found that USCIS data revealed that ``from 2010 to 2017, USCIS
met its 30-day deadline in only 22% of cases--that is, out of 698,096
total applications, USCIS resolved only 154,629 applications on time.
In 2017, USCIS timely resolved only 28% of applications.'' \64\
---------------------------------------------------------------------------
\63\ 365 F. Supp. 3d 1156 (W.D. Wash. 2018).
\64\ Rosario, 365 F.Supp.3d at 1158.
---------------------------------------------------------------------------
However, the District Court recognized USCIS made some changes in
response to the need to more quickly adjudicate the (c)(8) EAD
applications. First, the court recognized that two years earlier, USCIS
had increased the validity period of an initial asylum EAD from one
year to two years.\65\ Second, the court recognized that the previous
year USCIS provided checklists on its websites to assist asylum
applicants seeking to submit (c)(8) EAD applications.\66\ The court
found one of the ``chief purposes'' of the 30-day asylum EAD processing
timeframe, as part of the larger INS regulatory amendments, was ``to
ensure that bona fide asylees are eligible to obtain employment
authorization as quickly as possible.'' \67\ The court noted that the
focus on expediency is reinforced by how the agency described the INS's
1994 proposed rule: ``The INS will adjudicate these applications for
work authorization within 30 days of receipt, regardless of the merits
of the underlying asylum claim.'' \68\ Ultimately, the court granted
the plaintiffs' motion for summary judgment, denied USCIS' motion for
summary judgment, found that USCIS was in violation of 8 CFR
208.7(a)(1), enjoined USCIS from further failing to adhere to the 30-
day asylum EAD processing timeframe as set forth in 8 CFR 208.7(a)(1),
and ordered USCIS to submit status reports every six months regarding
the rate of compliance with the 30-day EAD processing timeframe.\69\
USCIS still submits status reports in compliance with the court order
as of the publication of this NPRM.\70\
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\65\ See USCIS, ``USCIS Increases Validity of Work Permits to
Two Years for Asylum Applicants, U.S. Citizenship and Immigration
Services'' (Oct. 6, 2016), <a href="https://www.uscis.gov/archive/uscis-increases-validity-of-work-permits-to-two-years-for-asylum-applicants">https://www.uscis.gov/archive/uscis-increases-validity-of-work-permits-to-two-years-for-asylum-applicants</a>.
\66\ See Form M-1162, ``Optional Checklist for Form I-765(c)(8)
Filings,'' Asylum Applications (With a Pending Asylum Application)
Who Filed for Asylum on or after January 4, 1995, (July 17, 2017),
<a href="https://www.uscis.gov/archive/optional-checklist-for-form-i-765-c8-filings">https://www.uscis.gov/archive/optional-checklist-for-form-i-765-c8-filings</a>.
\67\ See Rosario, 365 F.Supp.3d at 1160 (citing to 62 FR at
10318).
\68\ See Rosario, 365 F.Supp.3d at 1160 (citing to 50 FR at
14780).
\69\ See Rosario, 365 F.Supp.3d at 1163.
\70\ See generally, USCIS, ``Rosario Class Action,'' <a href="https://www.uscis.gov/laws-and-policy/other-resources/class-action-settlement-notices-and-agreements/rosario-class-action">https://www.uscis.gov/laws-and-policy/other-resources/class-action-settlement-notices-and-agreements/rosario-class-action</a> (last updated
Sept. 19, 2022).
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Subsequent Regulatory Efforts and Litigation.
More recently, there have been multiple efforts to reform the
existing system, with the intent of relieving the agency of the burden
of adjudicating (c)(8) EADs within 30 days and diminishing the
incentive to file frivolous, fraudulent, or otherwise meritless
affirmative asylum applications. In recent years, DHS published two
regulations aimed at reforming the existing system and accomplishing
those goals. In 2020, DHS published the Removal of 30-Day Processing
Provision for Asylum Applicant-Related Form I-765 Employment
Authorization Applications (``Timeline Repeal Rule'') Final Rule, which
removed the regulatory provision stating that USCIS has 30 days from
the date an alien with a pending asylum application files the initial
application for employment authorization to grant or deny that
application. 85 FR 37502 (June 22, 2020). The rule also removed the
provision requiring that an application for renewal of a (c)(8) EAD
must be received by USCIS 90 days prior to the expiration of the
employment authorization. Id. In 2020, DHS also published the Asylum
Application, Interview, and Employment Authorization for Applicants
(``Broader Asylum EAD Rule'') Final Rule, which modified regulations
governing asylum applications, interviews, and eligibility for
employment authorization based on a pending asylum application. FR
38532 (June 26, 2020). Major provisions of that rule included removing
the ``deemed complete'' provision related to asylum application
filings, increasing the waiting period before asylum applicants were
eligible to file for and receive an EAD, and imposing other eligibility
requirements. Id. In January 2018, prior to the promulgation of these
rules, the affirmative asylum backlog stood at approximately 311,000
pending cases.\71\ By the end of FY 2022, the backlog had nearly
doubled to approximately 625,000 affirmative asylum applications, and
by the end of FY 2023, had tripled to more than 1 million pending
affirmative asylum cases.\72\ This drastic increase in the affirmative
asylum backlog highlights the dire situation USCIS finds itself in and
the urgent need for reform of the existing regulations and process.
---------------------------------------------------------------------------
\71\ 71 OIG, USCIS Faces Challenges Meeting Statutory Timelines
and Reducing Its Backlog of Affirmative Asylum Cases (July 3, 2024),
available at: <a href="https://www.oig.dhs.gov/sites/default/files/assets/2024-07/OIG-24-36-Jul24.pdf">https://www.oig.dhs.gov/sites/default/files/assets/2024-07/OIG-24-36-Jul24.pdf</a>.
\72\ Id.
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Litigation followed the publication of these two rules (``2020
Asylum EAD Rules''), including CASA \73\ in the U.S. District Court for
the District of Maryland, and Asylumworks \74\ in the U.S. District
Court for the District of Columbia. On September 11, 2020, the court in
CASA imposed a preliminary injunction requiring that USCIS not apply
the 2020 Asylum EAD Rules to members of CASA and Asylum Seeker Advocacy
Project (ASAP) organizations.\75\ The CASA preliminary injunction
applying only to members of the CASA and ASAP created a bifurcated and
operationally challenging application of the 2020 asylum rules in that
the rules were enjoined from applying to organizational members while
continuing to apply to non-member applicants. The CASA court made a
finding that was significant to this proposed rulemaking, when the
court determined the elimination of the 30-day Asylum EAD clock
(``Timeline Repeal Rule'') was arbitrary and capricious for two
different reasons. Specifically, the court found, first, that USCIS'
rationale for elimination of the 30-day processing timeframe belied the
evidence in the record and, second, that USCIS' responses to public
comments were conclusory and reflected that the agency did not consider
important policy alternatives (e.g., imposing a longer processing
timeframe).\76\ Specifically, the court found, ``But rather than giving
adequate consideration to this important alternative, the agency
provided a half-baked and internally contradictory explanation for
rejecting it. Its rationale does not pass muster.'' \77\ Relying on
Rosario, the court noted ``While the agency's difficulty in complying
with the 30-day deadline supports extending the timeline, it hardly
explains why there should be no timeline at all.'' \78\ In this
proposed rule, DHS seeks to
[[Page 8635]]
extend--rather than eliminate--the 30-day EAD processing timeline.
---------------------------------------------------------------------------
\73\ See CASA de Maryland, Inc. v. Wolf, 486 F. Supp. 3d 928 (D.
Md. 2020).
\74\ Asylumworks v. Mayorkas, 590 F. Supp. 3d 11 (D.D.C. Feb. 7,
2022).
\75\ CASA, 486 F. Supp. 3d at 973-74.
\76\ See id. at 961-63.
\77\ Id. at 963.
\78\ Id.
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On February 7, 2022, the U.S. District Court for the District of
Columbia issued an order in Asylumworks vacating the 2020 Asylum EAD
Rules in their entirety.\79\ On September 22, 2022, DHS published a
final rule titled ``Asylum Application, and Employment Authorization
for Applicants; Implementation of Vacatur'' (87 FR 57795 (Sept. 22,
2022)) that implemented the court order in Asylumworks by removing the
changes made by the 2020 Asylum EAD Rules and restored the regulatory
text that predated the 2020 Asylum EAD Rules.
---------------------------------------------------------------------------
\79\ See Asylumworks v. Mayorkas, 590 F. Supp. 3d 11 (D.D.C.
Feb. 7, 2022) (``Asylumworks vacatur''). The vacatur decision in
Asylumworks effectively mooted the CASA case. The CASA court
acknowledged the case had become moot on May 18, 2023, when it
granted the government's motion to dismiss. See CASA de Maryland,
Inc. v. Mayorkas, No. 8:20-CV-2118-PX, 2023 WL 3547497 (D. Md. May
18, 2023).
---------------------------------------------------------------------------
As a result of the Asylumworks court order, since February 7, 2022,
USCIS has been required to process all initial (c)(8) EAD applications
within 30 days of filing. While the court ordered a return to a
regulatory requirement that had existed until 2020, the burden created
by the order was significant and continues to impact overall EAD
processing due to the surge in (c)(8) EAD applications. Following the
Asylumworks vacatur, at the end of February 2022, there were 93,639
pending EAD applications to which the 30-day processing timeframe
requirement applied, including those aliens who were CASA or ASAP
members who already benefited from the 30-day processing timeframe and
those who were not previously subject to the CASA injunction and for
whom USCIS was not subject to a processing timeframe prior to the
vacatur.\80\ To address the backlog of cases and comply with the
court's order, USCIS surged resources for the entire initial (c)(8)
workload, including adding staff (pulling from other EAD workloads as
well as new hires) and authorizing overtime.
---------------------------------------------------------------------------
\80\ See Asylumworks v. Mayorkas 1:20-cv-03815-BAH (D.D.C. Feb.
7, 2022) memorandum opinion explaining CASA and ASAP members
previously were granted a preliminary enjoined enforcement of both
2020 EAD rules; see also USCIS Stopped Applying June 2020 Rules
Pursuant to Court Order in Asylumworks v. Mayorkas (Sept. 21, 2022)
(noting CASA and ASAP members no longer need to provide evidence of
membership with their initial C8 EAD applications), <a href="https://www.uscis.gov/archive/uscis-stopped-applying-june-2020-rules-pursuant-to-court-order-in-asylumworks-v-mayorkas">https://www.uscis.gov/archive/uscis-stopped-applying-june-2020-rules-pursuant-to-court-order-in-asylumworks-v-mayorkas</a>.
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Changing EAD Validity Periods
Additionally, USCIS utilized a different method to help manage the
(c)(8) EAD operational workload. In an effort to control the (c)(8)
processing times, on several occasions USCIS has extended the validity
periods of (c)(8) EADs.
First, in 2016, USCIS increased the validity period of an initial
and renewal asylum EADs from one year to two years.\81\ This fact was
recognized by the Rosario Court in its grant of summary judgment.\82\
As data referenced in other parts of this proposed rulemaking
illustrate, this did not help with receipts or processing times. So, on
September 27, 2023, USCIS extended the validity period for (c)(8) EADs
(both initials and renewals) again, this time from two years to five
years. The stated justification was, ``[t]he increase in the EAD
validity period will reduce the frequency with which affected
noncitizens must file an Application for Employment Authorization (Form
I-765) with USCIS if they wish to renew their EAD.'' \83\ The purpose
of this policy change was to alleviate some operational pressure to
adjudicate renewals prior to expiration solely based on USCIS
processing times with an overall benefit of supporting all timely
adjudications of employment authorization, including initial
applications for (c)(8) EADs.
---------------------------------------------------------------------------
\81\ See USCIS, ``USCIS Increases Validity of Work Permits to
Two Years for Asylum Applicants, U.S. Citizenship and Immigration
Services'' (Oct. 6, 2016), <a href="https://www.uscis.gov/archive/uscis-increases-validity-of-work-permits-to-two-years-for-asylum-applicants">https://www.uscis.gov/archive/uscis-increases-validity-of-work-permits-to-two-years-for-asylum-applicants</a>.
\82\ See Rosario, 365 F.Supp.3d at 1158.
\83\ Id.
---------------------------------------------------------------------------
To date, the agency is still ascertaining the effectiveness of the
validity period extension. What is clear is that with some
fluctuations, monthly asylum application filings rose from 36,728 in
October 2023 to 53,182 in January 2025, before falling to 40,344 in
April 2025.\84\ Initial applications for (c)(8) EAD filings increased
almost every single month from 90,307 in October 2023 before reaching a
high of 152,341 in January 2025.\85\ Since that time, initial EAD
(c)(8) EAD receipts have somewhat decreased over recent months, but
rebounded to 153,888 in July 2025.\86\
---------------------------------------------------------------------------
\84\ USCIS National Production Dataset (NPD), May 27, 2025.
\85\ Id; USCIS OPQ Data, ``I-765, Application for Employment
Authorization, C08 Eligibility Category, Receipts from August 1,
2024-July 31, 2025'' (Aug. 26, 2025).
\86\ Id.
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On December 4, 2025, USCIS issued policy guidance in the USCIS
Policy Manual to update the maximum EAD validity periods for certain
EAD categories, including aliens with pending asylum applications. See
USCIS, Policy Alert, ``Updating Certain Employment Authorization
Document Validity Periods'' (Dec. 4, 2025), <a href="https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20251204-EmploymentAuthorizationValidity.pdf">https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20251204-EmploymentAuthorizationValidity.pdf</a>. Effective December 5, 2025, the
maximum EAD validity period for aliens with pending asylum applications
has been reduced to 18 months. Id. This change is intended to ensure
more frequent vetting of aliens applying for work authorization in the
United States and will better enable USCIS to deter fraud and detect
aliens with potentially harmful intent. Id.Second, in 2024, DHS
published the ``Increase of the Automatic Extension Period of
Employment Authorization and Documentation for Certain Employment
Authorization Document Renewal Applicants'' Final Rule which increased
the automatic extension period for expiring EADs for certain renewal
applicants from 180 to 540 days in order to prevent aliens from
experiencing lapses in employment authorization due to significant
delays in EAD processing times. 89 FR 101208 (Dec. 13, 2024).\87\ While
this rule extended authorization periods for a range of EAD categories,
it applied to (c)(8) applicants, and DHS discussed the surge in (c)(8)
applications as part of the support for that rule. See, e.g., id. at
101220.\88\
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\87\ See also 87 FR 26614 (May 4, 2022) (temporary final rule on
this same topic); 89 FR 24628, 24634 (Apr. 8, 2024) (same).
\88\ On October 30, 2025, DHS ended the practice of
automatically extending the validity period for EADs in certain
categories, including aliens with pending asylum applications. 90 FR
48799 (Oct. 30, 2025). DHS explained that this change was designed
to ensure complete and thorough vetting of all EAD applicants and
that USCIS only issues EADs to aliens who are in fact eligible. 90
FR 48807-08.
---------------------------------------------------------------------------
During the (c)(8) EAD validity extension and the automatic
extensions, asylum application receipts increased while initial (c)(8)
EADs significantly increased. Reasonable minds can disagree on whether
it was prudent or appropriate from a program integrity perspective to
more than double the validity period of (c)(8) EADs to alleviate some
operational pressure on renewal based on USCIS processing times with an
overall benefit of supporting all timely adjudications of employment
authorization, including initial (c)(8) EAD applications. Nevertheless,
it is clear that DHS has attempted multiple solutions and attempted to
regain control over the
[[Page 8636]]
(c)(8) filings using regulatory, policy, and operational tools--but all
efforts have failed, and receipt volumes keep rising.
Frivolous, Fraudulent, and Meritless Filings
There are numerous and well-documented examples of frivolous,
fraudulent, and meritless asylum filings.\89\ Some asylum fraud schemes
have been perpetrated for the primary purpose of obtaining an asylum
EAD.\90\ While USCIS uses various methods to identify fraud in specific
affirmative asylum applications, a GAO Report concluded that despite
its robust methods USCIS actually had limited capability to detect
fraud in affirmative asylum applications.\91\ The GAO reported that
USCIS asylum officers encountered challenges with proving fraud in
asylum filings due to the nonadversarial, cooperative approach that
asylum officers are trained to take when interviewing asylum
applications.\92\ According to an Asylum Division Branch Chief cited in
the report, while the ``cooperative approach aims to protect genuine
asylees, it can also create favorable circumstances for ineligible
individuals who seek to file fraudulent claims'' and the GAO reported
that asylum officers ``in seven of the eight asylum offices we spoke
with told us that they have granted asylum in cases in which they
suspected fraud.'' \93\
---------------------------------------------------------------------------
\89\ See generally, DOJ, Press Release, ``Brooklyn Attorneys
Sentenced For Asylum Fraud Scheme'', Press Release, ``SoCal
Immigration Consultants Sentenced to Prison in Scheme That Filed
Bogus Asylum Applications for Hundreds of Chinese Nationals'' (May
6, 2014), <a href="https://www.ice.gov/news/releases/socal-immigration-consultants-sentenced-prison-scheme-filed-bogus-asylum-applications">https://www.ice.gov/news/releases/socal-immigration-consultants-sentenced-prison-scheme-filed-bogus-asylum-applications</a>;
DOJ, Press Release, ``Three Defendants Sentenced in Manhattan
Federal Court for Roles in Immigration Asylum Fraud Scheme'' (Mar.
14, 2014), <a href="https://archives.fbi.gov/archives/newyork/press-releases/2014/three-defendants-sentenced-in-manhattan-federal-court-for-roles-in-immigration-asylum-fraud-scheme">https://archives.fbi.gov/archives/newyork/press-releases/2014/three-defendants-sentenced-in-manhattan-federal-court-for-roles-in-immigration-asylum-fraud-scheme</a>; DOJ, Press Release,
``Florida Resident Charged in Scheme to Submit Fraudulent Asylum
Applications'' (Jan. 24, 2025), <a href="https://www.justice.gov/usao-ndca/pr/florida-resident-charged-scheme-submit-fraudulent-asylum-applications">https://www.justice.gov/usao-ndca/pr/florida-resident-charged-scheme-submit-fraudulent-asylum-applications</a>; DOJ, Press Release, ``Executives of Immigration
Services Company Charged in Scheme to Submit Fraudulent Asylum
Applications'' (Oct. 11, 2024), <a href="https://www.justice.gov/usao-ndca/pr/executives-immigration-services-company-charged-scheme-submit-fraudulent-asylum">https://www.justice.gov/usao-ndca/pr/executives-immigration-services-company-charged-scheme-submit-fraudulent-asylum</a>; DOJ, Press Release, ``Twenty-Six Individuals,
Including Six Lawyers, Charged in Manhattan Federal Court with
Participating in Immigration Fraud Schemes Involving Hundreds of
Fraudulent Asylum Applications'' (Dec. 18, 2012), <a href="https://archives.fbi.gov/archives/newyork/press-releases/2012/twenty-six-individuals-including-six-lawyers-charged-in-manhattan-federal-court-with-participating-in-immigration-fraud-schemes-involving-hundreds-of-fraudulent-asylum-applications">https://archives.fbi.gov/archives/newyork/press-releases/2012/twenty-six-individuals-including-six-lawyers-charged-in-manhattan-federal-court-with-participating-in-immigration-fraud-schemes-involving-hundreds-of-fraudulent-asylum-applications</a>; DOJ, Press Release,
``Middlesex County, New Jersey, Man Admits Attempting to Obtain
United States Citizenship by Fraud'' (Apr. 8, 2019), <a href="https://www.justice.gov/usao-nj/pr/middlesex-county-new-jersey-man-admits-attempting-obtain-united-states-citizenship-fraud">https://www.justice.gov/usao-nj/pr/middlesex-county-new-jersey-man-admits-attempting-obtain-united-states-citizenship-fraud</a>; DOJ, Press
Release, ``Broward Woman Charged in Scheme to Submit Fraudulent
Asylum Applications'' (Mar. 12, 2025), <a href="https://www.justice.gov/usao-sdfl/pr/broward-woman-charged-scheme-submit-fraudulent-asylum-applications">https://www.justice.gov/usao-sdfl/pr/broward-woman-charged-scheme-submit-fraudulent-asylum-applications</a>.
\90\ See generally, USCIS, Press Release, ``Phony Immigration
Attorney Who Filed Hundreds of Fraudulent Asylum Applications
Sentenced to More Than 20 Years in Federal Prison'' (Apr. 13, 2021),
<a href="https://www.uscis.gov/archive/phony-immigration-attorney-who-filed-hundreds-of-fraudulent-asylum-applications-sentenced-to-more">https://www.uscis.gov/archive/phony-immigration-attorney-who-filed-hundreds-of-fraudulent-asylum-applications-sentenced-to-more</a>; DOJ,
Press Release, ``Thai National Admits to Running Immigration Fraud
Scheme'' (Feb. 7, 2017), <a href="https://www.justice.gov/usao-ri/pr/thai-national-admits-running-immigration-fraud-scheme">https://www.justice.gov/usao-ri/pr/thai-national-admits-running-immigration-fraud-scheme</a>.
\91\ GAO, Report to Congressional Requesters, ``Asylum:
Additional Actions Needed to Assess and Address Fraud Risks'' (Dec.
2015), <a href="https://www.gao.gov/assets/gao-16-50.pdf">https://www.gao.gov/assets/gao-16-50.pdf</a>.
\92\ GAO, Report to Congressional Requesters, ``Asylum:
Additional Actions Needed to Assess and Address Fraud Risks'' (Dec.
2015), <a href="https://www.gao.gov/assets/gao-16-50.pdf">https://www.gao.gov/assets/gao-16-50.pdf</a>.
\93\ GAO Report, ``Asylum: Additional Actions Needed to Assess
and Address Fraud Risks'' (Dec. 2015), <a href="https://www.gao.gov/assets/gao-16-50.pdf">https://www.gao.gov/assets/gao-16-50.pdf</a>.
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This is not a new revelation. As the former INS Commissioner noted
in 2000 regarding the asylum reforms, ``By 1993, the asylum system was
in a crisis, having become a magnet for abuse by persons filing
applications in order to obtain employment authorization.'' \94\ Even
more telling, during the same period, incentives to abuse the asylum
system reemerged as well. The number of EADs approved for aliens with
asylum applications pending for more than 180-days increased from
55,000 in FY 2016 to 270,000 in FY 2022. This increase in EAD approvals
may suggest that meritless asylum applications, filed for the purpose
of obtaining work authorization, have increased alongside asylum
application processing times.\95\
---------------------------------------------------------------------------
\94\ DOJ, News Release ``Asylum Reform: Five Years Later'' (Feb.
1, 2000), <a href="https://www.uscis.gov/sites/default/files/document/news/Asylum.pdf">https://www.uscis.gov/sites/default/files/document/news/Asylum.pdf</a>.
\95\ Doris Meissner, Faye Hipsman, & T. Alexander Aleinikoff,
``U.S. Asylum System in Crisis: Charting a Way Forward'' Migration
Policy Institute, (Sept. 2018).
---------------------------------------------------------------------------
All told, a myriad of factors contributed to the size and growth of
the backlog, which then feeds abuse of the system. There were certainly
external factors. Over the past decade, USCIS, along with other DHS
components, have been substantially taxed due to a surge of aliens
attempting to enter the United States at and between ports of entry and
expressing a fear of returning to their home countries, thereby
requiring a credible fear or reasonable fear screening. Starting in
2014, USCIS saw a surge in affirmative asylum filings. In 2012, the
Asylum Division received approximately 3,000 applications per
month.\96\ By FY 2014, that number doubled, reaching 6,000 filings per
month and steadily grew until the peak in March 2017.\97\ A 2020
Citizenship and Immigration Services Ombudsman's Report found ``Total
apprehensions of inadmissible aliens at the Southern border, after
reaching an all-time high of 1.6 million in FY 2000, rose again from
444,859 in FY 2015 to 977,509 in FY 2019.'' \98\
---------------------------------------------------------------------------
\96\ USCIS, ``Affirmative Asylum Statistics: July, August and
September 2014'' (Oct. 28, 2014), <a href="https://www.uscis.gov/sites/default/files/USCIS/Outreach/Upcoming%20National%20Engagements/PED_">https://www.uscis.gov/sites/default/files/USCIS/Outreach/Upcoming%20National%20Engagements/PED_</a>Affirmative_Asylum_July_August_September_2014.pdf.
\97\ Id.
\98\ CIS Ombudsman's Report 2020, at 43.
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Additionally, COVID-19 exacerbated existing problems. On March 18,
2020, USCIS suspended routine in-person services to help slow the
spread of COVID-19.\99\ ``This included USCIS asylum offices and ASCs
used for collecting biometrics. On average, USCIS asylum offices
conduct between 2,000 to 4,500 interviews a month; these interviews
were not taking place during the period the offices remained closed.''
\100\
---------------------------------------------------------------------------
\99\ USCIS, ``USCIS Temporarily Closing Offices to the Public
March 18-April 1'' (Mar. 17, 2020), <a href="https://www.uscis.gov/archive/uscis-temporarily-closing-offices-to-the-public-march-18-april-1">https://www.uscis.gov/archive/uscis-temporarily-closing-offices-to-the-public-march-18-april-1</a>.
\100\ CIS Ombudsman's Report 2020, at 47.
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USCIS policy and processing changes also led to growth in the
backlog. INS developed ``Last-in, First-out'' (LIFO) processing in the
mid-1990s. The LIFO system is designed to allow employment
authorization for asylum seekers while discouraging aliens from
potentially filing meritless asylum applications to take advantage of
the backlog to obtain employment authorization during the period in
which their cases are pending in the backlog. In other words, by giving
priority to the newest cases, the intent was that aliens who may have
filed asylum applications solely to obtain work authorization would
have their cases heard more quickly and denied during the waiting
period, meaning that any efforts to file solely to obtain work
authorization would be fruitless. LIFO remained in place for years.
Then on December 26, 2014, USCIS began prioritizing working
affirmative asylum cases in the order which they were received; this
``First-In, First-Out'' (FIFO) processing was a deviation from past
agency practice.\101\ As a result of this change the asylum backlog
grew more than 1750 percent between 2013
[[Page 8637]]
and 2018.\102\ As such, to ``stem the growth of the agency's asylum
backlog'' and ``deter those who might try to use the existing backlog
as a means to obtain employment authorization,'' in January 2018 USCIS
returned to LIFO processing that had been in place for nearly 20 years
from 1995 to 2014.\103\ USCIS' announcement explained that returning to
LIFO would ``allow USCIS to identify frivolous, fraudulent or otherwise
non-meritorious asylum claims earlier and place those individuals into
immigration proceedings.'' \104\ However, the damage was already done.
As the former Commissioner of the INS noted, ``Beginning in 2010, and
especially since 2014, affirmative applications, credible-fear claims,
and backlogs--in both the immigration courts and the Asylum Division--
have ballooned.'' \105\ In FY2010, USCIS received 28,000 affirmative
asylum applications, but by FY2017, USCIS received 143,000 asylum
applications (a 402% increase).\106\
---------------------------------------------------------------------------
\101\ USCIS, Press Release ``USCIS Processing of Asylum Cases''
(Nov. 6, 2020), <a href="https://www.uscis.gov/archive/uscis-processing-of-asylum-cases">https://www.uscis.gov/archive/uscis-processing-of-asylum-cases</a>.
\102\ Id.
\103\ USCIS, Press Release, ``USCIS to Take Action to Address
Asylum Backlog'' (Jan. 31, 2018); <a href="https://www.uscis.gov/news/news-releases/uscis-take-action-address-asylum-backlog">https://www.uscis.gov/news/news-releases/uscis-take-action-address-asylum-backlog</a>.
\104\ Id.
\105\ Doris Meissner, Faye Hipsman, & T. Alexander Aleinikoff,
``U.S. Asylum System in Crisis: Charting a Way Forward'' Migration
Policy Institute, (Sept. 2018).
\106\ Id.
---------------------------------------------------------------------------
FDNS Directorate is responsible for safeguarding the integrity of
the nation's lawful immigration system by leading agency efforts to
combat fraud, detecting national security and public safety threats,
and maximizing law enforcement and Intelligence Community partnerships.
FDNS's case management system, FDNS NexGen, tracks certain records
actions relevant to USCIS adjudications. Specifically important for
this proposed rule, NexGen contains relevant data on pending and
adjudicated asylum applications with a ``Fraud Found'' Statement of
Findings (SOF). NexGen data reveals that FDNS has identified 8,392
aliens who filed an asylum application and also had a ``Fraud Found''
SOF relating to that alien.\107\ Further, NexGen data reveals 1,240
aliens who had attorneys or representatives, filed an asylum
application, and also had a ``Fraud Found'' SOF relating to that
alien.\108\ Of course, this is not an exhaustive list of fraud among
all asylum applications, since only cases where fraud is suspected are
even referred to FDNS for investigation.
---------------------------------------------------------------------------
\107\ It must be noted that not all of these Fraud Found SOFs
related to the asylum application, however this is to be expected.
Sometimes fraud and other irregularities are not discovered until
after an immigration benefit is approved and this is not exclusive
to asylum. For example, INA 318 establishes as a requirement for
naturalization that an alien was lawfully admitted as a permanent
resident, which is a specific requirement for naturalization that
every alien should have already complied with when they obtained
their permanent resident status. In the context of this data, asylum
fraud may not be discovered until an alien filed for adjustment of
status or naturalization--which is why the ``Fraud Found'' SOF may
relate to another application filed by the same alien who submitted
the application for asylum.
\108\ FDNS analysis of NexGen data, May 22, 2025.
---------------------------------------------------------------------------
USCIS recognizes that occasionally attorneys and representatives
are the source of asylum fraud. Within USCIS' Office of the Chief
Counsel is the USCIS Disciplinary Counsel, an office tasked with
tracking attorneys and representatives who engage in fraud or other
unscrupulous practices. According to USCIS Disciplinary Counsel, there
are numerous practitioners and former practitioners who engage in
fraudulent practices with asylum cases filed before USCIS.\109\ EOIR
publishes a list of disciplined practitioners who are not permitted to
appear before EOIR or DHS.\110\
---------------------------------------------------------------------------
\109\ See generally, Advance Local Media, ``Disbarred attorney
on trial for taking money from Hispanic clients found guilty'' (Apr.
11, 2017), <a href="https://www.al.com/news/birmingham/2017/04/disbarred_attorney_who_took_mo.html">https://www.al.com/news/birmingham/2017/04/disbarred_attorney_who_took_mo.html</a>; Office of the Massachusetts
Attorney General, ``Immigration Attorney Barred From Running Asylum
Scam, Ordered to Pay More Than $240,000 Following AG Lawsuit'' (Mar.
24, 2022), <a href="https://www.mass.gov/news/immigration-attorney-barred-from-running-asylum-scam-ordered-to-pay-more-than-240000-following-ag-lawsuit">https://www.mass.gov/news/immigration-attorney-barred-from-running-asylum-scam-ordered-to-pay-more-than-240000-following-ag-lawsuit</a>; Commonwealth of Massachusetts Board of Bar Overseers of
the Supreme Judicial Court, ``In re: Matter of George Maroun, Jr.,
BBO No. 674213'' (Oct. 21, 2024), <a href="https://bbopublic.massbbo.org/web/f/HRPT-1-22-00273564_et_al.pdf">https://bbopublic.massbbo.org/web/f/HRPT-1-22-00273564_et_al.pdf</a>; NPR, ``Thousands Could Be Deported
As Government Targets Asylum Mills' Clients'' (Sept. 28, 2018),
<a href="https://www.npr.org/sections/money/2018/09/28/652218318/thousands-could-be-deported-as-government-targets-asylum-mills-clients">https://www.npr.org/sections/money/2018/09/28/652218318/thousands-could-be-deported-as-government-targets-asylum-mills-clients</a>
(detailing Operation Fiction Writer in which over 3,500 primarily
Chinese immigrants unlawfully obtained asylum, ``During that probe,
federal prosecutors in New York rounded up 30 immigration lawyers,
paralegals and interpreters who had helped immigrants fraudulently
obtain asylum in Manhattan's Chinatown and in Flushing, Queens'');
DOJ, Press Release, ``Defendants at Two New York City Firms Prepared
Coached Clients to Lie During Immigration Proceedings'' (Feb. 18,
2021), <a href="https://www.justice.gov/usao-sdny/pr/attorneys-and-managers-fraudulent-asylum-scheme-charged-manhattan-federal-court">https://www.justice.gov/usao-sdny/pr/attorneys-and-managers-fraudulent-asylum-scheme-charged-manhattan-federal-court</a>; Matter of
Sofer, 2023 NY Slip Op 00033 Decided on January 05, 2023 Appellate
Division, First Department (Jan. 5, 2023), <a href="https://law.justia.com/cases/new-york/appellate-division-first-department/2023/motion-no-2022-03963-case-no-2022-00928.html">https://law.justia.com/cases/new-york/appellate-division-first-department/2023/motion-no-2022-03963-case-no-2022-00928.html</a> (``On or about March 7, 2022, the
Attorney Grievance Committee (Committee) filed a notice of petition
and petition of charges pursuant to Judiciary Law Sec. 90(2) and
the Rules for Attorney Disciplinary Matter (22 NYCRR) Sec. 1240.8
seeking an order that respondent be disciplined for professional
misconduct related to his representation of six clients with regard
to their immigration matters, particularly in filing asylum
applications and/or cancellation of removal relief.''); Supreme
Court of New Jersey Disciplinary Review Board, ``In the Matter of
Douglas Andrew Grannan, an Attorney at Law'' Docket No. DRB 20-236
(June 2, 2021), <a href="https://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1142939">https://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1142939</a>; Supreme Judicial Court of
Massachusetts, ``In re: Stephen A. Lagana'' No. BD-2010-072 from
hearing by the Massachusetts Board of Bar Overseers (Aug. 8, 2010),
<a href="https://bbopublic.massbbo.org/web/f/bd10-072.pdf">https://bbopublic.massbbo.org/web/f/bd10-072.pdf</a>.
\110\ See EOIR, DOJ, ``List of Currently Disciplined
Practitioners'' (May 14, 2025), <a href="https://www.justice.gov/eoir/list-of-currently-disciplined-practitioners">https://www.justice.gov/eoir/list-of-currently-disciplined-practitioners</a>; see also 8 CFR 1003.101.
---------------------------------------------------------------------------
In an effort to correlate disciplined or suspended attorneys to
frivolous, fraudulent, or meritless asylum filings, FDNS searched
asylum applications that were filed by, or associated with, these
disciplined or suspended attorneys and representatives. According to
USCIS data, the 1,074 (at the time USCIS reviewed) disciplined or
suspended attorneys and representatives were associated with 84,586
asylum applications in GLOBAL, USCIS' case management system for
asylum.\111\ This search was conducted by the attorney or
representative's name and, as such, could have yielded a small degree
of false positives when the attorney or representative has a common
name. At the same time, DHS recognizes that certain unscrupulous
attorneys or representatives may continue to file immigration benefit
requests for clients after being disciplined or suspended, in such
cases the attorney or representative simply does not file a G-28 for
the alien. In those cases, the FDNS name search for attorney or
representative would have underrepresented the actual number of asylum
applications filed by this population of disciplined or suspended
attorneys. DHS notes that this is a recognized problem and even the
American Immigration Lawyers Association (AILA) has issued guidance to
its practitioners regarding ethical concerns to be considered when an
attorney decides whether to file an affirmative application for asylum,
knowing the alien is not eligible for asylum, and the attorney is
acting solely for the purpose of having the alien deliberately placed
in removal proceedings.\112\ The AILA guidance notes that, depending on
the facts of a particular case, an attorney's conduct could be
considered frivolous under the
---------------------------------------------------------------------------
\111\ USCIS FDNS Systems and Integration Division Data, ``DOJ
EOIR Disbarred Attorney Match to Global Asylum Receipts'' (May 28,
2025).
\112\ Matthew Blaisdell and Michele Carney, ``Ethical
Considerations Related to Affirmatively Filing an Application for
Asylum for the Purpose of Applying for Cancellation of Removal and
Adjustment of Status for a Nonpermanent Resident'' American
Immigration Lawyers Association, (updated July 31, 2020) <a href="https://www.aila.org/library/submitting-an-affirmative-asylum-app-ethical-qs">https://www.aila.org/library/submitting-an-affirmative-asylum-app-ethical-qs</a>.
---------------------------------------------------------------------------
[[Page 8638]]
asylum-specific definition within 8 CFR, the American Bar Association's
Model Rules, and the more general definition of ``frivolous'' found in
8 CFR; violate the requirement that an attorney provide candor to the
tribunal; undercut the requirement that an attorney exhibit competence
and diligence; and, in certain circumstances, rise to the level of
criminal liability per 18 U.S.C. 1001 (knowing false statements) and 18
U.S.C. 1546 (fraud and misuse of visas and other immigration
documents).\113\
---------------------------------------------------------------------------
\113\ Id.
---------------------------------------------------------------------------
However, these cases with ``Fraud Found'' SOFs, or other fraud
possibilities relating to aliens or attorneys/representatives, are not
the only concern. One of the purposes of this rule is to combat
``frivolous, fraudulent, and meritless'' asylum applications and their
associated applications for employment authorization, but the FDNS
``Fraud Found'' data arguably only accounts for the ``fraudulent''
applications and likely not the ``frivolous'' or ``meritless''
applications. When FDNS finds fraud after an administrative
investigation, the record contains sufficient evidence to conclude
there was a knowingly false representation of a material fact with the
intent to deceive.\114\ While the ``Fraud Found'' data is not
exhaustive, it is the best direct data USCIS has on these cases; USCIS
could not track fraudulent cases that were not identified or cases with
fraud indicators that were not referred internally to FDNS. Quantifying
``meritless'' cases seems even more difficult. In these cases, the
alien's filing does not have to rise to the level of fraud or willful
misrepresentation under INA 212(a)(6)(C)(i); rather, ``meritless''
cases are simply cases that have no value or, possibly, that do not
meet the substantive requirements for asylum. ``Frivolous'' and
``meritless'' cases, by their definition, cannot be approved. However,
these cases remain in the pending affirmative asylum caseload, and the
aliens who filed them are eligible to apply for (c)(8) EADs as a
result.
---------------------------------------------------------------------------
\114\ See USCIS, ``Policy Manual,'' <a href="https://www.uscis.gov/policy-manual/volume-8-part-j-chapter-2">https://www.uscis.gov/policy-manual/volume-8-part-j-chapter-2</a> (last updated May 13, 2025).
---------------------------------------------------------------------------
USCIS data from FY2015 to present helps scope this problem and
reveals some startling trends. Of course, asylum applications have
risen incredibly since FY2015, when USCIS received 83,463 new asylum
applications and the number of pending cases was 118,217 cases.\115\ In
FY 2017, the new receipts reached 142,254 with a pending caseload of
306,078.\116\ Then, receipts in FY 2018 began to drop for four
consecutive years until 2021, when receipts were 65,518 with a pending
caseload of 452,181.\117\ In FY2022, new asylum receipts jumped to
247,790 with a pending caseload of 664,290.\118\ In FY2023, new asylum
receipts jumped again to 464,398, with a pending caseload of
1,081,440.\119\ In FY2024, new asylum receipts dipped from the previous
year slightly to 422,457; however the pending caseload continued to
grow, reaching a high total of 1,374,006.\120\ Through most of FY2025,
new receipts are 331,883, and the pending caseload has grown to
1,525,933.\121\ DHS provides in Table 2 data applicable to Form I-589,
Application for Asylum and for Withholding of Removal (principals only)
by FY, data type, and denial/referral reasons, FY2015-2025 (through May
22, 2025).
---------------------------------------------------------------------------
\115\ USCIS OPQ DATA, ``By Fiscal Year, Data Type, and Deny/
Referral Reasons'' (May 22, 2025).
\116\ Id.
\117\ Id.
\118\ Id.
\119\ Id.
\120\ Id.
\121\ Id.
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[[Page 8639]]
[GRAPHIC] [TIFF OMITTED] TP23FE26.017
Since 2015, new asylum receipt volumes have varied from a low of
65,518 in FY2021 to a high of 422,457 in FY2024--a 545% increase in
four FYs. Over the same ten-year period, approval numbers also varied
but not as wildly as new receipt volumes; approvals reached a low of
5,793 and a high of 17,175, also in FY2021 and FY2024, respectively (an
increase of just under 200 percent). However, denials and referrals
followed a different pattern. Since 2015, denials and referrals reached
a high of 42,213 in FY2019 and a low of 5,709 in FY2024. Table 3
presents data applicable to Form I-589, Application for Asylum and for
Withholding of Removal (principals only), by FY, from FY2015-2025
(through May 22, 2025), applicable to denials/referrals with a
previously approved (c)(8) EAD.
[[Page 8640]]
[GRAPHIC] [TIFF OMITTED] TP23FE26.018
When cross-referencing all asylum application denials with asylum
application denials where the alien had a previously approved
application for employment authorization in the (c)(8) category, a
notable pattern emerges. In FY2015, USCIS issued 15,515 denials or
referrals to asylum applicants, but only 4,578 (29.5%) had one or more
previously approved (c)(8) EAD.\122\ By FY2023, USCIS issued 5,963
denials or referrals to asylum applicants, but 4,351 (73%) had one or
more previously approved (c)(8) EAD.\123\ In FY2024, USCIS issued 5,709
denials or referrals to asylum applicants, but 5,087 (89%) had one or
more previously approved (c)(8) EAD.\124\ In FY2025 (through May 22,
2025), USCIS issued 11,872 denials or referrals to asylum applicants,
and 9,475 (79.8%) had one or more previously approved (c)(8) EAD.\125\
These data are significant.
---------------------------------------------------------------------------
\122\ USCIS OPQ DATA, ``Form I-589, Application for Asylum and
for Withholding of Removal (Principals only), Pending/Denial/
Referral with a previously approved I-765(c)(8) by FY for FY2015-
2025 (through May 22, 2025)''.
\123\ Id.
\124\ Id.
\125\ Id.
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At the simplest level, if there were no asylum backlog and each
asylum application received was adjudicated within 180 days, none of
those aliens whose asylum applications were denied would have been
granted an employment authorization. Looking at the percentages, it is
clear there is an increasing correlation between asylum denials and
previously approved (c)(8) EADs. Not only do these data serve as
evidence that current asylum processing is not functioning properly,
but it is also evidence that the processing is worsening. The INS's
original intention of discouraging aliens from filing meritless asylum
claims cannot be fulfilled given the backlog volume is at an all-time
high and nearly 90% of asylum denials last FY had a previously approved
(c)(8) EAD. USCIS notes that it is not necessarily assigning, and does
not need to assign, any fraudulent or bad intent to this population.
These are simply cases where the alien was ultimately found ineligible
for asylum, but, due to current agency regulations, policies, and
processes, was able to derive employment authorization despite asylum
ineligibility.
Despite the relative lack in changes for the adjudication of EADs
for aliens with pending asylum applications since the 1994 regulatory
reform, the number of asylum applications, and with it the number of
requests for employment authorization have increased exponentially,
fueling a massive asylum backlog. In FY 1994, the year the then-INS
promulgated the requirement that employment authorizations for aliens
with pending asylum applications be adjudicated within 30 days, the INS
received 144,577 applications for affirmative asylum.\126\ In FY 1996,
the year IIRIRA provided that, in the absence of exceptional
circumstances, final administrative adjudications of asylum
applications ``shall'' be completed within 180 days after the date
applications are filed,\127\ the INS received 107,130 applications for
affirmative asylum and had a backlog of 453,580 pending at the end of
the fiscal year.\128\ In FY 2024, USCIS received more than 419,000
applications for affirmative asylum, and adjudicated or closed more
than 126,000 affirmative asylum applications.\129\ At the end of FY
2024, the number of affirmative asylum applications pending with USCIS
grew to more than 1.35 million.\130\
---------------------------------------------------------------------------
\126\ INS, DOJ, ``1994 Statistical Yearbook of the Immigration
and Naturalization Service'' (Feb. 1996), p. 83.
\127\ IIRIRA sec. 604, Public Law 104-208, 110 Stat. 3009, 3009-
694, codified at INA sec. 208(d)(5)(A)(iii), 8 U.S.C.
1158(d)(5)(A)(iii).
\128\ INS, DOJ, ``1996 Statistical Yearbook of the Immigration
and Naturalization Service'' (Oct. 1997), p. 90-91.
\129\ USCIS, ``All USCIS Application Petition Form Types (Fiscal
Year 2024, Quarter 4)'' (Dec. 18, 2024), <a href="https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q4.xlsx">https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q4.xlsx</a>.
\130\ USCIS, ``All USCIS Application Petition Form Types (Fiscal
Year 2024, Quarter 4)'' (Dec. 18, 2024), <a href="https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q4.xlsx">https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q4.xlsx</a>.
---------------------------------------------------------------------------
As asylum caseloads both before USCIS and DOJ's EOIR have grown, so
have employment authorization applications for aliens with pending
asylum applications. For example, in FY 2013, USCIS received 41,000
initial (c)(8) EAD applications from aliens with pending asylum
applications before
[[Page 8641]]
USCIS or EOIR; in the month of January 2025 alone, USCIS received
approximately 152,000 initial (c)(8) EAD applications for the same
population, in addition to nearly 60,000 renewal (c)(8) EAD
applications from aliens with pending asylum applications.\131\ The
large influx has consumed an extraordinary amount of USCIS resources.
---------------------------------------------------------------------------
\131\ USCIS, ``Form I-765, Application for Employment
Authorization, Eligibility Category and Filing Type (Fiscal Year
2025, Quarter 1)'' (April 30, 2025), <a href="https://www.uscis.gov/sites/default/files/document/data/i765_application_for_employment_fy2025_q1.xlsx">https://www.uscis.gov/sites/default/files/document/data/i765_application_for_employment_fy2025_q1.xlsx</a>.
---------------------------------------------------------------------------
As a result of all these factors, DHS finds itself in a
comparatively worse position to that of the INS in the early 1990s.
Asylum application filings, and with them the asylum backlog, have
grown to an unmanageable size. The asylum program continues to attract
frivolous, fraudulent, or otherwise meritless claims, likely
incentivized by the decades long processing times and access to
employment authorization. Many modern asylum applicants are fleeing
generalized violence and poor economic conditions in their home
countries, but these, in and of themselves, are not grounds for
asylum.\132\
---------------------------------------------------------------------------
\132\ See Congressional Research Service, ``Central American
Migration: Root Causes and U.S. Policy'' (Oct. 30, 2024), <a href="https://www.congress.gov/crs-product/IF11151">https://www.congress.gov/crs-product/IF11151</a>; Congressional Research
Service, ``Asylum Eligibility for Applicants Fleeing Gang and
Domestic Violence: Recent Developments'' (Aug. 6, 2021), <a href="https://www.congress.gov/crs_external_products/LSB/PDF/LSB10617/LSB10617.3.pdf">https://www.congress.gov/crs_external_products/LSB/PDF/LSB10617/LSB10617.3.pdf</a>, discussing whether fleeing generalized violence or
domestic violence is a legitimate basis for asylum relief; Council
on Foreign Relations, ``Why Six Countries Account for Most Migrants
at the U.S.-Mexico Border'' (July 9, 2024), <a href="https://www.cfr.org/article/why-six-countries-account-most-migrants-us-mexico-border">https://www.cfr.org/article/why-six-countries-account-most-migrants-us-mexico-border</a>;
Council on Foreign Relations, ``Central America's Turbulent Northern
Triangle'' (July 12, 2023), <a href="https://www.cfr.org/backgrounder/central-americas-turbulent-northern-triangle">https://www.cfr.org/backgrounder/central-americas-turbulent-northern-triangle</a>; United Nations High
Commissioner for Refugees, ``El Salvador, Guatemala and Honduras:
Global Appeal 2025 Situation Overview'' (2025), <a href="https://reporting.unhcr.org/sites/default/files/2024-11/El%20Salvador%2C%20Guatemala%20and%20Honduras%20Situation%20Overview.pdf">https://reporting.unhcr.org/sites/default/files/2024-11/El%20Salvador%2C%20Guatemala%20and%20Honduras%20Situation%20Overview.pdf</a>.
---------------------------------------------------------------------------
Protecting Americans Workers
In addition to all the factors discussed at length above, such as
overall asylum program integrity and specifically disincentivizing
frivolous, fraudulent, and meritless asylum applications, DHS
recognizes the importance of U.S workers as well. DHS notes that when
adjudicating certain employment-based visas, statutory authorities
mandate that such alien workers not displace qualified, available
American workers who are capable of performing such services or labor,
and similarly that such alien employment not adversely affect the wages
and working conditions of workers in the United States.\133\ DHS is in
no way equating asylum applicants with temporary nonagricultural
workers; rather DHS merely notes the mandatory consideration for
American workers in certain visa programs. DHS recognizes there is
historical precedent to consider American workers when DHS exercises
discretion to determine the availability and scope of employment
authorization for aliens.
---------------------------------------------------------------------------
\133\ See INA sec. 101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b); see also 8 CFR 214.2(h)(6)(i).
---------------------------------------------------------------------------
For example, in 1974 the former INS Commissioner Leonard F.
Chapman, Jr. announced a significant change to the summer program
policy for foreign students.\134\ Under the new policy, foreign
students seeking summer employment had to apply and obtain permission
from the INS.\135\ In changing the long-standing student employment
policy, the INS recognized the foreign policy benefits for young aliens
studying in the United States, but determined that the protection of
job opportunities for American workers should be the ultimate
consideration.\136\ The following year, INS General Counsel Sam Bernsen
gave a presentation detailing this INS' decision further.\137\ He
recognized that F-1 student work was not banned by statute, but was
concerned that ``a United States citizen or a United States lawful
permanent resident [could] be fired from a campus job to provide
employment for a nonimmigrant student.'' \138 \Continuing, Bernsen
stated ``INA had to weigh the adverse effect on foreign relations
against the adverse effect on the labor market.'' \139\ This ultimately
meant students who wanted employment had to apply before the INS and
establish eligibility under the prescribed rules.
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\134\ See American Council for Nationalities Service,
Interpreter Releases, ``Foreign Student Work Policy Changed'' (May
14, 1974) Vol. 51, No. 16.
\135\ Id.
\136\ Id.
\137\ See Sam Bernsen, General Counsel, INS, DOJ, ``Leave to
Labor'' (September 2, 1975), American Counsel for Nationalities
Service Interpreter Releases, Vol. 52, No 35.
\138\ See Sam Bernsen, General Counsel, INS, DOJ, ``Leave to
Labor'' (September 2, 1975), American Counsel for Nationalities
Service Interpreter Releases, Vol. 52, No 35.
\139\ Id.
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Unfortunately, Department of State (DOS) data on F-1 student visa
admissions only goes back to 1987,\140\ so official data for 1974 F-1
visa admissions is not available from DOS. However, that data is
available from the Government Accountability Office (GAO).\141\
According to the GAO, there were approximately 154,580 F-1 students in
1974.\142\ If every single one of the F-1 students displaced an
American worker that is a relatively small number compared to DHS's
current situation with (c)(8) EAD applications. USCIS received 422,457
Form I-589s and 1.2 million applications for initial (c)(8) EADS in FY
2024.\143\ DHS notes that, if INS was justified in terminating a form
of work authorization in 1974 in order to prevent the possible
displacement of approximately 150,000 American workers, DHS would
similarly be justified today to consider the potential impact on up to
1.2 million American workers when reviewing a discretionary EAD
category like the (c)(8)s.
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\140\ See <a href="https://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/NIVClassIssuedDetailed/NIVClassIssued-DetailedFY1987-1991.pdf">https://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/NIVClassIssuedDetailed/NIVClassIssued-DetailedFY1987-1991.pdf</a>.
\141\ See GAO, ``Controls Over Foreign Students in U.S.
Postsecondary Institutions Are Still Ineffective'' (Mar. 10, 1983),
<a href="https://www.gao.gov/products/hrd-83-27">https://www.gao.gov/products/hrd-83-27</a>.
\142\ Id.
\143\ USCIS, ``All USCIS Application Petition Form Types (Fiscal
Year 2024, Quarter 4)'' (Dec. 18, 2024), <a href="https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q4.xlsx">https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q4.xlsx</a>.
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Building an Efficient Asylum System
As the INS did in 1994, DHS is implementing limitations on the
availability of employment authorization and more stringent
requirements for eligibility for employment authorization, in order to
protect U.S. national security and public safety, better manage the
asylum caseload, and disincentivize aliens who do not have meritorious
asylum claims from exploiting the asylum program to seek economic
opportunity in the United States. 59 FR 14779 (Mar. 30, 1994); 59 FR
62284 (Dec. 5, 1994).
As it currently functions, the asylum system is overwhelmed,
unresponsive, and vulnerable to abuse. Congress gave the Executive
Branch the discretion to make employment authorization available to
asylum applicants by regulation.\144\ Employment authorization for
aliens seeking asylum is not an entitlement under statute. DHS believes
that this rule is key to disincentivizing aliens from using asylum
primarily as a path to seek employment authorization in the United
States and to ensuring more timely processing of asylum applications.
By allowing DHS to focus resources on reducing the asylum backlog,
ensuring that asylum applications are processed in a fair and timely
manner, and divorcing the filing of an asylum application with a near
automatic grant
[[Page 8642]]
of employment authorization, this regulation will help reverse the
course of an overwhelmed system that has invited abuse.
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\144\ INA sec. 208(d)(2).
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DHS is now focusing on this regulation after years of different
efforts to address the building backlog and significant program
integrity concerns within the asylum program. The number of asylum
officers USCIS employs increased from 349 in 2015 to 979 in 2025, but
the asylum backlog has increased exponentially in spite of this. In the
last decade, USCIS has built or expanded asylum offices in 11 cities to
provide dedicated workspaces to accommodate the rapid growth in
staffing.\145\ USCIS has also implemented a number of operational
changes designed to realize efficiency gains. These changes include
post-interview case processing goals, the development of new
technology, and the expansion of digitization to modernize case
management.\146\ Additionally, in 2024, USCIS first used innovative
technology to identify asylum applications filed by aliens in removal
proceedings and launched an automated process to administratively close
those cases, thereby using fewer asylum staffing resources to quickly
remove those cases from the pending caseload while permitting officers
to focus on other pending cases. Subsequently, USCIS expanded its
technological capabilities to start rejecting asylum applications filed
by online applicants in removal proceedings, consistent with existing
procedures to reject paper asylum applications filed by aliens in
removal proceedings.\147\ USCIS also used FY 2024 appropriated funds to
support technology initiatives to digitize existing paper-filed asylum
applications in the backlog, automate additional case processing steps,
improve interview scheduling, and automatically identify multiple
asylum applications filed by the same principal applicant using
different A-numbers, all of which supported backlog reduction and
decreased overall processing times.\148\
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\145\ USCIS, DHS, ``Asylum Application Processing Fiscal Year
2023'' (Nov. 1, 2023), <a href="https://www.dhs.gov/sites/default/files/2024-01/2023_1101_uscis_asylum_application_processing_fy2023.pdf">https://www.dhs.gov/sites/default/files/2024-01/2023_1101_uscis_asylum_application_processing_fy2023.pdf</a>.
\146\ Id.
\147\ DHS Office of Inspector General, ``USCIS Faces Challenges
Meeting Statutory Timelines and Reducing Its Backlog of Affirmative
Asylum Claims'' (July 3, 2024), <a href="https://www.oig.dhs.gov/sites/default/files/assets/2024-07/OIG-24-36-Jul24.pdf">https://www.oig.dhs.gov/sites/default/files/assets/2024-07/OIG-24-36-Jul24.pdf</a>.
\148\ Letter from Representative Ra[uacute]l M. Grijalva (July
11, 2024) and DHS response (Aug. 16, 2024), <a href="https://www.uscis.gov/sites/default/files/document/foia/AffirmativeAsylum-RepresentativeGrijalva.pdf">https://www.uscis.gov/sites/default/files/document/foia/AffirmativeAsylum-RepresentativeGrijalva.pdf</a>.
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Despite DHS's fervent efforts to address the backlog, the recent,
drastic increase in both affirmative and defensive asylum filings has
prevented the agency from seeing any gains. For example, from FY 2022
to FY 2023, the number of affirmative asylum filings nearly doubled
from 247,074 to 463,320 applications.\149\ The total number of
defensively filed asylum applications also nearly doubled from 2022 to
2023, from 260,830 to 488,620 applications.\150\ In July 2024, the DHS
Office of Inspector General found that more than 786,000 affirmative
asylum applications were pending more than 180 days.\151\ In addition,
a concurrent and massive increase in border encounters also contributed
to the growth of the backlog because USCIS has had to divert resources
and asylum officers from processing affirmative asylum backlog cases to
address the high volume of credible fear and reasonable fear cases
\152\ that require interviews in a very short period of time. In
periods of peak credible fear and reasonable fear volumes, all
available USCIS Asylum Division staff were temporarily assigned to
these caseloads, reducing the number of asylum officers available to
conduct affirmative asylum interviews.\153\ In 2023, USCIS also trained
more than 1,000 employees from across USCIS to assist with the credible
fear workload as needed.\154\ This diversion of resources to screening
interviews further prevented USCIS from making meaningful progress to
reduce or eliminate the affirmative asylum backlog. As affirmative
asylum cases slowly wind their way through the immigration system,
aliens continue to receive EADs, even though many or most will be found
ineligible for asylum.\155\
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\149\ Noah Schofield and Amanda Yap, Office of Homeland Security
Statistics, ``Asylees: 2023'' (Oct. 2024), <a href="https://ohss.dhs.gov/sites/default/files/2024-10/2024_1002_ohss_asylees_fy2023.pdf">https://ohss.dhs.gov/sites/default/files/2024-10/2024_1002_ohss_asylees_fy2023.pdf</a>.
\150\ Id.
\151\ Office of Inspector General, DHS, ``USCIS Faces Challenges
Meeting Statutory Timelines and Reducing Its Backlog of Affirmative
Asylum Claims'' (July 3, 2024), <a href="https://www.oig.dhs.gov/sites/default/files/assets/2024-07/OIG-24-36-Jul24.pdf">https://www.oig.dhs.gov/sites/default/files/assets/2024-07/OIG-24-36-Jul24.pdf</a>.
\152 \ See 8 CFR 208.31, 8 CFR 235.3(b)(4). Any alien who
indicates a fear of persecution or torture, a fear of return, or an
intention to apply for asylum during the course of the expedited
removal process is referred to an asylum officer for an interview to
determine whether the alien has a credible fear of persecution or
torture in the country of return. Aliens with prior removal orders
for illegal entry or who are issued an administrative removal order
for having been convicted of an aggravated felony may be referred to
the asylum officer for a determination of whether the alien has a
reasonable fear of persecution or torture. These screening
interviews are required to be conducted by USCIS within a designated
timeframe.
\153\ See USCIS, DHS, ``Asylum Application Processing Fiscal
Year 2023 Report to Congress'' at 4, (Nov. 1, 2023), <a href="https://edit.dhs.gov/sites/default/files/2024-01/2023_1101_uscis_asylum_application_processing_fy2023.pdf">https://edit.dhs.gov/sites/default/files/2024-01/2023_1101_uscis_asylum_application_processing_fy2023.pdf</a>.
\154\ See email entitled ``Message from the Director--USCIS to
Support Credible Fear Screening'', April 25, 2023, located in the
administrative record.
\155\ EOIR, Asylum Decisions (Apr.4, 2025), <a href="https://www.justice.gov/eoir/media/1344851/dl?inline">https://www.justice.gov/eoir/media/1344851/dl?inline</a>.
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Another consequence of the asylum backlog is that many aliens who
will ultimately be denied asylum are able to remain in the United
States and obtain employment authorization. As discussed above, DHS
believes that imposing stricter requirements for (c)(8) EAD eligibility
will disincentivize some economic migrants and others who would
ultimately not qualify for asylum from applying and possibly from
making the arduous journey to the United States. For example, in
addition to the current regulatory language that excludes an alien with
an aggravated felony conviction as described under INA 101(a)(43), DHS
proposes to codify in regulation that it will exclude from (c)(8) EAD
eligibility any alien where there is reason to believe that the alien
may be barred from a grant of asylum due to one of the criminal bars to
asylum under sections 208(b)(2)(A)(ii)-(iii). These are also grounds
for denial of the alien's underlying asylum application. See INA
208(b)(2) and 8 U.S.C. 1158(b)(2). This would be a sensible and logical
change. Further, the change would increase program integrity by
ensuring that an alien who is statutorily ineligible for asylum cannot
file a frivolous or meritless asylum application in order to receive a
(c)(8) EAD and take advantage of current USCIS processing backlogs to
obtain employment authorization. Rather, under these proposed changes,
aliens who are ineligible for asylum would likewise be ineligible for a
``pending asylum'' EAD. As detailed above, the 1994 INS's final
regulatory asylum reform made clear, ``[t]his rule will discourage
applicants from filing meritless claims solely as a means to obtain
employment authorization. . . . When the system is fully operational,
asylum officers are expected to grant or refer affirmative claims
within about 60 days. . . . All applicants could have work
authorization after 180 days, unless their claims have been denied by
an Immigration Judge.'' 59 FR at 62290-91.
This is a significant point that is frequently lost given the
current size of the asylum and asylum EAD backlogs: the INS designed
the current regulatory landscape to be a means of primarily
adjudicating the underlying asylum application. The intent was to give
INS--today USCIS--180 days to
[[Page 8643]]
adjudicate the underlying asylum application and, if that could not be
accomplished, then the alien was not harmed because they were eligible
for employment authorization after 180 days. USCIS aimed to adjudicate
referrals of asylum applications within 60 days from the date a
complete asylum application was filed with USCIS, which would then
leave 120 remaining days for EOIR to complete processing of the
referred asylum application.\156\ As designed, the alien's asylum
application would be approved and any pending or approved application
for employment authorization was rendered moot by the grant of asylum
or the alien's asylum application would be denied and any application
for employment authorization was denied since the alien's asylum
application was no longer pending--but one of those two outcomes was
supposed to be reached within 180 days of filing. At the time, the
application for employment authorization was an interim or ``bridge''
benefit only until the asylum application was adjudicated.
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\156\ USCIS, Affirmative Asylum Procedures Manual (Feb. 2025),
sec. III.F.2.b., available at <a href="https://www.uscis.gov/sites/default/files/document/guides/AAPM.pdf">https://www.uscis.gov/sites/default/files/document/guides/AAPM.pdf</a>; USCIS, USCIS Asylum Division
Quarterly Stakeholder Meeting (Feb. 2019), p. 2, available at
<a href="https://www.uscis.gov/sites/default/files/document/outreach-engagements/PED_StakeholderPrivateAgenda_02222019.pdf">https://www.uscis.gov/sites/default/files/document/outreach-engagements/PED_StakeholderPrivateAgenda_02222019.pdf</a>.
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Due to the size of the current affirmative asylum pending caseload,
adjudication of the asylum application within 180 days of filing in
accordance with INA 208(d)(5)(A)(iii) is extremely difficult. In
FY2022, FY2023, and FY2024, the average processing time for asylum
applications that received a final decision (approval, administrative
closure, or denial/referral) was 35.5 months, 25.0 months, and 22.8
months, respectively.\157\ The processing times far exceed the 180-day
statutory requirement, but are nevertheless trending the right
direction. However, DHS believes that the level of effort currently
going into asylum and related EAD adjudications is not sustainable,
which is one reason DHS needs these proposed regulatory changes. If
USCIS were no longer governed by the 30-day processing timeframe, it
would permit the agency to focus resources on the pending asylum
applications, which in and of itself would reduce (c)(8) EAD
application filings. These cases drain agency resources from other
adjudications. Regardless of the backlog, the age of cases, or any
asylum application processing changes, under 8 CFR 208.7(a)(1) USCIS is
currently still required to adjudicate pending asylum applications for
employment authorization within 30 days of filing. The changes proposed
in this rule, specifically the pausing of (c)(8) EAD application
acceptances and the 365-day wait to file an application for employment
authorization, would allow USCIS to focus more on the underlying asylum
applications--just as the INS attempted to do with the 1994 regulatory
reforms.
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\157\ USCIS OPQ DATA, ``I-589 Processing Time With and Without
Admin Closed by Fiscal Year (FY2022-2025) (May 27, 2025). DHS notes
these processing times are under LIFO processing so these are still
the ``newer'' cases being adjudicated. Further, these adjudications
are not reducing the overall size of the asylum backlog.
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Misalignment of Eligibility Requirements
Another problem unrelated to the pending affirmative asylum
caseload that further acts as an incentive for frivolous, fraudulent,
and meritless filings is the fact that eligibility requirements between
the asylum application and the pending asylum application for
employment authorization do not align. Currently, an asylum application
will be denied if the alien was a persecutor, convicted of a
particularly serious crime, committed a serious non-political crime
outside the United States, or is a danger to the security of the United
States, among other reasons. See INA 208(b)(2), 8 U.S.C. 1158(b)(2).
However, an alien applying for employment authorization based on a
pending asylum application is only ineligible based on an aggravated
felony conviction.\158\ See 8 CFR 208.7(a)(1). The disparity between
eligibility requirements for the asylum application and the (c)(8) EAD
renders aliens who under no set of circumstances could be approved for
asylum (e.g., persecutors, aliens convicted of particularly serious
crimes, etc.) eligible for employment authorization while waiting for
their asylum application to be denied. This, in turn, incentivizes more
aliens to file frivolous, fraudulent, or meritless asylum applications
since they will obtain employment authorization 180 days after filing
the asylum application--even if statutorily ineligible for asylum--and
the alien's asylum application will likely remain pending for years
given the asylum backlog. Previously, neither form had an associated
filing fee,\159\ so there was no downside to filing this way because,
even if USCIS denied the asylum application years later, the alien was
employment authorized during that time. DHS's proposed rulemaking
attempts to align the eligibility requirements and end the incentive to
abuse the asylum system. Under this proposal, aliens would still apply
for employment authorization but DHS would, as part of the screening
and vetting of the alien as part of the (c)(8) EAD adjudication,
essentially determine if the alien was statutorily or regulatorily
ineligible or barred from asylum approval and, if so, DHS would deny
the application for employment authorization.
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\158\ This is not the only grounds for denial, rather it renders
the alien ineligible. As stated above, the alien can be denied for
filing the application for employment authorization before 150 days
have passed since filing the asylum application. 8 CFR 208.7(a)(1).
\159\ See USCIS, ``G-1055, Fee Schedule,'' (Apr. 18, 2025),
<a href="https://www.uscis.gov/g-1055">https://www.uscis.gov/g-1055</a>.
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The need to determine whether the alien applying for employment
authorization is also not ineligible for asylum justifies an additional
and related change being made in this rule as well, the mandatory
collection of biometrics for both initial and renewal (c)(8) EAD
applications and the requirement that applicants for an EAD submit all
records of charges, arrests, and convictions as part of their EAD
application. DHS would not be able to meaningfully screen and vet these
aliens in order to determine whether they are ineligible or barred from
asylum approval without biometrics and evidence of any criminal
history. DHS already requires biometrics from asylum applicants; for
the same reason DHS now proposes to collect biometrics on the pending
application for employment authorization. Requiring asylum applicants
submit biometrics and provide all records of charges, arrests, and
convictions as part of their EAD application helps ensure that DHS has
accurate and complete information before making a decision on the
employment authorization application.\160\ DHS is committed to
enforcing our immigration laws by securing our borders, disrupting
criminal organizations that bring people, drugs, and goods across the
border illegally, and reducing abuse of our processes and laws.
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\160\ USCIS criminal history record information requests to the
FBI are not always complete or up-to-date, depending on the
jurisdiction reporting the information. See generally National Crime
Prevention and Privacy Compact, 34 U.S.C. 40311-40316 (formerly
cited as 42 U.S.C. 14611-14616), including the definitions of
``party state'' and ``nonparty state'' found therein.
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DHS believes the provisions of this proposed rule will enable
meritorious applications to be granted sooner and meritless
applications to be referred or
[[Page 8644]]
denied sooner. DHS recognizes that these reforms will apply equally to
aliens with meritorious and meritless asylum claims and that either
population may experience some degree of economic hardship as a result
of heightened requirements for an EAD, the extended waiting period, and
the pauses in USCIS' acceptance of EAD applications from asylum
applicants. DHS also recognizes that some aliens whose asylum
applications would have been found meritorious--i.e., those who would
be able to show a well-founded fear of persecution in their country of
nationality (or last habitual residence) on account of a protected
ground--may abandon their applications or decide not to file
applications and forego the protection that asylum would provide
because they would not be able to support themselves while their asylum
application is adjudicated. DHS recognizes that extending the
processing time for employment authorization may also factor into a
potentially meritorious applicant's decision-making process before
applying for asylum. Due to this rule's proposed increased waiting
periods before an alien may receive employment authorization, there may
be aliens with potentially meritorious asylum claims who instead return
to a country where they may fear harm. DHS has seriously considered the
potential harm to this population and has determined that the benefits
of this rule outweigh these concerns: increasing program integrity,
focusing USCIS resources on the underlying asylum backlog, ensuring
aggravated felons and criminal aliens are not granted work
authorization, biometrically verifying the identity of all (c)(8) EAD
applicants and identifying any criminal history, if applicable, and
disincentivizing asylum as a means to file a frivolous, fraudulent, or
meritless application solely to obtain work authorization. Objectively
speaking, the asylum system is overwhelmed and in need of additional
reforms. The backlog of asylum cases weakens the integrity of the
system, allowing thousands of non-meritorious cases to languish and
obstructing the agency from addressing potential public safety and
national security concerns until years down the road when the cases are
finally adjudicated. The security of the United States and the
integrity of our immigration processes outweighs the potential harm to
a subset of the asylum applicant population. DHS has also considered
potential hardship caused by a lengthier wait before filing an
application for employment authorization or receiving employment
authorization, which may lead some aliens to attempt to work without
authorization. In order to minimize unauthorized employment, DHS has
instituted certain compliance measures through the Immigration Reform
and Control Act (IRCA), which requires employers to verify the identity
and employment eligibility of their employees and sets forth criminal
and civil sanctions for employment-related violations. See Public Law
99-603, 100 Stat. 3445 (1986). Additionally, section 274A(b) of the
INA, 8 U.S.C. 1324a(b), requires employers to verify the identity and
employment eligibility of all aliens hired in the United States. The
Employment Eligibility Verification form (Form I-9) is used by
employers to document this verification. Employers who fail to properly
complete Forms I-9 are subject to civil money penalties for paperwork
violations.\161\ This process serves to protect the public and aliens
who may attempt to work without authorization, which makes those aliens
vulnerable to exploitation by their employers. Aliens who still choose
to engage in unauthorized employment should be aware that this may
render them removable and ineligible for future benefits such as
adjustment of status.\162\ Finally, DHS acknowledges there may be
unknown impacts to the above populations, but DHS's responsibility to
safeguarding national security and public safety takes precedence and
justifies the approach proposed here.
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\161\ See INA sec. 274A(e)(5), 8 U.S.C. 1324a(e)(5).
\162\ See, e.g., INA sec. 237(a)(1)(C), 8 U.S.C. 1227(a)(1)(C);
8 CFR 214.1(e); INA sec. 274A, 8 U.S.C. 1324a.
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DHS's ultimate goal is to strengthen the benefit integrity of the
asylum process and help ensure that the system is not being exploited.
DHS has determined that the current model for obtaining employment
authorization as an asylum applicant is no longer practicable, but also
inconsistent with the original intent of the asylum system. The intent
has always been that once an asylum claim is filed, a decision is made
in a timely manner so that there is no need for an employment
authorization document until the alien has received the benefit. DHS
has determined it is reasonable to require additional time and security
requirements on asylum applicants before they may apply for and receive
an EAD. The urgency to protect national security, public safety, and
maintain the integrity of the U.S. asylum and immigration system
outweighs the hardship that may be imposed by an additional waiting
period the meritorious asylum applicant population would experience
prior to receiving an EAD.
1. Other Regulatory Alternatives Considered
DHS considered several alternatives before deciding on the changes
ultimately proposed in this rule and also recently implemented new
filing fees that impact both asylum applications and pending asylum
application-based applications for employment authorization.
On July 22, 2025, USCIS published the H.R.-1 Federal Register
Notice to inform the public of a new series of fees for various
immigration-related forms established in the OBBBA.\163\ USCIS recently
implemented statutorily-mandated filing fees, including a $100 non-
waivable filing fee for the asylum application and $100 annual fee for
every year the applicant's asylum application is pending, as well as a
$550 non-waivable filing fee for the initial (c)(8) employment
authorization application.\164\ Per statute, 50 percent of the asylum
application fee is credited to DHS. None of the annual fee revenue is
credited to USCIS and 25-percent of the (c)(8) employment authorization
application fees are credited to USCIS.
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\163\ USCIS Immigration Fees Required by HR-1 Reconciliation
Bill, 90 FR 34511 (Jul. 22, 2025); see H.R.1--One Big Beautiful Bill
Act (OBBBA), Public Law 119-21, Title X, 139 Stat. 72. See USCIS
Immigration Fees Required by HR-1 Reconciliation Bill, 90 FR 34511
(July 22, 2025).
\164\ On Oct. 30, 2025, USCIS paused the implementation of the
annual asylum fee, as required by an order issued in in Asylum
Seeker Advocacy Project v. United States Citizenship and Immigration
Services, et al., SAG-25-03299 (D. Md.). That order does not affect
this rule. See Asylum Seekers Advocacy Project v. United States
Citizenship and Immigration Svcs., No. 25-03299 (D.Md. Oct. 30.
2025).
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Historically, fee changes alone have not caused significant changes
in benefits requests, particularly when there are no alternatives.\165
\Therefore, DHS does not think that the new asylum application fees
from H.R.-1 alone are sufficient to dissuade the unsustainable volumes
of meritless asylum claims identified in this rule, although DHS
believes that it is possible that the fees may enhance the effects of
this proposed rule to deter frivolous, fraudulent, or otherwise
meritless asylum applications. Furthermore, as described in sections
III.B and III.C of this proposed rule, and discussed by recent USCIS
rulemakings 89 FR 101210 (Dec. 13, 2024), USCIS efforts to apply
[[Page 8645]]
additional resources toward faster processing of asylum and (c)(8)
employment authorization applications have consistently failed to match
rapid growth in volumes. DHS argues this is because the employment
authorization for longer durations caused by persistent asylum backlogs
have incentivized more asylum claims.\166\
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\165\ See USCIS, FY 2022-2023 Fee Review Regulatory Impact
Analysis (RIA), <a href="https://www.regulations.gov/document/USCIS-2021-0010-0031">https://www.regulations.gov/document/USCIS-2021-0010-0031</a>; See also USCIS, FY 2022-2023 Fee Rule Price Elasticity
Regression Analysis, <a href="https://www.regulations.gov/document/USCIS-2021-0010-0033">https://www.regulations.gov/document/USCIS-2021-0010-0033</a>.
\166\ See USCIS, Increase of the Automatic Extension Period of
Employment Authorization Final Rule's Background section detailing
efforts to address EAD backlogs over the last 5 years. Section B.4
acknowledges asylum backlogs grew in FY23 despite USCIS's best
efforts, and that this further contributed to an unsustainable
quantity of (c)(8) EAD renewals in FY24. <a href="https://www.federalregister.gov/documents/2024/12/13/2024-28584/increase-of-the-automatic-extension-period-of-employment-authorization-and-documentation-for-certain">https://www.federalregister.gov/documents/2024/12/13/2024-28584/increase-of-the-automatic-extension-period-of-employment-authorization-and-documentation-for-certain</a>.
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One alternative DHS considered and evaluated was the possibility of
re-publishing the elimination of the 30-day EAD processing timeframe
rule (``Timeline Repeal Rule'') from 2020, but with updated filing
data, more recent economic analysis, and additional justification for
the proposed changes. DHS recognizes that any such changes are within
the Secretary's authority under INA 274A(h)(3)(B) (8 U.S.C.
1324a(h)(3)(B)), INA 208(d)(1) and (d)(5)(B) (8 U.S.C. 1158(d)(1) and
(d)(5)(B)), and INA 208(d)(2) (8 U.S.C. 1158(d)(2)). However, DHS is
mindful of the CASA de Maryland, Inc. v. Wolf holding that determined
the elimination of the 30-day Asylum EAD clock (``Timeline Repeal
Rule'') was arbitrary and capricious for multiple different reasons.
That court found that USCIS' rationale for elimination of the 30-day
processing timeframe belied the evidence in the record and USCIS'
responses to public comments were conclusory and reflected that the
agency did not consider important policy alternatives.\167\
Specifically, the court was not convinced that USCIS considered
imposing a longer processing timeframe instead of removing the
timeframe altogether.\168\ Despite the fact that DHS still believes
there should be no processing timeframe on (c)(8) EADs--just as there
are currently no processing timeframes on any other EAD category--DHS
was uncertain if a second proposed outright elimination of the (c)(8)
EAD processing timeframe would be successful even with updated filing
data, more recent economic analysis, additional consideration of
alternatives, and additional justifications. A significant amount of
work goes into regulatory changes, and DHS would rather not risk
another years long effort merely to be subject to adverse court action
and, in the end, still be required to adjudicate pending asylum
applications and associated employment authorization applications under
the current, and flawed, regulatory authorities and timeframes.
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\167\ See CASA de Maryland, Inc. v. Wolf, 486 F.Supp.3d 928,
961-963 (D. Md. 2020).
\168\ See id.
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A second alternative DHS considered and evaluated was extending the
waiting period for filing an application for employment authorization
based on a pending asylum application from the current 150 days to a
significantly longer period, something closer to four or five years.
Extending this waiting period would be well within the Secretary's
authority under INA 274A(h)(3)(B) (8 U.S.C. 1324a(h)(3)(B)), INA
208(d)(1) and (d)(5)(B) (8 U.S.C. 1158(d)(1) and (d)(5)(B)), and INA
208(d)(2) (8 U.S.C. 1158(d)(2)), which clearly recognize the
discretionary authority to extend employment authorization to aliens,
the authority to establish regulations concerning the procedures and
conditions on asylum applications, and the discretion to grant
employment authorization to aliens applying for asylum if 180 days have
passed since filing the application for asylum. The benefits of such an
extension are that it would essentially remove all screening and
vetting roadblocks discussed above (e.g., ASC appointment delays, 60
day-pause for referrals to ICE, etc.) and it would also remove any
incentive for aliens to file frivolous, fraudulent, or otherwise
meritless asylum applications in order to receive employment
authorization. Under such a proposal, very few aliens would actually
wait five years for their initial employment authorization because
asylum cases are currently worked under LIFO processing, so the
overwhelming majority of recent asylum applicants would receive a final
adjudication in less than five years. Even without the proposed
regulatory changes DHS needs to improve operations as well as screening
and vetting, in FY2022, FY2023, and FY2024, the average processing time
for asylum applications that received a final decision (approval,
administrative closure, denial/referral) was 35.5 months, 25.0 months,
and 22.8 months, respectively.\169\ While the processing times far
exceed the 180-day target provided in INA 208(d)(5)(A)(iii), they are
trending in the right direction and are less than the four or five year
alternative proposal considered.
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\169\ USCIS OPQ DATA, ``I-589 Processing Time With and Without
Admin Closed by Fiscal Year (FY2022-2025) (May 27, 2025).
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DHS ultimately decided not to extend the 150-day EAD clock this far
for several reasons. While a four to five year waiting period would be
a strong disincentive for frivolous, fraudulent, or meritless
applications, this would likely lead to strong opposition from
immigration advocates and asylum applicants who may view this fixed and
lengthy change in the waiting period as unduly harsh. While the
proposed pause and restart method will likely lead to a years-long wait
as well, that pause can be lifted, unlike the change proposed in this
second alternative. In the end, DHS determine
[…truncated; see source link]Indexed from Federal Register on February 23, 2026.
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.