United States: DHS Proposes Restrictions on Employment Authorization for Asylum Applicants

If finalized, the regulation would require asylum applicants to wait 365 days after USCIS receipt of a complete asylum application before they would be eligible to apply for an initial asylum-based EAD. Under current rules, the waiting period is 150 days before an asylum applicant can submit an initial EAD application.

U.S. Citizenship and Immigration Services (USCIS) would have 180 days to adjudicate the EAD application, unless the application were to require background checks or other vetting. Under current rules, USCIS has 30 days to adjudicate the EAD request, though may not approve the application before 180 days have elapsed since the filing of the asylum application.

The proposal would restrict eligibility for an asylum-based EAD on several new grounds, including where the government has reason to believe that the applicant might be subject to a criminal  bar to asylum; where the underlying asylum application is denied within the 365-day waiting period or before the initial EAD application is adjudicated; where the applicant filed their asylum application after the standard one-year deadline, with some limited exceptions; or where the applicant entered or attempted to enter the United States other than lawfully through a U.S. port of entry (with certain exceptions), even though such an entry would not restrict the applicant from seeking asylum.

The proposed rule would allow USCIS to temporarily stop accepting initial asylum-based EAD applications when the average processing time for affirmative asylum applications in the preceding 90 days exceeds 180 days. USCIS would resume accepting initial EAD applications if the average processing time for affirmative asylum applications is 180 days or less for a period of 90 consecutive days. Current processing times for asylum applications are significantly greater than 180 days, and according to the preamble to the proposed rule, USCIS expects that if the proposed rule is implemented, new EAD applications for pending asylum applicants would be paused for an extended period, possibly many years.

Under the proposal, an asylum-based EAD would be terminated immediately if the underlying asylum application is denied by an asylum officer, unless the case is referred to an immigration judge – a harsher standard than currently imposed. Under existing rules, the asylum-based EAD terminates on its expiration date or 60 days after a USCIS denial of asylum, whichever is longer. Under the proposed rule, if an immigration judge denies the underlying asylum application, the EAD would terminate 30 days after the date of denial unless the applicant makes a timely appeal, whereas under current rules, if asylum is denied by an immigration judge, the EAD terminates on its expiration date unless the applicant files a request for administrative or judicial review.

If implemented, the regulation would make it more difficult and time-consuming for an asylum applicant to obtain employment authorization, delaying their ability to enter the workforce, and unless USCIS significantly reduces asylum application processing times, it could prevent asylum applicants from being able to work for the duration of the pendency of the application. The proposal would also make it more difficult for work-authorized foreign nationals in immigration programs set for termination or expiration – such as Temporary Protected Status or humanitarian parole – to pursue asylum while continuing to work; if the rule were finalized, such foreign nationals would be subject to uncertainty and gaps in employment authorization.

DHS will accept public comments on the proposed regulation through April 24. The agency is required to give meaningful consideration to the public’s feedback, but there is no minimum or maximum period for this stage of review. The agency could then publish a final version of the rule with an implementation period, which typically falls 30 or 60 days after publication.

Comments from the business community will be important to make the Administration aware of the rule’s impact on the stability of their workforce and on access to talent. If your organization is interested in commenting on the proposed rule, please contact your designated Fragomen professional or the firm’s Government Strategies and Compliance Group.