DHS、庇護申請者の就労許可制度の見直しを提案、待機期間を365日に延長

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( printed page 8616)

U.S. Citizenship and Immigration Services, DHS.

Notice of proposed rulemaking.

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.

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.

You may submit comments on the entirety of this proposed rulemaking package, identified by DHS Docket No. 2025-0370, through the Federal eRulemaking Portal: http://www.regulations.gov. In accordance with 5 U.S.C. 553(b)(4), the summary of this rule may also be found at https://www.regulations.gov. 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 http://www.regulations.gov, 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 http://www.regulations.gov, 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.

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).

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) ( printed page 8617)

K. Executive Order 12630 (Governmental Actions and Interference With Constitutionally Protected Property Rights)

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

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 http://www.regulations.gov, 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 http://www.regulations.gov, 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 http://www.regulations.gov.

Docket: For access to the docket and to read background documents or comments received, go to http://www.regulations.gov, 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.

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.

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. ( printed page 8618)

DHS proposes to codify in regulation the following major changes:

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.

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.

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).

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.

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.

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).

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.

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).

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).

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.

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 ( printed 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.

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.

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.

DHS proposes to remove the reference to recommended approvals because USCIS no longer issues recommended approvals as a preliminary decision for affirmative asylum adjudications.

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.

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.”

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.

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.

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 ( printed page 8620) would be no changes related to waiting periods for renewal (c)(8) EAD applications within this proposed regulatory action.[4]

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.

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. ( printed 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.

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.

( printed page 8622)

( printed page 8623)

( printed page 8624)

( printed page 8625)

( printed page 8626)

( printed page 8627)

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.

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]

Additional authority for this rule is found in:

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.

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]

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]

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 ( printed 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.

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.

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 ( printed 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.

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.

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]

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]

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 ( printed 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]

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]

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]

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:

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 ( printed 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]

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:

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]

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.

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]

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. See63 FR 12979 (Mar. 17, 1998).

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 ( printed page 8633) appointments approximately three to four weeks after receipt of a benefit request.

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.

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.

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.

Another ensuing challenge encountered for asylum related ( printed 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]

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]

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.

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 ( printed page 8635) extend—rather than eliminate—the 30-day EAD processing timeline.

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.

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.

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.

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]

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), https://www.uscis.gov/​sites/​default/​files/​document/​policy-manual-updates/​20251204-EmploymentAuthorizationValidity.pdf. 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]

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 ( printed page 8636) (c)(8) filings using regulatory, policy, and operational tools—but all efforts have failed, and receipt volumes keep rising.

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]

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]

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]

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]

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 ( printed 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]

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.

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]

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

( printed 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]

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.

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).

( printed page 8639)

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.

( printed page 8640)

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.

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]

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 ( printed 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.

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]

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.

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.

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.

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 ( printed page 8642) of employment authorization, this regulation will help reverse the course of an overwhelmed system that has invited abuse.

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]

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]

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 ( printed 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.

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.

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.

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.

DHS believes the provisions of this proposed rule will enable meritorious applications to be granted sooner and meritless applications to be referred or ( printed 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.

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.

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.

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 ( printed 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]

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.

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.

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 determined that while a very strong disincentive for meritless filings, there would be numerous and strong public comments that did not support such a change, and the justification for such an extension of that duration may not be supported by data.

Another alternative considered by DHS was ending employment authorization for pending asylum applicants altogether, in other words, terminating the (c)(8) EAD category. Eliminating the (c)(8) EAD category 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. An alien with a pending asylum application is not entitled to employment authorization by statute, but Congress granted the Secretary discretion to authorize employment, through regulations, for these aliens while the asylum application is pending adjudication. See INA 208(d)(2), 8 U.S.C. 1158(d)(2). This alternative would obviate the need to screen and vet because there would be no application for employment authorization submitted by the alien. This alternative would really be the strongest disincentive possible for filing frivolous, fraudulent, or meritless asylum filings, not by adding a delay but by completely eliminating temporary employment authorization as an incentive for filing an asylum application. This option would eliminate any benefit to having a pending, but meritless asylum application in the backlog for years. ( printed page 8646) Under such a proposal, with no (c)(8) EAD to apply for, aliens with pending asylum applications would not be employment authorized until USCIS approved the underlying asylum application.

DHS ultimately decided not to pursue such an alternative at this time. First, DHS has already established that the primary problem is the processing of the volume of cases in the backlog. Second, because employment authorization for pending asylum applicants has been available for decades, since prior to the INS's 1994 asylum reform rulemakings, it is not clear at this time whether data exists to support such a change. Moreover, DHS was concerned with the anticipated public comments that did not support such a change. Additionally, DHS believes that the proposed provision of this rule tethering employment authorization to asylum processing times by pausing the acceptance of initial (c)(8) EADs if average asylum processing rises above 180 days for 90 consecutive days would achieve the same positive impact that terminating the (c)(8) EAD category altogether would achieve but through less severe means.

Should this rule prove ineffective or be enjoined, DHS will likely re-evaluate one or more of these alternative options for future asylum applications and their associated employment authorization applications given the ongoing incentive they represent for illegal entry to the United States and abuse of the asylum system to the detriment of meritorious asylum seekers.

Asylum is a discretionary benefit that can be granted by the Secretary or Attorney General if the alien establishes, among other things, that he or she has experienced past persecution or has a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA sec. 208(b)(1), 8 U.S.C. 1158(b)(1) (providing that the Attorney General and Secretary “may” grant asylum to refugees); INA sec. 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A) (defining “refugee”). The INA bars certain aliens from obtaining asylum, including aliens who are persecutors, have been convicted of a particularly serious crime (which includes aggravated felonies), have committed serious nonpolitical crimes outside of the United States, are a danger to the security of the United States, have engaged in certain terrorism-related activities or are members of terrorist organizations, or were firmly resettled in a third country.[170]

The INA also bars certain aliens from applying for asylum.[171] Aliens generally must apply for asylum within 1 year from the date of their last arrival in the United States.[172] An alien who files for asylum after the 1-year filing deadline is not eligible to apply for asylum unless the alien demonstrates that changed circumstances materially affected the alien's eligibility for asylum or extraordinary circumstances delayed filing during the 1-year period, and that the application was filed within a reasonable period of time given the changed or extraordinary circumstances.[173] Even if an alien meets all the criteria for asylum, including establishing past persecution or a well-founded fear of future persecution and any exceptions to late filing, the Secretary or Attorney General can still deny asylum as a matter of discretion.[174]

Aliens who are granted asylum cannot be removed or returned to their country of nationality or last habitual residence, are employment authorized incident to their asylee status, and may be permitted to travel outside of the United States with prior consent from the Secretary.[175] Asylum can be terminated if the alien was not eligible for asylum status at the time of the asylum grant or is otherwise no longer eligible for asylum under the law.[176]

Aliens may include their spouse and children who are physically present in the United States as dependents on their asylum application at the time they file or at any time until a final decision is made on the application.[177] The alien and their dependents are considered asylum applicants, and each applicant may individually file an application for a (c)(8) EAD.

To request asylum, an alien must file Form I-589, Application for Asylum and for Withholding of Removal, with either USCIS or the immigration court (EOIR). Asylum applications are characterized as “affirmative” or “defensive” based on which agency has jurisdiction over the alien's case. Generally, if an alien is physically present in the United States, not detained, and has not been placed in removal proceedings, the alien files the asylum application with USCIS. These applications are known as “affirmative” filings. If DHS places an alien in removal proceedings, the alien files an application for asylum with an Immigration Judge (IJ).[178] These applications are known as “defensive” filings and include aliens the USCIS asylum officer refers to the IJ for de novo review of their asylum claim.[179]

USCIS is responsible for initial adjudication of asylum applications filed by UACs. This is because an asylum application filed by a UAC must be processed according to requirements established in the TVPRA, Public Law 110-457, 122 Stat. 5044, and the settlement agreement in J.O.P. v. U.S. Dept of Homeland Security, 8:19-cv-01944 (D. Md.) (approved Nov. 25, 2024) (J.O.P. Settlement Agreement). The provisions of the TVPRA that apply to UACs took effect on March 23, 2009 and provide USCIS with initial jurisdiction over all asylum applications filed by UACs. Thus, even UACs who have been issued a Notice to Appear in immigration court can have their application for asylum heard by USCIS if they were UACs on the date they first filed for asylum. The TVPRA also provides an opportunity for UACs, who did not previously file for asylum with USCIS and who had a pending claim in immigration court, on appeal to the Board of Immigration Appeals, or in federal court, to have their asylum claim heard and adjudicated by a USCIS Asylum Officer in a non-adversarial setting.[180] Furthermore, under the terms of the J.O.P. Settlement Agreement, USCIS will not rely on any determination by DOJ that an alien is not a UAC.[181] Rather, USCIS exercises initial jurisdiction over the adjudication of the UAC's asylum application and renders its own jurisdictional determination.[182] Therefore, if a UAC's ( printed page 8647) pending asylum application remains pending before USCIS, his or her (c)(8) EAD will not automatically terminate even if his or her asylum application was denied by an IJ, BIA, or a Federal court.

Aliens who present themselves at a U.S. port of entry (air, sea, or land) are generally deemed applicants for admission.[183] INA sec. 235(a)(1), 8 U.S.C. 1225(a)(1). If an immigration officer determines that an alien is inadmissible under section 212(a)(6)(C) or 212(a)(7) of the Act, 8 U.S.C. 1182(a)(6)(C) or 1182(a)(7), for being in possession of false documents, making false statements, or lacking the required travel documentation, the alien may be placed in expedited removal proceedings under section 235(b)(1) of the Act, 8 U.S.C. 1225(b)(1). Expedited removal may also be applied to certain other aliens who have not been admitted or paroled into the United States and who cannot show that they have been continuously physically present in the United States for the two years prior to the date of determination of inadmissibility. INA sec. 235(b)(1)(A)(iii), 8 U.S.C. 1225(b)(1)(A)(iii). Aliens in expedited removal proceedings who indicate an intention to apply for asylum, express a fear of persecution or torture, or a fear of return to their home country are referred to an asylum officer to determine whether the alien has a credible fear of persecution or torture.[184] INA sec. 235(b)(1), 8 U.S.C. 1225(b)(1); 8 CFR 208.30(b); 8 CFR 235.3(b)(4). If an alien is determined to have a credible fear, “the alien shall be detained for further consideration of the application for asylum.” INA sec. 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii).

Asylum applications based initially on a positive credible fear determination are under the jurisdiction of EOIR once a Notice to Appear (NTA) is filed with the court and are considered “defensively filed” applications. Similarly, if an alien has a positive credible fear determination, but is released from detention by U.S. Immigration and Customs Enforcement (ICE), the alien is still considered to be under EOIR jurisdiction once the NTA is filed and must file the application for asylum with the court.

An alien may be authorized for employment in the United States based on the alien's immigration status or other conditions, as established by statute or by regulation. See8 CFR 274a.12. An asylum applicant is not entitled to employment authorization by statute, but Congress granted the Secretary discretion to authorize employment, through regulations, for these aliens while the asylum application is pending adjudication. See INA sec. 208(d)(2), 8 U.S.C. 1158(d)(2). Aliens seeking employment authorization generally must apply for an EAD by filing Form I-765 with USCIS in accordance with the form instructions, along with any prescribed fee. 8 CFR 274a.13(a). The regulations at 8 CFR 208.7 and 274a.12(c)(8) govern employment authorization for asylum applicants.

Under the current statute and regulations, the Secretary cannot grant employment authorization to an asylum applicant until 180 days after the filing of the asylum application. INA sec. 208(d)(2), 8 U.S.C. 1158(d)(2), 8 CFR 208.7(a)(1). This 180-day period is commonly called the “180-day Asylum EAD Clock.” [185] The 180-day Asylum EAD Clock begins to run after USCIS or EOIR, as applicable, accepts the asylum application for processing. 8 CFR 208.7(a)(1). Existing regulations provide that USCIS or EOIR should return an incomplete application to the alien within 30 days of receipt of the application, but if USCIS or EOIR has not returned the incomplete asylum application within that time, the application is automatically deemed complete. 8 CFR 208.3(c), 1208.3(c)(3) (as effective).[186] Once the asylum application is accepted, the alien must wait 150 days before they may file the application for employment authorization. 8 CFR 208.7(a)(1). USCIS has 30 days from the filing date of the EAD application to adjudicate the application. Id. The 180-day Asylum EAD Clock therefore includes the 150-day waiting period for filing the (c)(8) EAD application and the additional 30-day period that USCIS has to adjudicate the EAD application.

Delays requested or caused by the alien stop the 180-day Asylum EAD Clock, and it does not run again until the alien cures the delay or until the next scheduled case event, such as a rescheduled interview or a continued hearing. 8 CFR 208.7(a)(2). For example, if an alien fails to appear for a required biometrics appointment on their asylum application, the 180-day Asylum EAD Clock will stop and not recommence until the alien appears for his or her biometrics appointment. Id. Similarly, if an alien asks to amend or supplement his or her asylum application, fails to provide a competent interpreter at the asylum interview, or reschedules the asylum interview for a later date, all of these actions will stop the 180-day Asylum EAD Clock, and the clock will not restart until the required action is completed.[187] 8 CFR 208.7(a)(2). USCIS will deny an EAD application if the asylum application is still subject to an unresolved alien-caused delay that prevents the alien from accumulating 180 days at the time USCIS adjudicates the initial (c)(8) EAD application.[188] As a result, some asylum applicants may wait longer than 180 days before they can be granted employment authorization.

Under current regulations at 8 CFR 208.7(a)(1), USCIS must adjudicate initial employment authorization applications under the (c)(8) category within 30 days of when the alien files the Form I-765.[189] The 30-day ( printed page 8648) processing timeframe in 8 CFR 208.7(a)(1) was established more than 25 years ago, when the former INS adjudicated EAD applications at local INS offices, but EAD applications are now adjudicated at USCIS Service Centers. As a result of numerous factors, including a massive growth in EAD application volume, the need for ASC appointment scheduling,[190] the identification of more national security and public safety concerns, and an increase in the level and complexity of fraud concerns, USCIS was unable to match the pace of adjudications to the volume of receipts. As result, on May 22, 2015, plaintiffs in Rosario v. USCIS, No. C15-0813JLR (W.D. Wash.), brought a class action in the U.S. District Court for the Western District of Washington to compel USCIS to comply with the 30-day processing timeframe of 8 CFR 208.7(a)(1).[191] On July 26, 2018, the court enjoined USCIS from further failing to adhere to the 30-day processing timeframe for adjudicating EAD applications. As of March 2025, USCIS completed 86.4 percent of initial (c)(8) EAD applications within 30 days and completed 98.3 percent of initial (c)(8) applications within 60 days. However, compliance with the court order places significant strain on already limited agency resources, especially considering that initial (c)(8) EAD applications (except those filed under the special ABC procedures) are free of cost, and USCIS will not be able to continue to sustain this burden in the long-term without adding additional agency resources or negatively impacting processing times for other applications, petitions, and benefit requests, including other EAD categories. Full-time equivalent officer hours allocated to initial (c)(8) EAD applications have increased from approximately 50 to a high-water mark of over 800 in March of 2025 in order to keep pace with the drastic increase in initial (c)(8) EAD application receipts. Given that there was previously no fee for initial (c)(8) EAD applications (except those filed under the special ABC procedures), the costs of intake, adjudication, and customer service and other support functions were historically borne by other benefit requestors who pay fees.

Denial of the asylum application impacts the alien's ability to apply for and retain employment authorization in different ways, depending on when and where the denial occurred.

If the asylum application is denied by an asylum officer or IJ within the 150-day waiting period after applying for asylum, the alien may not apply for employment authorization. 8 CFR 208.7(a)(1). If the application for employment authorization is filed after the 150-day waiting period and the asylum application is denied prior to adjudication of the application for employment authorization, employment authorization will be denied. Id.

If the alien applies for and is granted an EAD based on a pending affirmative asylum application and the asylum application is denied by the asylum officer, the EAD will either terminate on its expiration date or 60 days after the denial of the asylum application, whichever is later. 8 CFR 208.7(b)(1). If the alien receives an EAD and the asylum application is later referred by USCIS to EOIR, employment authorization will remain valid through the expiration date on the EAD. 8 CFR 208.7(b)(2).

If the IJ, BIA, or Federal court denies the asylum application and the alien does not file the appropriate request for administrative or judicial review, employment authorization will expire on the date printed on the EAD. 8 CFR 208.7(b)(2). If the IJ, BIA, or Federal court denies the asylum application and the alien chooses to file the appropriate request for administrative or judicial review, employment authorization will remain valid through the EAD expiration date, and the alien will be eligible to file for a renewal EAD upon its expiration. 8 CFR 208.7(c).

Simultaneously with this rule, DHS is engaging in other rulemaking actions that are in various stages of development. DHS has considered and analyzed these other rules for peripheral, overlapping, or interrelated effects on this rule and has incorporated their effects, if any, into the supporting documentation, policies, and regulatory text for this proposed rule.

In a separate notice of proposed rulemaking (NPRM), DHS is will propose amendments to regulations governing discretionary employment authorization for certain aliens who: have final orders of removal, but are temporarily released from custody on orders of supervision (OSUP); are paroled into the United States temporarily for urgent humanitarian reasons or significant public benefit; or have been granted deferred action. DHS proposes to limit and clarify eligibility to apply for these categories of discretionary employment authorization. DHS further proposes to specify that aliens applying for discretionary employment authorization: (1) who admit committing a violent or dangerous crime even if he or she has never been formally arrested, charged, indicted, or convicted; (2) who have been arrested for, charged with (without disposition), indicted for, or convicted of any criminal acts; or (3) for whom there is evidence of the alien's membership in a gang or terrorist organization, generally do not warrant a favorable exercise of discretion unless there are significant countervailing public interests. DHS notes that this proposed rule will be listed in the publicly available Fall 2025 Unified Agenda of Federal Regulatory and Deregulatory Actions.

DHS considered the possible combined effects of this Asylum EAD Reform NPRM and the Discretionary EAD NPRM. As some of the proposed amendments made in the Asylum EAD Reform NPRM and the Discretionary EAD NPRM generally overlap, the combined effects are generally mitigated by the inclusion of similar amendments between the two proposed rules. While the Asylum EAD Reform NPRM does intersect with the Discretionary EAD NPRM, DHS is using current regulatory text as the basis for changes, as any changes proposed by the Asylum EAD Reform NPRM at this point in the process are just that—proposed. Further, while the Discretionary EAD NPRM will include changes related to all employment authorization under 8 CFR 274a.12(c), it will not include any changes to 8 CFR 274a.12(c)(8). This will allow the Asylum EAD Reform NPRM to fully address (c)(8) issues, and the Asylum EAD Reform NPRM will not make changes to categories addressed in the Discretionary EAD NPRM. DHS acknowledges that, if the Discretionary EAD Final Rule goes into effect prior to the Asylum EAD Reform NPRM, it may ( printed page 8649) be necessary to amend the appropriate regulatory text to reflect the corresponding changes in the Discretionary EAD Final Rule.

In another separate rulemaking, DHS is proposing to amend DHS regulations governing the use and collection of biometrics by DHS. DHS will propose, among other things, updates to the regulatory definition of biometrics to ensure it captures accepted modalities and to expand the population of individuals required to submit biometrics. As relevant to this Asylum EAD Reform NPRM, which would establish a general biometrics requirement for asylum applicants seeking a (c)(8) EAD, the Biometrics NPRM will propose to require biometrics from all individuals filing for, or associated with, an immigration or naturalization benefit request, other request, or collection of information, unless DHS exempts the requirement DHS is proposing these changes to enhance accurate identity verification and management throughout the immigration lifecycle. The proposed changes would also enhance DHS's ability to identify and deter immigration benefits fraud, and allow DHS to perform more comprehensive biometrics-based background checks in connection with immigration benefits requests. Aliens who submit biometrics would face costs associated with time and travel. These are detailed in the economic analysis, but DHS does not estimate the total monetized impact. DHS notes that this proposed rule will be listed in the publicly available Fall 2025 Unified Agenda of Federal Regulatory and Deregulatory Actions.

DHS considered the possible combined effects of Asylum EAD Reform NPRM and the Biometrics NPRM. As at least one of the amendments made in the Asylum EAD Reform NPRM and the Biometrics NPRM generally overlap, the combined effects are generally mitigated by the inclusion of a similar amendment between the two proposed rules. Specifically, DHS is proposing to require biometrics for all (c)(8) EAD applicants in both the Asylum EAD NPRM and the Biometrics NPRM.

The IIRIRA amended the Act to state that any asylum procedures established under section 208(d)(1) of the Act, 8 U.S.C. 1158(d)(1), “shall provide that . . . , in the absence of exceptional circumstances, final administrative adjudication of [an] asylum application . . . shall be completed within 180 days after the date an application is filed.” [192] In 1996, Congress decided to pursue completion of first-instance asylum application decisions within 180 days of filing. Both Congress and the administration at that time provided significant resources to accomplish that processing goal.[193] After the statutory and regulatory changes of 1994 and 1996, new asylum filings decreased from their peak of 154,464 in FY 1995 to 32,711 in FY 1999.[194] As a result of both the reforms and the increase in resources, the asylum system moved closer to accomplishing both protection and benefit integrity, and closer to aligning with the original intent behind the asylum process as a whole.[195] 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 a decision on the asylum application.

Yet again, DHS again finds the asylum system to be under-resourced and overwhelmed with asylum applications, and consequently an easy target for many driven by the opportunity to receive employment authorization by filing a frivolous, fraudulent, or otherwise meritless asylum application.[196] In recent years, USCIS has been overwhelmed by both affirmative asylum receipts and credible fear screenings, leading to an increase in the backlog. In 2022, USCIS received 247,790 affirmative asylum receipts, and in 2023 received 464,398 affirmative asylum receipts, nearly double the 2022 receipts.[197] Over recent years, the credible fear caseload has also significantly increased, going from a low of 5,216 cases in 2009 to 103,295 cases in 2019.[198] In 2022, USCIS completed 54,092 credible fear cases.[199] In 2023, that number almost tripled to 150,431 credible fear receipts.[200] In 2023, with the expiration of Title 42, USCIS allocated more than 90% of its asylum officers to process an expected surge of credible fear cases.[201] This left only about 3 percent of asylum officers to adjudicate affirmative asylum cases, thus allowing the backlog to continue to ( printed page 8650) grow.[202] Similar to the affirmative asylum program, EOIR also more than tripled their asylum application receipts, going from 265,632 in FY 2022 to 905,632 in FY 2024.[203] While the average processing time for an affirmative asylum case completed in FY 2024 was 1,287 days, it is important to note this includes the universe of affirmative asylum cases, including backlog, LIFO, and any case prioritized for adjudication, such as Afghan Operation Allies Welcome (OAW),[204] mandamus, and expedited cases. In FY 2025 Q1, new affirmative asylum applicants could expect processing to take 765.75 months, or more than 63 years; and for new filers in FY 2025 Q2, USCIS expects processing to take approximately 562.25 months, or more than 46 years.[205] DHS believes the current volume and processing times of asylum applications reflects similar dynamics as the pre-reform filings, and the effect of the prior reform supports the deduction that there are many frivolous, fraudulent, or otherwise meritless asylum application filings that are filed solely for the purposes of obtaining an EAD. The asylum system is again in need of a reform that decouples employment authorization from the filing of an asylum application. However, the situation has now turned catastrophic and requires novel solutions that meet the severity of the problem.

If finalized, DHS would pause the acceptance of initial (c)(8) EAD applications when the average processing time [206] for affirmative asylum applications over a consecutive period of 90 days adjudication exceeds 180 days.[207] Acceptance of initial (c)(8) EAD applications would resume when the average processing time for affirmative asylum adjudications over a consecutive period of 90 days is less than or equal to 180 days. The USCIS Director's determination to pause or restart acceptance of (c)(8) EAD applications is not discretionary, and that determination would be directly tethered to the processing times of all affirmative asylum applications over the previous 90-day period. DHS acknowledges that the pausing of acceptance of initial (c)(8) EAD applications will create a potentially significant hardship for asylum applicants. Depending on asylum receipts moving forward, which will likely decrease if this rule is finalized as proposed but will also continue to be subject to change due to a variety of other factors, the initial pause may last a significant amount of time. The pause on EAD application acceptances and processing may last from 14 to 173 years, or longer. For example, without factoring in any of the other proposed changes in this rule and how they would impact adjudications, if receipts decrease by 80 percent, as they did following the 1994 regulatory reforms, it could take USCIS as long as 14 years to reach a 180-day processing time.[208] If, instead, receipts decrease by 50 percent, it could take USCIS as long as 173 years to reach a 180-day processing time. 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.[209] USCIS recognizes that the effect of this pause would be to restrict access to pending asylum application-based employment authorization for new applicants for an extended period, with the duration of the pause determined by the future decrease in asylum application receipts. While this is a significant change in access to pending asylum application-based employment authorization, DHS believes it is necessary to exercise its statutory discretion to implement these changes to achieve its goals of enhancing benefit integrity, protecting national security, and reducing resource strains.

As discussed in several places earlier in this rule, DHS is confronted with a similar situation to the INS in the early 1990s. The INS responded with certain regulatory reforms that succeeded in curtailing meritless claims and delivering fair and timely decisions on asylum cases.[210] In the wake of those asylum reforms, new asylum filings actually decreased from their then-peak of 149,566 in FY 1995 to just 30,261 in FY 1999, a decrease of nearly 80 percent in only five FYs.[211] At the same time, the approval rate significantly increased, from 15 percent of cases adjudicated in FY 1993 to 38 percent in FY 1999.[212] Consequently, INS's reforms met the stated goals of that rulemaking, preventing aliens from applying for asylum primarily as a means to obtain employment authorization, while simultaneously enabling the INS to more promptly grant asylum—and provide work authorization—to those who merit this relief”.[213] Because the proposals in this rulemaking are designed to have a similar effect to those reforms implemented by the INS in 1994, DHS expects this rulemaking will eventually achieve similar results to those achieved by the INS.

As detailed above, DHS is primarily attempting to resolve the issues surrounding the asylum backlog but is having difficulty even reaching those ( printed page 8651) cases due to many operational concerns and competing adjudications priorities. DHS can circumstantially establish that these proposed reforms would help DHS achieve its stated goals—which are the same as the INS's goals in 1994. For purposes of a hypothetical, assuming DHS publishes a final rule aligned with the proposed rule here and achieves similar results to what the INS achieved in 1994—a nearly 80 percent reduction in asylum applications in only five FYs—DHS could then reallocate asylum resources and more successfully tackle the looming backlog. DHS could also move its EAD adjudicatory resources to support timely adjudication of initial (c)(8) EAD applications as well as other EAD application categories, which in turn reduces processing times for EAD applications across the board. Once (c)(8) EAD receipts decrease, USCIS could comfortably surge resources to the Asylum Division for adjudications support functions (with appropriate cross training) or clerical and administrative functions, both of which have simply not been possible with the current state of operations necessary to maintain Rosario compliance.

For example, in FY2024, the last full year of data available, DHS received 422,457 asylum applications.[214] Assuming for a moment DHS can replicate INS's results with this rule, achieving an 80% reduction in asylum filings, then DHS new asylum filings would drop closer to 84,491 (20% of 422,457). At the same time, using staffing levels from FY2024, DHS approved 17,175, administratively closed 107,007, and denied or referred 5,709—for a total of 129,891 final decisions and administrative closures on pending asylum applications.[215] If all other variables remained constant and the impacts of this rulemaking yielded a similar result as the INS's 1994 rulemaking, then at FY2024 staffing levels DHS would be adjudicating 153% of the projected new asylum filing receipt volumes.

Looking at FY2025 data (through May 22, 2025) as another example, an even better result is reached. DHS received 331,883 asylum applications this year (YTD).[216] Again, assuming for a moment DHS can replicate INS's past results with this current rule, achieving an 80% reduction in asylum filings, then DHS new asylum filings would drop closer to 66,376 (20% of 331,883). At current staffing levels, in FY2025 DHS approved 8,667, administratively closed 159,530, and denied or referred 11,872—for a total of 180,069 final decisions on pending asylum applications.[217] Looking at partial FY2025 data, if all other variables remained constant and the impacts of this rulemaking yielded a similar result as the INS's 1994 rulemaking, then at current staffing DHS would be adjudicating 240% of the projected new asylum filing receipt volumes.

DHS notes that certain variables would not remain constant with this hypothetical. Notably, as both new asylum filing receipt and asylum backlog volumes decline, initial and renewal (c)(8) EADs filings organically would decline as well. As asylum filing receipts decrease as a result of the proposed regulatory changes, asylum officer resources will be able to devote more time to the USCIS asylum application backlog. At the same time, the reduction in (c)(8) EAD filings will allow USCIS to more efficiently allocate EAD adjudications staff across other EAD filing categories in an effort to reduce overall processing times across the board. DHS also notes that the then-peak of new asylum filings in FY1995 (149,566) has been surpassed in all four of the last FYs (FY2022 247,790; FY2023 464,398; FY2024 422,457; and FY2025 331,883 (through May 22, 2025)),[218] so while the assumptions in this hypothetical are feasible, the sheer volume of new asylum filings may slow the rate at which the INS's results are reached by DHS ( e.g., it may take 8 or 10 years instead of 5). However, DHS is confident that if these proposed changes are finalized, DHS will achieve a result similar to the INS after its 1994 regulatory reforms.

Based on the data supporting this rule and the justification described here, DHS proposes to codify in regulation that it will pause acceptance of initial (c)(8) EAD applications from asylum applicants when the processing times of adjudications of affirmative asylum applications exceeds 180 days for a period of 90 consecutive days, until the USCIS processing time for adjudicating affirmative asylum applications is less than or equal to 180 days for a period of 90 consecutive days.[219] After USCIS has resumed accepting initial employment authorization applications from asylum applicants, if the average processing times of adjudications of affirmative asylum applications again exceeds 180 days for a period of 90 consecutive days, USCIS would again pause the acceptance of (c)(8) EAD applications. The determinations as to whether initial employment authorization applications for asylum applicants are accepted or not would be made by the Director of USCIS, based on the USCIS processing times only and not subject to discretion. The agency would announce on the USCIS website when it will accept and when it pauses acceptance of initial (c)(8) EAD applications. The announcement would also be accompanied by the publication of the processing times, which support the determination made by the Director of USCIS. DHS believes that a website update is the most expeditious and accessible mode of notifying the public of its operational posture. DHS also believes that a critical part of this process will be to provide the processing times, which form the basis for the determinations made by the Director of USCIS. Therefore, DHS proposes to publish the quarterly processing times. It should be highlighted that any pause of initial employment authorization applications from asylum applicants would not apply to any renewal (c)(8) EAD applications, which would continue to be accepted and adjudicated by USCIS in the event the processing time of adjudications of affirmative asylum applications exceeds 180 days for a period of 90 consecutive days. DHS decided on a 90-day evaluation period, as it correlates with the current compilation of processing times and other statistics performed on a quarterly basis by DHS experts.

In addition, as a result of this change and the 365-day waiting period described later in this document, moving forward, fewer asylum applicants will receive employment authorization while their applications are pending. Only aliens whose asylum applications are pending beyond 365 days while the average asylum application processing time remains at or below 180 days will be eligible to file for an initial (c)(8). EAD. Just as the INS did in 1994, DHS has dutifully balanced this hardship against the need for a functioning asylum system and the need to deter aliens filing frivolous, fraudulent, or otherwise meritless claims solely motivated by the opportunity to obtain an employment authorization document. DHS believes that the asylum system is currently over-burdened and overwhelmed by asylum applications, including the frivolous, fraudulent, or otherwise by ( printed page 8652) meritless asylum applications filed by aliens who are seeking to obtain employment authorization. DHS understands that asylum applicants may be fleeing past persecution or may have a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA sec. 208(b)(1), 8 U.S.C. 1158(b)(1). However, there is nothing in the statute that requires an EAD for aliens applying for asylum, rather this is a purely discretionary EAD category. The intention behind the asylum system is to provide a timely response to an asylum claim. Thereafter, the aim is to provide employment authorizations to aliens ultimately eligible for asylum, not guarantee employment authorization to all aliens who seek asylum, but may ultimately not be eligible. By pausing the acceptance of initial employment authorization applications, which has now exceeded 150,000 applications per month,[220] aliens will have less incentive to file frivolous, fraudulent, or otherwise meritless asylum applications for the purposes of obtaining employment authorization, and DHS expects that asylum filings will therefore decrease, as they did in the years following IIRIRA reform. With a decline in frivolous, fraudulent, or otherwise meritless asylum applications USCIS would have greater bandwidth to focus adjudicative efforts on the existing asylum backlog by reallocating more available asylum officers to backlog cases and work toward providing timely and fair decisions. The accompanying decline in (c)(8) EAD applications would also allow USCIS to reallocate EAD staffing resources to other EAD application categories and decrease EAD processing times across the board.

USCIS recognizes that the initial pause on acceptance of new initial (c)(8) EAD applications may be lengthy as USCIS works to adjudicate the substantial backlog of pending asylum cases that are already pending before USCIS. However, USCIS believes this pause will result in a decrease in new asylum receipts comparable to the 80% decrease that was seen as a result of the INS's 1994 rulemaking. USCIS notes that the absolute number of aliens granted asylum remained relatively consistent following that rulemaking, indicating that changes in access to employment authorization did not deter aliens with meritorious asylum applications from filing. USCIS recognizes that in this proposed rule, the pause of on EAD application acceptances will likely be significantly lengthier than the 180-day waiting period implemented through the 1994 regulation and therefore there may be some aliens with potentially meritorious filings who are deterred from filing. In conjunction with the proposed regulatory changes, USCIS intends to generally maintain its LIFO processing to asylum adjudications and believes that the combination of vastly decreased receipts and the significant increase in asylum officers over recent years will allow USCIS to work through the backlog and get to a place where the agency is adjudicating new asylum applications within the 180-day time period after this rule takes effect.

USCIS notes this represents a return to the intended functioning of these sections of the INA and regulations. Employment authorization due to a pending asylum application is intended by the statute and existing regulation to be exceptional and unusual. By linking the ability to receive a new applications for (c)(8) EAD to the pending affirmative asylum caseload, USCIS intends to ensure that this section of the INA functions as it was intended to and eliminates the ability for aliens filing frivolous, fraudulent, or meritless asylum applications to create a vicious cycle by overwhelming the asylum system and then profiting from doing so at the expense of meritorious asylum applicants and the American people.

As discussed previously, there are many factors that have contributed to the backlog of asylum cases that leads to the abuse of the asylum system for employment authorization. Among those has been the recent expansive use of deferred action, parole, and temporary protected status (TPS). In FY 2020, USCIS data show only 104 aliens with deferred action who subsequently filed a Form I-589; by FY 2025 (YTD) that number rose to 1,158—a 1,013% increase.[221] In FY 2020, USCIS data show only 758 aliens with parole who subsequently filed a Form I-589; by FY 2025 (YTD) that number rose to 156,242—a 20,512% increase.[222] In FY 2020, USCIS data show only 66 aliens with TPS who subsequently filed a Form I-589; by FY 2025 (YTD) that number rose to 43,512—a 65,827% increase.[223] These programs, quite simply, were not intended to provide permanent immigration status to aliens. The expansive use of these programs has not only further taxed the already strained asylum system, but also increased the presence of illegal aliens and other aliens with only temporary status and low likelihood of obtaining permanent status in the United States. Filing an application for asylum is one such way an alien in this position may seek to remain in the United States.

Over the span of decades, DHS has exercised discretionary authority to parole, grant deferred action, or exercise temporary parole authority expansively to create categorical parole programs.[224] The INA confers upon the Secretary the narrow discretionary authority to parole applicants for admission into the United States “temporarily under such conditions as [DHS] may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” [225] While those parole ( printed page 8653) programs were terminated, many aliens are still in the United States, often without a pathway to lawful residence in the United States. Parole grants in recent years have been extremely large, with 795,561 parole grants in FY 2022 and 1,340,002 parole grants in FY 2023.[226]

In addition, the use of deferred action has expanded significantly. Deferred action is a form of discretion in which DHS chooses to not seek an alien's removal from the United States, though the alien lacks lawful status or is otherwise removable from the United States. Unlike parole, deferred action was not created by statute and is not specifically defined in the INA. The decision not to take an enforcement action is within the discretion of the agency.[227] Deferred action was never meant to supplant the current legal immigration process or provide long-term relief solely to allow an inadmissible, removable, or otherwise ineligible alien to remain in the United States until he or she can qualify for a legal status.[228] The largest categorical deferred action program is Deferred Action for Childhood Arrivals (DACA), and as of September 2024 approximately 538,000 [229] aliens were living in the United States with DACA.[230]

TPS is yet another program that does not lead to long-term legal status in the United States. Under section 244 of the Immigration and Nationality Act (INA), 8 U.S.C. 1254a, the Secretary of Homeland Security may designate a foreign state (or part thereof) for TPS after consulting with appropriate agencies of the U.S. Government and determining that there are specified conditions present in that foreign state or part of a foreign state, such as ongoing armed conflict that would pose a serious threat to the safety of retuning aliens.[231] The Secretary may then grant TPS to eligible nationals of that foreign state or eligible aliens having no nationality who last habitually resided in that state.[232] In addition, DHS has at times re-designated countries for TPS and allowed aliens who entered the United States after the initial designation of TPS to be newly eligible for TPS.[233] In Calendar Year 2024 there were approximately 1,396,586 TPS beneficiaries.[234]

The expansive use of these three programs over the years has created a very large population of illegal aliens that do not have pathways to permanent residence in the United States outside of seeking asylum. The expansive use of these programs has further incentivized aliens to file frivolous, fraudulent, or otherwise meritless asylum applications to gain employment authorization.[235] While each of these programs provides access for employment authorization, it is for a specific and time-limited period. Asylum remains an attractive option for aliens to secure employment authorization for an extended period of time, despite lacking a basis for asylum, due to the enormous backlog.

With this background, DHS is proposing in this rule to extend the time period an asylum applicant must wait before he or she is eligible to be granted employment authorization based on a pending asylum application from 180 days to 365 calendar days. See8 CFR 208.7(a)(1). DHS also proposes to eliminate the separate waiting periods for eligibility to receive an EAD, so that aliens are eligible to apply and be granted employment authorization at the same time. Currently, an asylum applicant may file for employment authorization once their application for asylum has been pending for 150 days and may receive an EAD after their application for asylum has been pending for 180 days, excluding any alien-caused delays. 8 CFR 208.7(a)(1). Under the current model, both USCIS and the alien must track two timeframes: the 150-day waiting period, and the 180-day Asylum EAD Clock. The clock calculation is subject to starts and stops based on delays, depending on whether the delay is an agency-caused delay or an alien-caused delay. 8 CFR 208.7(a)(2). As described in section D.3.a of this preamble, this system is complicated and overly burdensome on both the alien and USCIS. Thus, DHS proposes to codify in regulation that it will merge the waiting period to apply and the waiting period to be eligible into one, straight-forward timeline: 365 calendar days.[236]

Under the proposed rule, USCIS will no longer have to account for alien-caused delays in calculating the 180-day Asylum EAD Clock, but will instead simply calculate 365 calendar days from the asylum application receipt date to determine when an alien can request employment authorization. The INS previously chose the 180-day waiting period to deter aliens who are meritless asylum seekers from filing frivolous, fraudulent, or meritless claims to obtain employment authorization. 59 FR 62284 (Dec. 5, 1994). As the 180-day waiting period is no longer providing a deterrence, DHS proposes to codify in regulation that it will change the time ( printed page 8654) period to a 365-day waiting period. USCIS notes that the current regulations allow the applicant to submit the application at 150 days and then builds in the 30-day processing timeframe buffer to add up to 180 days; but USCIS proposes now to eliminate the processing time buffer, so that that aliens may not apply until 365 days after their asylum application is received. Coupled with the 180-day adjudication timeframe, these changes could increase the total waiting period for an EAD to 545 days. By choosing a waiting period that exceeds the target 180-day processing time for asylum applications, DHS hopes to deter frivolous, fraudulent, or meritless applications and, in turn, be able to approve meritorious asylum applications more quickly, ensuring only those with approved asylum petitions are able to work within 365 calendar days.

Elimination of the 180-day Asylum EAD Clock would resolve some of the difficulties adjudicators face in processing (c)(8) EAD applications. The current 180-day Asylum EAD Clock requires complex and time-consuming tracking of clock starts and stops for each alien's case and coordination with EOIR for defensively filed cases that are not under USCIS' jurisdiction. See8 CFR 208.7(a)(2). Changing the process from a 180-day clock with starts and stops to a clear 365-calendar-day waiting period would simplify the determination of the date of the alien's employment authorization eligibility.

Moving from the 180-day Asylum EAD Clock to a straightforward 365 calendar-day waiting period would also eliminate the need to use finite government resources for the purpose of calculating clock starts and stops, and for providing customer service support for aliens who have questions about their clock status, including potential miscalculations or questions about clock stoppages. Under this proposed rule, DHS would deny EAD applications filed before the 365 calendar-day waiting period has elapsed. Once accepted, DHS would be able to adjudicate the request on the proposed substantive eligibility requirements without expending resources on clock calculations.

DHS believes increasing the waiting period before an asylum applicant may obtain employment authorization will also decrease the incentives for aliens who do not have meritorious asylum claims to exploit the system by filing frivolous, fraudulent, or meritless claims in order to obtain employment authorization. Currently, an asylum applicant may file for employment authorization once their application for asylum has been pending for 150 days and may receive an EAD after their application for asylum has been pending for 180 days, excluding any alien-caused delays. 8 CFR 208.7(a)(1). As the USCIS affirmative asylum pending caseload is at approximately 1.45 million and the EOIR asylum application pending caseload is over 2.37 million,[237] there is a significant incentive for certain aliens to exploit the immigration system and file for asylum, even if their cases will ultimately be denied on the merits, as a means to obtain employment authorization for the years' long period that their application is pending.[238] In order to combat the rising backlog of affirmative asylum cases and the significant length of time aliens wait before adjudication and comply with statutory interview requirements,[239] legacy INS implemented the last in, first out (LIFO) asylum adjudication scheduling priorities, which aims to deter those who might try to take advantage of the existing backlog in order to obtain employment authorization.[240] Giving priority to recent filings typically allows USCIS to promptly place aliens into removal proceedings if USCIS does not grant the asylum application, which reduces the incentive to for aliens contemplating filing for asylum today solely to obtain employment authorization.[241] LIFO was first established during the asylum reforms of 1995 and used for 20 years until 2014. The end of LIFO in 2014 led to a significant increase in asylum application filings. Subsequently, LIFO was reimplemented in 2018, and USCIS continues to give priority to recent filings today. However, by the time USCIS returned to LIFO scheduling, the backlog had grown by more than 1,750 percent from FY 2014 through FY 2017.[242]

In March 2024, USCIS implemented a second simultaneous scheduling track in addition to LIFO. Under the second track, USCIS assigns some of its asylum officers to complete affirmative asylum applications pending in the backlog, starting with the oldest applications and working forward. This permits some of the oldest pending applications to be completed in chronological order.[243]

USCIS has not been able to reduce the backlog of affirmative asylum applications through scheduling alone, and DHS continues to see large numbers of affirmative asylum application filings, the majority of which are likely to be ultimately unsuccessful, and significant numbers of related employment authorization applications. As described in Section III.C., USCIS has tripled the number of asylum officers in the last decade and implemented numerous other efforts to address the building backlog and integrity concerns. However, in recent years, insufficient staffing,[244] insufficient physical office space,[245] and shifting geopolitical realities, including a fundamental shift in global migration patterns,[246] and the expansive use of parole, deferred action, and TPS, have necessitated the reassignment of asylum officers to other urgent caseloads, such as credible fear and reasonable fear screenings and other border-related workloads. The diversion of asylum officers to other mandatory tasks, along with the surge in litigation seeking to compel immediate action on individual asylum applications, reduced the number of asylum officers available for the processing of non-litigation-related affirmative asylum applications, which drastically decreased the number of affirmative asylum interviews scheduled and applications adjudicated.[247] Because of these recent ( printed page 8655) challenges to an already overwhelmed system and the fact that the processing order, alone, is not sufficient to address the massive number of asylum filings, additional measures must be implemented to deter meritless asylum filings. DHS believes that introducing a 365 calendar-day waiting period will result in a decreased number of asylum filings. The combined effect of the extended waiting-period for employment authorization and USCIS' prioritization of recently-filed asylum applications should drive the number of meritless asylum filings down and allow USCIS to dedicate more adjudicative resources to backlog cases.

DHS proposes to codify in regulation changes to the filing requirements for asylum applications to streamline the intake, processing, and adjudication of cases pending before USCIS. The proposed 8 CFR 208.3(c)(3) has been updated to conform its current process for determining when an asylum application is received and complete to the general rules governing all other immigration benefits under 8 CFR 103.2. Currently, 8 CFR 208.3(c)(3) states that an asylum application is incomplete if it does not include a response to each question on the Form I-589, is unsigned, or is unaccompanied by the required materials specified in 8 CFR 208.3(a)(1) ( i.e., the Form I-589, supporting evidence, and additional copies of the Form I-589 for each dependent family member). Further, the current regulation states that an incomplete application will not commence the EAD clock and that USCIS will return it to the alien within 30 days. 8 CFR 208.3(c)(3). However, if USCIS fails to return an incomplete application within 30 days, the application will automatically be deemed complete and accepted for adjudication. Id.

In order to facilitate the alignment of affirmative asylum applications with the general requirements for filing benefit requests with USCIS, the proposed rule specifies, in part, that an asylum application filed with USCIS must be properly filed in accordance with 8 CFR 103.2 and the form instructions and that USCIS will record the receipt date of the application in accordance with 8 CFR 103.2(a)(7). The proposed rule also specifies that the receipt date will begin the waiting period for an EAD. Similar to the movement from the 180-day Asylum EAD Clock to the 365-calendar day wait, this change eliminates another decision point for the agency in order to preserve finite government resources. Rather than have the commencement of the waiting period be another question needing adjudication, this change would automate it.

The regulation as proposed states that an application that is not filed in accordance with 8 CFR 103.2 and the form instructions would be deemed incomplete, then subsequently rejected and returned to the applicant within 30 days. 8 CFR 103.2 and form instructions for Form I-589, Application for Asylum and for Withholding of Removal clearly explain the requirements for a complete form. 8 CFR 103.2 requires that every form submitted to DHS be in accordance with the form instructions, and the instructions for Form I-589, Application for Asylum and for Withholding of Removal require that the alien answer all questions on the form. Additionally, 8 CFR 103.2 and the form instructions require a signature on the form. 8 CFR 103.2 clarifies that this signature may be the alien, or the alien's parent or legal guardian if the alien is under 14 years of age or is unable to sign due to mental incompetence. Finally, Form I-589 form instructions require that the alien submit “reasonably available corroborative evidence” to support the claim and other required materials, including a copy of identity documents. USCIS is currently under an obligation to return incomplete asylum applications to the alien within 30 days of the receipt of the application. Since 2023, USCIS has rejected 9.44% of submitted asylum applications solely due to a form deficiency, meaning that a required field on the form was not completed.[248] Over the same time, USCIS has rejected an additional 11% of submitted applications for having multiple defects, one of which included a missing required field.[249] This rule's added clarity that asylum applicants must properly fill out their forms would decrease the percentage of rejected asylum applications and increase the quality of asylum applications received by the agency.

Currently, if USCIS fails to return an incomplete application within 30 days, the application will automatically be deemed complete and accepted for adjudication. This current requirement is burdensome on USCIS because it places an adjudication obligation on USCIS where an alien files an incomplete application. The 30-day provision is also inconsistent with how all other applications and petitions for immigration benefits are treated, and it creates an arbitrary circumstance for treating a potentially incomplete asylum application as complete. In fact, Form I-589 is the only USCIS form that the agency is required to accept, even if it is incomplete, simply because more than 30 days have passed since receipt. This disparity in treatment creates an opportunity for frivolous, fraudulent, or otherwise meritless applications to exploit the asylum process from the start and add to the massive affirmative asylum backlog. Additionally, asylum officers must obtain the omitted information during asylum interviews expending scarce resources on basic information gathering simply because an alien chose not to provide such information at the time of filing. Therefore, the proposed regulations would treat asylum applications like all other applications received and adjudicated by USCIS, meaning that after the effective date of this rule incomplete asylum applications would not be deemed complete even if USCIS does not return a rejected application within 30 days of receipt. An alien should consider the filing date on their receipt notice as beginning the 365-day waiting period. If an application is subsequently rejected as incomplete and returned to the applicant, the 365-day waiting period will start over when the application is resubmitted, accepted, and receipted.

Finally, as discussed earlier, this regulation proposes to substitute the 180-day Asylum EAD Clock with a straightforward 365 calendar-day waiting period. Thus, provisions regarding alien-caused delays for the purposes of the 180-day Asylum EAD Clock would also be stricken.

Currently, USCIS is required to adjudicate initial (c)(8) employment authorization applications within 30 days from when the applicant files the Form I-765. 8 CFR 208.7(a)(1). This processing timeframe was established more than 30 years ago (59 FR at 62299), at a time when affirmative asylum and employment authorization application receipts were significantly lower, biometrics were collected under a different process, screening and vetting between different federal agencies was ( printed page 8656) less complex, and the pending affirmative asylum caseload was nowhere near its current number of close to 1.45 million pending asylum cases. At the time the 30-day processing timeframe was implemented, the former INS adjudicated EAD applications at local INS offices. Now, with the explosive growth of applications, EAD applications are processed by USCIS service centers. Another complicating factor in the processing of applications for employment authorization is the increased concern for fraud and national security threats that require more thorough and complex vetting.

As discussed above in Section III.D, in 2015, as a result of the massive growth in applications and increased wait times in processing, plaintiffs in Rosario v. USCIS brought a class action to compel USCIS to comply with the 30-day processing timeframe required under 8 CFR 208.7(a)(1).[250] On July 26, 2018, the district court enjoined USCIS from further failing to adhere to the 30-day processing timeframe for adjudicating (c)(8) EAD applications.[251] Since the Rosario court order, USCIS has redistributed its adjudicative resources to comply with the 30-day processing requirement. Furthermore, USCIS is required to utilize overtime in order to even come close to compliance with the 30-day processing time, offering cross-training to officers working other benefit types, reassigning officers from other benefit types such as TPS and EAD renewals, and assigning officers to work (c)(8) initials as a part-time assignment in addition to their normal caseloads. There have been continued efforts to comply with the court order, but this time and resource burden has placed significant strain on already limited agency resources. Applications for initial (c)(8) EADs were until recently free to file, and while this was offset by increased fees for other services,[252] this immense (c)(8) EAD 30-day processing burden still fell directly to the agency. The full-time equivalent hours needed to maintain substantial compliance with the 30-day processing time has grown by over 16 times since the Rosario settlement. By way of comparison, at the time of the Rosario settlement the adjudication of monthly incoming (c)(8) initial applications required the equivalent of 50 fulltime employees to maintain compliance with incoming receipts. By March 2025, the equivalent of more than 800 fulltime employee equivalents was required to maintain compliance due to the significant increase of incoming monthly receipts. This massive increase creates an obvious strain on finite operational resources and necessitates cross-training, utilizing overtime, and pulling resources from other workloads in the increasingly arduous burden to attempt to maintain substantial compliance with the 30-day processing requirement. This is equivalent to approximately 20 percent of all immigration services officers. By extending the 30-day processing timeframe to 180-days, these resources could be reallocated, potentially reducing delays in processing other benefit requests. Extension of the 30-day processing timeframe to 180-days for initial applications for employment authorization filed on or after the effective date of the final rule would increase agency flexibility in allocating resources, determining caseload priorities, and implementing new vetting processes as needed.

Due to these resource constraints and vetting needs, DHS has considered changing its processing timeframes for (c)(8)-based employment authorization applications and is now proposing to extend the processing timeframe for initial (c)(8) EAD applications from 30 to 180 days to allow for adequate review time. It should be noted that while DHS adjudicates employment authorization applications for dozens of EAD categories, the (c)(8) employment authorization category is the only category with an adjudication clock; unfortunately, the (c)(8) category is the highest volume EAD category. In fact, in FY 2025 Q1, USCIS received 387,015 applications for employment authorization based on a pending asylum application.[253] The second closest category for incoming receipts in FY 2025 Q1 was (c)(11), employment authorization for public interest parolees, with 135,274 applications for employment authorization.[254] Based on FY 2025 Q1 data, incoming receipts in the (c)(8) EAD category were more than double that of the next largest volume EAD category. The overwhelming scale of (c)(8) EAD application receipts, coupled with a need for upgraded approaches to process integrity and vetting, warrant an extension of the (c)(8) EAD application processing timeframe. DHS believes that an increase from the 30 days to 180 days for processing will provide EAD adjudicators with adequate time to conduct background checks and thoroughly vet aliens as provided for in this proposed rulemaking. DHS also believes that increasing the processing timeframe to 180 days provides the agency with a significant buffer for potential surges in asylum receipts. Therefore, DHS proposes to codify in regulation that it will extend the processing timeframe from 30 to 180 days for initial employment authorization applications filed on or after the effective date of the final rule.

DHS understands that asylum applicants whose EAD applications were pending prior to the effective date of the final rule may have been relying on the 30-day processing timeframe. Therefore, for initial applications for employment authorization received prior to the effective date of the final rule, DHS would not change that processing timeframe. This would allow USCIS the flexibility to quickly process those applications that were pending prior to the rule's effective date, understanding that these asylum applicants who may have relied upon the 30-day processing time that existed at the time they filed their (c)(8) EAD applications. Maintaining the 30-day processing timeframe for aliens whose applications for employment authorization based on pending asylum applications were pending prior to the effective date of the final rule would also offer those aliens more predictability in the adjudication of their applications.

For initial applications for employment authorization received on or after the effective date of the final rule, DHS would extend the processing timeframe from 30 to 180 days. DHS recognizes the reliance interests of any alien who has filed an asylum application and is waiting the current 150-days to file an application for employment authorization and expecting a decision on his or her (c)(8) EAD application within 30-days and who would be impacted by the changes in this rulemaking, if finalized. Further, DHS understands that the extension of a processing timeframe may create hardship and insecurity for aliens who would prefer to have a shorter deadline ( printed page 8657) by which they can expect the adjudication of their work authorization.

However, DHS has determined that several other considerations outweigh those reliance interests. Considering the enormous size of this pending affirmative asylum caseload, the need to prevent frivolous, fraudulent, or meritless filings and protect the integrity of the immigration system, that this is the only EAD category with a processing timeframe, the substantial amount of finite USCIS resources taken up by this workstream, and the tendency of this workstream to vary in number of receipts significantly over a very short period of time, extension of the processing timeframe is the only feasible change for USCIS. This processing timeframe extension to 180 days will provide USCIS with sufficient time to schedule a biometrics collection, adequately screen and vet, refer to ICE if necessary, and process initial (c)(8) applications for employment authorization. Scheduling biometrics collection and adequate screening and vetting, in addition to referrals to ICE if derogatory information is discovered, takes more than 30 days, and the extension of the processing timeframe to 180 days will allow USCIS to more thoroughly review potential concerns and flag issues that may prohibit an alien from receiving employment authorization. This will reduce opportunities for fraud and protect vital national security and public safety interests by denying those with certain criminal or security concerns from accessing employment authorization, further strengthening the integrity of the immigration system. DHS believes the combination of multiple factors ultimately outweigh the alien's expectation to receive employment authorization within 30 days of applying, which include the need to adjudicate all EAD applications in a timelier manner, requiring reallocation of adjudicatory resources from the (c)(8) applications to other EAD categories, to thoroughly vet aliens applying for employment authorization, to refocus on the initial intention of the asylum process, timely adjudication of an alien's request for asylum, and to prioritize benefit integrity overall. Additionally, USCIS is not bound to a set timeframe for adjudication of EAD applications in other categories, and due to the extremely short turnaround to adjudicate initial (c)(8) EAD applications, the other categories of EAD applications have been deprioritized. Extending the processing timeframe for initial (c)(8) EAD applications will allow USCIS to more equitably distribute resources to process other employment authorization applications and process all EAD applications in a more efficient and timely manner.

The proposed rule requires all applicants for a (c)(8) EAD, including applicants to renew a (c)(8) EAD, to submit biometrics. Currently, DHS requires biometrics from asylum applicants in connection with the asylum application,[255] but has not had a routine biometrics requirement for the (c)(8) EAD application. The continued absence of a routine biometrics requirement will lead to complications and delays in adjudicating the (c)(8) EAD application given the requirement for the agency to identify aliens for aggravated felonies, along with the additional proposed eligibility requirements discussed later in this document.

To support the enhanced eligibility requirements that would be added under this rule, the proposed provision at 8 CFR 208.7(a)(1)(i) requires all applicants for a (c)(8) EAD to submit biometrics at a date and time to be scheduled by USCIS. Consistent with its current practices for applications and petitions with an associated biometrics requirement, USCIS would issue a notice informing the (c)(8) EAD applicant of the place and time of their ASC appointment.

For the (c)(8) population itself, the biometrics requirement would resolve program integrity gaps for both the affirmative and defensive-based asylum pathways. The (c)(8) employment authorization category has a specific aggravated felony conviction bar under 8 CFR 208.7(a)(1). While the Form I-589 on which the (c)(8) eligibility is reliant does have a biometrics requirement that provides an avenue for criminal history check results to be obtained and reviewed in order to apply the aggravated felony conviction bar, the asylum EAD filing and approval clock requirements introduce unintended disruptions to the availability of this information. For both affirmative and defensive applicants, unintended delays in scheduling biometrics appointments for the Form I-589 frequently result in the alien accruing 150 and 180-days before appearing at an Applicant Support Center. This results in the (c)(8) application being adjudicated without biometric-based criminal history check results and the intended application of the aggravated felony conviction bar. In FY2024 the average amount of time between Form I-589 filing and completed biometrics collection was 96 days; in FY 2025 (YTD through July 30, 2025) the average was 126 days.[256] Operationally this means some cases would be above those averages, other cases would be lower. In general, however, Form I-589 is auto expedited when scheduling ASC appointments; I-589s receive the first appointment available. As with any USCIS form subject to biometrics collection, aliens can self-reschedule their I-589 biometrics appointment twice on USCIS' website. USCIS accepts reschedule requests via website, contact center, or by contacting their local office; but each asylum office has their own rescheduling policy. Further, for defensive asylum applicants, the application of the aggravated felony conviction bar and availability of biometric-based criminal history check results is dependent on EOIR courts applying the clock stop codes to document the alien's attendance at biometric appointments. For certain defensive applicants, they do not attend an ASC appointment, fingerprint results are not generated, but the clock accrual requirements are met and the I-589 remains pending before EOIR. At present, without a (c)(8) biometrics requirement, these cases must be decided without the benefit of biometric-based criminal history check results and an incomplete background check assessment for the aggravated felony conviction bar.

The new routine biometrics requirement will also benefit the U.S. government by enabling DHS to know with greater certainty the identity of aliens requesting EADs in connection with an asylum application and allowing USCIS to detect any identity or fraud issues that may have occurred between the 365-days when the asylum application was filed and when the (c)(8) EAD can be filed. The biometrics requirement also will allow DHS to conduct criminal history background checks for public safety and national security. USCIS will use the alien's biometrics to securely produce the EAD and properly vet the alien's criminal history to determine if the alien warrants a favorable exercise of discretion. ( printed page 8658)

As discussed elsewhere in this proposed rule, a (c)(8) EAD is not an entitlement but is provided by the authority and within the discretion of the Secretary. INA sec. 208(d)(2), 8 U.S.C. 1158(d)(2). Since the (c)(8) EAD is explicitly tied to an application for asylum, DHS proposes to codify in regulation that it will introduce additional eligibility requirements for a (c)(8) EAD benefit that mirror many baseline eligibility requirements for asylum, including the 1-year filing deadline, criminal bars, and illegal entry such that those who are ineligible for asylum are also rendered ineligible for an EAD.

These additional eligibility requirements are a departure from the policy expressed in the 1994 asylum NPRM, which states that “[t]he INS will adjudicate these applications for employment authorization within 30 days of receipt, regardless of the merits of the underlying asylum claim.” 59 FR at 14780. In that NPRM, the INS determined that decoupling the asylum application from the application for employment authorization would discourage applicants from filing meritless asylum applications solely to obtain employment authorization. At that time, the INS believed that all applicants would have work authorization after 180 days unless their asylum claims were denied. The INS also believed that delaying pending asylum applicants' ability to apply for employment authorization would allow the agency to gain better control over growing backlogs and processing times. Now, DHS has determined that recoupling these applications by implementing stronger eligibility requirements is necessary to achieve those same results. The departure from the 1994 NPRM is necessary and appropriate for multiple reasons: the huge pending affirmative asylum caseload of 1.45 million, the sheer scope and complexity of the frivolous, fraudulent, and meritless asylum filings has increased, and the continually growing number of (c)(8) EAD applications that currently unduly burdens USCIS operations. As discussed thoroughly in the overview of reform efforts above, DHS believes that the high number of asylum applications and corresponding (c)(8) EAD applications is made up, in part, of frivolous, fraudulent, or otherwise meritless filings. Thus, DHS believes that introducing certain eligibility requirements will help curb filings of meritless asylum applications and allow USCIS to better address current pending applications in a timely and orderly manner, and—most significantly—will only limit access to EADs for aliens who would not ultimately be eligible for asylum.

Finally, DHS acknowledges that requiring EAD adjudicators to consider new eligibility requirements that are also analyzed in the asylum interview will likely increase the time needed to process (c)(8) employment authorization applications and could be viewed as contradictory to stated efficiency goals. However, DHS expects that implementing these new eligibility requirements will help the department achieve the desired effect of more efficiently identifying and adjudicating meritless cases and national security or public safety concerns. In the long run, achieving these goals will also help DHS increase efficiency in adjudications.

DHS proposes to codify in regulation that it will generally deny requests for (c)(8) EAD applications by aliens who have not demonstrated that they filed their asylum application in accordance with the 1-year filing deadline, as described in 8 CFR 208.4(a)(2).

With the passage of IIRIRA, Congress added three categorical statutory bars to applying for asylum. Public Law 104-208, div. C, sec. 604(a), 110 Stat. 3009, 3009-691; INA sec. 208(a)(2), 8 U.S.C. 1158(a)(2). Aliens who failed to apply for asylum within 1 year of arriving in the United States are subject to a bar to applying for asylum, unless they can demonstrate that there are changed circumstances materially affecting the alien's eligibility for asylum or extraordinary circumstances directly related to the failure to meet the 1-year filing deadline. INA sec. 208(a)(2)(B), (D), 8 U.S.C. 1158(a)(2)(B), (D). This bar is commonly known as the 1-year filing deadline. Through statute, Congress specifically chose to promote efficiency by prohibiting asylum applications filed more than 1 year after entry. The 1-year time frame was contemplated by Congress as an acceptable timeframe in which aliens should be able to secure legal representation and seek asylum relief. In fact, Congress specifically rejected other time frame proposals, like that of a 30-day asylum application filing deadline, choosing instead to set a 1-year filing deadline.[257]

Despite this prohibition, both DHS and EOIR adjudicate asylum applications filed by aliens who reside in the United States for years before applying for asylum. As of May 14, 2025, approximately 520,964 pending affirmative asylum applicants filed their Form I-589 between 1 year and over 10 years after entry. As of July 30, 2025, approximately 97,452 affirmative asylum cases filed between 1 year and over 10 years after entry were granted and 274,633 cases filed with the same timeframe were referred or denied. Many aliens filing for asylum now are aliens who were inspected and admitted or paroled but failed to depart at the end of their authorized period of stay (overstays), or who entered without inspection and admission or parole.[258]

As mentioned throughout, there is a record of close to 1.45 million pending affirmative asylum cases in USCIS' pending affirmative asylum caseload. USCIS is under great strain to adjudicate these cases, and the average processing time for an affirmative asylum case is 1,287 days. Due to how long it can take to adjudicate an affirmative asylum application, and because of the significant disparity in the eligibility requirements between an asylum application and a (c)(8) EAD, there is little to dissuade an alien from filing an asylum application for the sole purpose of obtaining employment authorization, even when an alien is statutorily ineligible for asylum or there is minimal likelihood that asylum would be granted.

USCIS has also attempted to reduce the affirmative asylum backlog in other ways. For example, a contributing factor to the asylum backlog is an increase in the number of aliens who file skeletal or meritless asylum applications affirmatively to seek a referral to the immigration court by an asylum officer. Once placed in removal proceedings in the immigration court, the alien can apply for cancellation of removal (COR) [259] —a form of relief from removal resulting in lawful permanent residence available to those who have at least 10 years of physical presence in the United ( printed page 8659) States and who meet additional eligibility criteria.[260]

As mentioned throughout, there is a record of close to 1.45 million pending affirmative asylum cases, and USCIS is under great strain to adjudicate these cases, and the average processing time for an affirmative asylum case is 1,287 days. Due to how long it can take to adjudicate an affirmative asylum application, and because of the significant disparity in the eligibility requirements between an asylum application and a (c)(8) EAD, there is little to dissuade an alien from filing an asylum application for the sole purpose of obtaining employment authorization, even when an alien is statutorily ineligible for asylum or there is minimal likelihood that asylum would be granted.

With the passage of IIRIRA, Congress added three categorical statutory bars to applying for asylum. Public Law 104-208, div. C, sec. 604(a), 110 Stat. 3009, 3009-691; INA sec. 208(a)(2), 8 U.S.C. 1158(a)(2). Aliens who failed to apply for asylum within 1 year of arriving in the United States are subject to a bar to applying for asylum, unless they can demonstrate that there are changed circumstances materially affecting the alien's eligibility for asylum or extraordinary circumstances directly related to the failure to meet the 1-year filing deadline. INA sec. 208(a)(2)(B), (D), 8 U.S.C. 1158(a)(2)(B), (D). This bar is commonly known as the 1-year filing deadline. Through statute, Congress specifically chose to promote efficiency by prohibiting asylum applications filed more than 1 year after entry. The 1-year time frame was contemplated by Congress as an acceptable timeframe in which aliens should be able to secure legal representation and seek asylum relief. In fact, Congress specifically rejected other time frame proposals, like that of a 30-day asylum application filing deadline, choosing instead to set a 1-year filing deadline.[261]

DHS has attempted to address asylum applications filed outside of the 1-year filing deadline by seeking to reduce asylum filings that are intended to result in removal proceedings for the purpose of seeking COR. In 2018, the Asylum Division began issuing Untimely Filing notices to asylum applicants with over 10 years of physical presence, allowing aliens to waive their asylum interview and be referred to immigration court. In FY 2023, the Asylum Division formalized these procedures concerning late-filed cases and continues to offer aliens the opportunity to waive the asylum interview and be referred to immigration court based on the 1-year filing deadline.[262] In February 2025, the Asylum Division centralized at the Asylum Vetting Center the issuance of all interview waiver notices for these late-filed cases and the referral to immigration court of aliens who accepted the interview waiver. As of April 9, 2025, USCIS estimates that approximately 82,700 pending cases have been filed by aliens who were living in the United States for at least 10 years at the time of filing their asylum application. In FY 2025 Q1, USCIS offered interview waivers to 2,957 applicants; 8 percent accepted the offer. In the past 5 fiscal years, including FY 2025 Q1, approximately 18 percent of aliens who were offered the opportunity to waive their interview accepted the offer. With this low rate of interview waivers offered and accepted, there has not been significant impact on the asylum backlog or on the rate of affirmative asylum application filings.

To curb the pull-factor of employment authorization for those who have been present in the United States for more than 1 year, DHS proposes to codify in regulation an ineligibility ground for (c)(8) EAD applications based on the application of the 1-year filing deadline for asylum applications. This provision would reduce the asylum influx of applications by disincentivizing aliens to file meritless asylum applications for the sole purpose of obtaining employment authorization. As Congress determined, absent changed or extraordinary circumstances, the statutory 1-year filing period is a sufficient period of time for aliens with meritorious asylum claims to submit their application to USCIS or an IJ.[263] DHS proposes to codify in regulation that it will apply the one-year filing deadline provision to any alien who filed his or her asylum application on or after the effective date of this final rule and filed the application after the 1-year filing deadline.

DHS is also proposing to allow two very limited exceptions to the 1 year-filing deadline as it relates to eligibility for a (c)(8) EAD. First, the rule proposes to except aliens from the application of the one-year bar to their (c)(8) EAD application for those who have established an exception under section 208(a)(2)(D) of the INA, 8 U.S.C. 1158(a)(2)(D), as determined by an asylum officer or IJ. For instance, there are situations where an asylum application is referred to the IJ on its merits, but the asylum officer had determined that an exception to the 1-year filing deadline bar applied. In a situation such as this, while the asylum applicant's case is pending review before the IJ, his or her application for employment authorization would not be barred by the 1-year filing deadline because they meet the exception.

Second, the rule proposes to codify the statutory exception to the application of the 1-year bar for aliens whose applications were under USCIS' initial jurisdiction because the alien was a UAC under 6 U.S.C. 279(g)(2).[264] This provision also follows the Settlement Agreement in J.O.P. v. U.S. Dept of Homeland Security, 8:19-cv-01944 (D. Md.) (approved Nov. 25, 2024) ( J.O.P. Settlement Agreement), under which the statutory 1-year filing deadline does not apply if the alien is a class member who was previously under USCIS' initial jurisdiction as a UAC even if an IJ later found that the alien was no longer a UAC.

In recent years, the United States has seen a massive influx of migrants, requiring DHS to divert resources to address the high number of migrant arrivals. The sharp increase of arriving migrants also coincided with a sharp increase in U.S. Border Patrol criminal alien arrests,[265] which rose from 4,269 in FY 2019 and 2,438 in FY 2020 to 10,763 in FY 2021.[266] In FY 2024, U.S. Border Patrol criminal alien arrests reached a record high of 17,048, to include aliens with convictions for offenses such as driving under the influence; assault, battery, domestic violence; illegal drug possession, trafficking; and illegal entry or re-entry.[267]

Under current regulations, aliens who have been convicted of an aggravated felony are ineligible for a (c)(8) EAD. ( printed page 8660) However, there are currently no other criminal bars to (c)(8) EAD eligibility. With growing numbers of migrants and the parallel increase of criminal alien arrests, DHS must prioritize the safety and security of the American people over providing a discretionary benefit to aliens in general, but in particular to aliens who are statutorily ineligible for the underlying benefit. This rule will prioritize the safety and security of the American people by disincentivizing illegal migration and criminal conduct for aliens who would like to obtain employment authorization. It logically follows that aliens who are barred from a grant of asylum due to criminal conduct should not be issued an EAD because of the asylum backlog or USCIS processing times. There are multiple reasons for this; first, the (c)(8) EAD is discretionary, and the Secretary does not want to favorably exercise discretion for such criminal aliens. Second, the criminal conduct is sufficiently serious to bar them from a grant of asylum, so it is incongruous to reward such an alien with an interim benefit like employment authorization. There is no analogous situation to this one among other USCIS benefit requests. Third, the historical practice of granting interim benefits for aliens who are not eligible for the primary or status-impacting benefit (in this case, asylum) has effectively incentivized frivolous, fraudulent, and otherwise meritless asylum filings.

Given the high volume of asylum filings, as well as the frivolous, fraudulent, and otherwise meritless filings, it follows that employment authorization associated with a pending asylum application should be curtailed, and this is the policy position of the Department. However, considering the sharp increase in encounters of aliens with criminal convictions, the current regulations definitively create an environment where criminal aliens receive the discretionary benefit of (c)(8) EAD despite the fact that they pose a risk to the national security and public safety of the United States and, for that reason, ultimately are not eligible for asylum.

When denying or referring an asylum application, USCIS does not always accurately record the specific reason for the denial or referral. For example, USCIS data may show denials based on “criminal record” but not “aggravated felony” or “particularly serious crime.” [268] Further, even where USCIS data tracks an option for specific grounds such as “persecutor bar” or “security risk bar” it does not seem that asylum officers consistently enter that data at adjudication. Instead, reviewing the data shows asylum officers record a determination that the alien was “not eligible” for asylum, since that is the only specific category of denials that is consistent year-over-year. In one example, there were zero denials based on the “firm resettlement bar” grounds from FY2015 to FY2019, then there was one such denial in FY2020, and then from FY2021 to FY2025 (to May 22, 2025) between 34 and 184 such denials each year. Additionally, from FY2015 to FY2025, USCIS data recorded only one single asylum application denial based on failure to appear for biometrics collection (one case from FY2015) and with asylum application volumes as high as they are, more than one alien in the last ten FYs would likely have failed to appear for a biometrics collection ( e.g., lost mail, neglected to update mailing address with USCIS, etc.). For all of these reasons, USCIS believes there is a concern here with incomplete data when recording the specific grounds for denying or referring an asylum application. However, DHS previously established that 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.[269] However, by FY2023, USCIS issued 5,963 denials or referrals to asylum applicants, and 4,351 (72%) had one or more previously approved (c)(8) EAD.[270] 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.[271] 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.[272] As such, the population impacted by this proposed change (aliens with one or more approved (c)(8) EADs who then has their asylum applications denied) as a percentage of overall denials is clearly increasing. While DHS data cannot conclusively establish at this time how many of those aliens were denied specifically because they posed a risk to the national security and public safety of the United States, what is of paramount importance in supporting this proposed rule, is that ultimately those aliens received a (c)(8) EAD despite being ineligible for asylum (regardless of the specific grounds).

For all of these reasons, DHS proposes codify in regulation additional ineligibility grounds for the (c)(8) EAD including criminal bars to asylum under sections 208(b)(2)(A)(ii)-(iii). In addition to excluding from (c)(8) EAD eligibility any alien who has been convicted of an aggravated felony as described by section 101(a)(43) of the INA, DHS proposes to codify in regulation a bar for any alien who has been convicted of a particularly serious crime and any alien for whom there are serious reasons to believe that he or she committed a serious non-political crime outside of the United States. In doing so, DHS will emphasize the importance of public safety and national security of the United States, by safeguarding the American people and restoring integrity to the discretionary benefit of applications for (c)(8) EADs.

Encounters by CBP have reached record numbers in the last few years: CBP reported approximately 3.2 million enforcement actions at U.S. borders, airports, and seaports in FY 2023, and 2.9 million enforcement actions in FY 2024.[273] On January 20, 2025, the President issued E.O. 14165, Securing Our Borders, stating that millions of aliens from nations and regions all around the world entered the United States illegally, posing a significant threat to the public safety and national security of the United States. The surging migrant encounters between 2022 and 2023 led to burgeoning asylum application filings.

Although aliens in removal proceedings who intend to apply for asylum must do so in immigration court as a defense to removal, many aliens filed directly with USCIS instead. In fact, from 2022 to 2023, the number of affirmative asylum filings nearly doubled from 241,280 to 456,750 applications, even though USCIS lacked jurisdiction over many of these applications.[274] The total number of ( printed page 8661) defensively filed asylum applications also nearly doubled from 2022 to 2023, from 260,830 to 488,620 applications.[275] Not surprisingly, just as asylum application filings have spiked, there has been a similarly sharp spike in filings for initial (c)(8) EADs. For example, USCIS received 262,869 initial (c)(8) EAD applications for the entirety of FY 2022. In FY 2023, that figure increased almost threefold to 802,753 initial (c)(8) EAD applications. The number of initial (c)(8) EAD filings continues to grow. In the month of January 2025 alone, USCIS received approximately 152,000 initial (c)(8) EAD applications.[276] If USCIS continues to receive initial (c)(8) EAD applications at the same volume as January 2025, USCIS would record a historical high-watermark for (c)(8) EAD applications in FY 2025 with 1.82 million applications. These parallel increases in border encounters, asylum applications, and initial (c)(8) EAD applications continue to clearly illustrate the existence of the relationship between employment authorization and a pending asylum application as a significant pull factor on illegal migration to the United States. Aliens who illegally entered the United States can become eligible to attain employment authorization in the United States during the pendency of their asylum application, which, due to a historic high of 1.45 million pending affirmative asylum cases, may take years to adjudicate. This means that the current regulations allow such aliens to access an ancillary benefit for years even if they are ultimately found ineligible for asylum.

DHS proposes disincentivizing illegal immigration by exercising its discretion to codify in regulation that 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 ineligible to receive an initial or renewal (c)(8) EAD. There would be limited exceptions if an alien demonstrates that he or she, without delay but no later than 48 hours after the entry or attempted entry, indicated to an immigration officer an intention to apply for asylum or expressed to an immigration officer a fear of persecution or torture; or otherwise had good cause for the illegal entry or attempted entry. Examples of good cause justifications for the illegal entry or attempted entry may include, but are not limited to, requiring immediate medical attention or fleeing imminent serious harm, but the rule would specifically state that good cause does not include entering for the evasion of U.S. immigration officers, to circumvent the orderly processing of asylum applicants at a U.S. port of entry, or for convenience. A good cause justification could also exist where an alien meets the definition of a victim of a severe form of trafficking in persons as provided in 8 CFR 214.11(a).

Likewise, aliens who are, or who were determined at any time since their most recent entry to be, UACs as defined in 6 U.S.C. 279(g)(2) would be excepted from this proposed bar.

DHS does not believe this change could be considered a “penalty” within the meaning of Article 31(1) of the 1951 Convention relating to the Status of Refugees, which is binding on the United States by incorporation in the 1967 Protocol relating to the Status of Refugees, because it is consistent with U.S. obligations under the 1967 Protocol.[277] The 1951 Refugee Convention, developed in the wake of World War II, serves as the basis for international refugee and asylum law and defines the term “refugee” [278] The United States was key in its creation, and later acceded to the 1967 Refugee Protocol which removed temporal and geographic limitations set by the 1951 Refugee Convention.[279] Article 31(1) of the 1951 Convention was written in order to ensure that refugees could effectively access international protection and to recognize that individuals fleeing persecution may engage in irregular migration. While Article 31(1) states that the alien must present themselves “without delay” and show “good cause,” these phrases are not defined in the 1951 Convention or the 1967 Protocol, and are therefore open to interpretation. This proposed change does not impact eligibility for the underlying asylum application and expressly exempts aliens who present themselves without delay, but no later than 48 hours after illegal entry, and establish good cause for entering or attempting to enter the United States at a place and time other than lawfully through a U.S. port of entry. DHS believes a 48-hour window for aliens to present themselves to authorities after illegal entry is a reasonable amount of time to provide. DHS has also provided examples of situations that may constitute “good cause” for the purpose of this provision and has purposely kept those broad to allow for discretion in considering the alien's circumstances that led to illegal entry.

Likewise, aliens who are now, or who were determined at any time since their most recent entry to be, UACs as defined in 6 U.S.C. 279(g)(2) would be excepted from this proposed bar.

The Secretary or the Attorney General may grant asylum to an alien who has applied for asylum if the Secretary or the Attorney General determines that the alien is a refugee.[280] However, asylum may be denied in the exercise of discretion to an alien, even those who establish statutory eligibility for the relief.[281] In exercising its discretionary authority over asylum applications, DHS examines the totality of the circumstances and all relevant factors to determine if a favorable exercise of discretion is warranted. It is the alien's burden to establish that a favorable exercise of discretion should be applied.[282]

Currently, applications for employment authorization filed by pending asylum applicants are not discretionary. 8 CFR 274a.14(a)(1). Under the proposed rule, approval of an application for employment authorization for asylum applicants would be at the discretion of USCIS. As previously discussed, this rulemaking acknowledges USCIS' past practices based on existing regulation and has provided justifications and data throughout to support the change from mandatory to discretionary approval of applications for (c)(8) EADs. The Department's proposed change to make the approval of (c)(8) employment authorization discretionary is intended to balance national security and benefit integrity with providing an avenue for asylum applicants to obtain ( printed page 8662) employment authorization. Similar to asylum, employment authorization for asylum applicants is not mandatory, but rather a benefit that Congress authorized and entrusted to the Secretary to administer. INA 208(d)(2), 8 U.S.C. 1158(d)(2). For (c)(8) employment authorization applications as a whole, it is within the Secretary's discretion to decide if employment authorization should be granted, and if so under what terms. DHS has broad authority to establish and amend regulations and to take other actions “necessary for carrying out” the Secretary's authority to administer and enforce the immigration laws. See INA sec. 103(a)(1) and (3), 8 U.S.C. 1103(a)(1) and (3) (granting the Secretary the authority to establish regulations and take other actions “necessary for carrying out” the Secretary's authority under the immigration laws); see also6 U.S.C. 202 (authorities of the Secretary); Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983) (emphasizing that agencies “must be given ample latitude to adapt their rules and policies to the demands of changing circumstances” (quotation marks omitted)). The current process and minimal criteria for obtaining (c)(8) employment authorization have contributed to the growing caseload of employment authorization applications and pending asylum applications because it has incentivized aliens to file for asylum in order to obtain employment authorization. As explained throughout this rulemaking, DHS believes this reform and the others described in this rulemaking will help improve the current asylum backlog by discouraging frivolous, fraudulent, or otherwise meritless asylum filings that are filed for the sole purpose of obtaining employment authorization. This will allow USCIS to devote more of its resources to adjudicating backlog asylum cases, thus helping to clear the way for meritorious asylum applications to be received, processed, and adjudicated more quickly.

DHS is removing the language referring to “recommended approvals” of asylum applications and the effect such notices have on the ability of some asylum applicants to seek employment authorization earlier than others. See8 CFR 208.7(a)(1) and 274a.12(c)(8). Before August 25, 2020, USCIS issued a recommended approval of asylum if an asylum officer made a preliminary determination to grant asylum, but USCIS had not received the results from the mandatory identity and background checks.[283] This allowed aliens with recommended approvals to be eligible to obtain a (c)(8) EAD. Recipients of recommended approvals did not fully complete the asylum adjudication process. As of August 25, 2020, USCIS stopped issuing recommended approvals as preliminary decisions for affirmative asylum adjudications.[284]

DHS proposes to revise 8 CFR 208.7(a)(1) and 274a.12(c)(8)(ii) to align with USCIS' current policy and practice and in furtherance of E.O. 14159, Protecting the American People Against Invasion, and E.O. 14165, Securing Our Borders.E.O. 14159 directed the Secretary to ensure that employment authorization is provided accorded to the statute and is not provided to any unauthorized alien. E.O. 14165 directed the Secretary to deter and prevent the entry of illegal aliens into the United States. The primary purpose of these executive orders is to strengthen both the integrity of the immigration system and our national security posture. Because recommended approvals, issued before full screening and vetting has been completed, are in contradiction to the provisions of these executive orders, DHS proposes to remove these provisions from the regulations, codifying the current procedures.

As discussed above in Section III.C of this preamble, the OBBBA established a range of fees related to immigration applications or other actions. In addition, the OBBBA made isolated substantive changes related to EADs.[285] As relevant here, Congress established the following parameters for when an alien's employment authorization based on a pending asylum application, whether the initial or a renewed authorization, terminates.286

Accordingly, DHS is updating the provisions at 8 CFR 208.7 related to the termination of pending asylum application-based EADs to match the OBBBA. See proposed 8 CFR 208.7(c).[287] Based on OBBBA, pending asylum application-based employment authorization will terminate as follows, even if the expiration date specified on the employment authorization document has not been reached: (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. Compared with the pre-OBBBA regulations, DHS notes that aliens will no longer have a (c)(8) EAD during the pendency of a petition for review in federal court.

As discussed throughout, benefit integrity is of utmost importance to this Administration and DHS. In the current climate of record asylum backlogs and lengthy asylum adjudication timelines, aliens are incentivized to file frivolous, fraudulent, or otherwise meritless asylum filings for the purpose of obtaining employment authorization. Allowing an alien to maintain (c)(8) employment authorization for a possibly lengthy period of time after the asylum application has been denied is further incentivizing frivolous, fraudulent, or otherwise meritless filings. By automatically terminating the (c)(8) EAD once the asylum application has been denied by USCIS or the Immigration Judge, or denied or dismissed by the Board of Immigration Appeals, DHS aims to help ensure that the benefit of a (c)(8) EAD is reserved for aliens with meritorious asylum claims, and that any extended employment authorization period does not unduly reward aliens who are ultimately found ineligible for asylum.

Asylum applications filed by a UAC must be processed according to requirements established in the TVPRA, Public Law 110-457, 122 Stat. 5044, and the J.O.P. Settlement Agreement. Under the terms of the J.O.P. Settlement Agreement, USCIS will not rely on any determination by DOJ that an alien is not a UAC.[288] Rather, USCIS exercises initial jurisdiction over the adjudication of the UAC's asylum application and renders its own jurisdictional ( printed page 8663) determination.[289] Accordingly, UACs who have been denied asylum by an IJ, the BIA, or a Federal court may still have a pending asylum application before USCIS because USCIS retains initial jurisdiction over asylum applications filed by UACs.[290] Therefore, if a UAC's asylum application remains pending before USCIS, which is the basis for the alien's (c)(8) EAD, his or her (c)(8) EAD will not automatically terminate even if his or her asylum application is denied by an IJ, BIA, or a Federal court.

In furtherance of the effort to deter frivolous, fraudulent, or otherwise meritless asylum filings for the sole purpose of obtaining employment authorization, DHS proposes to codify in regulation the authority to prioritize for adjudication an asylum application in which derogatory information is encountered during any (c)(8) EAD adjudications. For example, if USCIS discovers a national security risk while conducting security checks on a (c)(8) employment authorization applicant, USCIS may flag the corresponding asylum application so that an asylum adjudicator may more rapidly schedule the case for an interview and make a decision on the case. In conducting security checks on renewal (c)(8) applicants, USCIS may discover new convictions or arrests that warrant a prioritized asylum interview or adjudication. For example, an asylum applicant may have had no arrest record at the time he or she applied for asylum and received the initial EAD, but he or she may have since been convicted of an aggravated felony. In that instance, an EAD adjudicator could flag the case for the asylum office with jurisdiction over the application, so that the interview and adjudication could be prioritized. The outcome in both of these examples is to more rapidly adjudicate cases where applicants present risks and to reduce the time cases such as these linger in the backlog.

This significant change would allow the Department to quickly identify and efficiently remove ineligible aliens who pose a national security or public safety threat to the United States, while simultaneously decreasing the pending applications in queue.

Additionally, as referenced throughout this NPRM, the caseload of pending affirmative asylum applications has become an enormous burden on DHS and has grown to more than 1.45 million as of the end of FY 2024.[291] Alongside the growing pending affirmative asylum application caseload is the accompanying number of (c)(8) EAD applications filed by affirmative and defensive asylum applicants. Initial applications for EADs based on pending asylum applications have steadily increased over the years, with USCIS receiving 62,169 (c)(8) EAD applications in FY 2014, 261,793 (c)(8) EAD applications in FY 2017, and then seeing an explosive jump to 802,753 (c)(8) EAD applications in FY 2023.[292] In FY 2024, USCIS received 1,200,533 initial (c)(8) EAD applications.[293] In order to deter frivolous, fraudulent, or otherwise meritless asylum claims, in 2018 DHS returned to a LIFO interview scheduling approach, where DHS could refer recently filed meritless asylum applications quickly and place those aliens into removal proceedings. Similarly, this proposed provision will allow DHS to prioritize the completion of meritless asylum applications in cases where derogatory information is identified, allowing the Department to avoid adding to the exponentially increasing asylum backlog. This change could lead to slightly longer processing times for aliens without derogatory information, but the Department believes any additional time would be de minimis and notes that should not be the paramount concern, especially since those aliens will still remain eligible to apply for (c)(8) EADs. Rather, DHS is choosing to prioritize national security and public safety and the reduction of backlogged cases for aliens who filed frivolous, fraudulent, or otherwise meritless asylum applications, as well as aliens who are simply ineligible for asylum.

In 2003, 8 CFR 208.3 and 208.7 were duplicated in a new 8 CFR Chapter V as part of the amendments to the regulations to reflect the creation of the Department of Homeland Security and the transfer of functions between DOJ and the new DHS. See68 FR 9824, 9834 (Feb. 28, 2003). At the time, DOJ duplicated the entire Part 208 into the new Part 1208 for EOIR because the provisions were “so interrelated that no simple division of jurisdiction is possible” and stated that DOJ expected the Departments to engage in further rulemaking to refine the division of authorities at a later date. Id. 9826.

In 2020, EOIR amended the EOIR provision at 8 CFR 1208.3(c)(3) regarding the form of an asylum application, including by removing the reference to a 150-day waiting period for filing for employment authorization, and reserved the EOIR provision at 8 CFR 1208.7 regarding employment authorization documents for asylum applicants. 85 FR 81698 (Dec. 16, 2020). However, as noted in section III.D.3.a of this preamble, that rule was preliminarily enjoined. Nat'l Immigrant Justice Ctr., Np. 21-56 (RBW). Accordingly, the currently effective version of 8 CFR 1208.7 is no longer officially reserved. Nonetheless, 1208.7 and the reference to a 150-day wait for filing for employment authorization at 1208.3(c)(3) do not have substantive effect because DOJ has no authority to adjudicate employment authorization applications. Cf.85 FR 59692, 59696 (Sep. 23, 2020) (explaining DOJ's decision to remove the specific time period after which asylum applicants may file an application for employment authorization “to ensure that EOIR regulations do not contradict DHS regulations regarding employment authorization eligibility,” and to reserve 8 CFR 1208.7 because “EOIR does not adjudicate applications for employment authorization.”).

Accordingly, DHS recognizes that this rule would result in inconsistencies between the DHS regulations at 8 CFR 208.3 and 8 CFR 208.7 and the DOJ regulations at 8 CFR 1208.3 and 8 CFR 1208.7. Nevertheless, as of the effective date of this final rule, the revised language of 8 CFR 208.3 and 8 CFR 208.7 would govern DHS and its adjudications. DHS has been in consultation with DOJ on this rulemaking, and DOJ may issue conforming changes at a later date. ( printed page 8664)

E.O. 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14192 (Unleashing Prosperity Through Deregulation) directs agencies to significantly reduce the private expenditures required to comply with Federal regulations and provides that “any new incremental costs associated with the new regulations shall, to the extent permitted by law be offset by the elimination of existing costs associated with at least 10 prior regulations.”

The Office of Management and Budget (OMB) has designated this rule a “significant regulatory action” that is economically significant as defined under section 3(f)(1) of E.O. 12866. Accordingly, the rule has been reviewed by OMB.

Additionally, this rule is not an Executive Order 14192 (see 5(a)) regulatory action because it is being issued with respect to an immigration-related function of the United States. The rule's primary direct purpose is to implement or interpret the immigration laws of the United States (as described in INA sec. 101(a)(17), 8 U.S.C. 1101(a)(17)) or any other function performed by the U.S. Federal Government with respect to aliens. See OMB Memorandum M-25-20, “Guidance Implementing Section 3 of Executive Order 14192, titled “Unleashing Prosperity Through Deregulation” (Mar. 26, 2025).

The proposed rule would impact the administrative process for issuance of EADs for aliens with a pending asylum application ((c)(8) EAD), processing timeframe for (c)(8) EAD applications, waiting period to apply for and receive a (c)(8) EAD, (c)(8) EAD validity period, and eligibility requirements for (c)(8) EADs. The rule will require changes to existing regulatory text and the creation of new regulatory text.

DHS expects that this proposed rule will generate substantial benefits. 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 will 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. 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 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.

Additional, unquantifiable benefits resulting from this proposed rule include reduction and prevention of potential fraudulent cases, providing consistency and clarity to aliens seeking asylum, and streamlining the initial USCIS (c)(8) EAD request process for sustainable case processing times. 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 application at USCIS.

Requiring aliens to submit biometrics 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 collection DHS would increase program integrity by ensuring that only eligible aliens who continued to pursue asylum were applying for and obtaining work authorization. This would also generally provide a benefit for the public; in that it increases 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 impacts of this rule may also be borne by companies that would have ( printed page 8665) 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. 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.[294] Since USCIS has reduced the maximum EAD validity 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.

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 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 is pertinent to adjudicating less asylum claims. DHS does not rule out that there could be resources allocated to other operational areas.

Table 4 provides a detailed summary of the regulatory changes and the expected impacts of the proposed rule's provisions. USCIS estimates the primary impact of the rule would result from a pause in accepting all initial (c)(8) EADs applications until USCIS affirmative asylum applications processing time reaches a 180-day average (estimated in Module 1, below). Additionally, USCIS provides monetized impacts for provisions that would affect EAD applicants (for initial and renewal EADs) when the pause is lifted (estimated in Module 2, below). However, USCIS does not include Module 2 in the total rule impact, because the Module 1 impacts (pause EADs) accounts 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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Consistent with OMB Circular A-4, Table 5 presents the prepared A-4 accounting statement showing the costs and transfers associated with this proposed regulation. We calculate the midpoint between the minimum estimate and maximum estimate as the primary estimate of this proposed rulemaking.

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The proposed rule would impact the process for issuance of EADs for aliens with a pending asylum application (c)(8) EAD, processing timeframe for (c)(8) EAD applications, waiting period to apply for and receive a (c)(8) EAD, (c)(8) EAD validity period, and eligibility requirements for (c)(8) EADs. The rule will require changes to existing regulatory text and the creation of new regulatory text.

The purpose of this proposed rulemaking is for DHS to be able to balance its overall adjudication burdens with available resources by ensuring that initial (c)(8) EAD filings are not creating incentives for aliens to file frivolous, fraudulent, or otherwise meritless asylum applications. Thus, this rule proposes to introduce a number of additional provisions to help with the issues of benefit and program integrity, national security, public safety, and resource strain at USCIS. DHS expects the proposed changes would reduce confusion regarding EAD requirements for aliens with pending asylum claims and the public and help ensure the regulatory text reflects current DHS policy and more faithfully implements the intent of the statute while simultaneously improving program integrity.

The proposed rule will impact the process for issuance of employment authorization documents for aliens with a pending asylum application (c)(8) EAD, aliens with denied asylum claims who have a valid EAD at the effective date of the final rule, processing timeframe for (c)(8) EAD applications, waiting period to apply for and receive a (c)(8) EAD, (c)(8) EAD validity period, and eligibility requirements for (c)(8) EADs. The rule will require changes to existing regulatory text and the creation of new regulatory text.

The baseline in this NPRM represents a world absent this proposed regulation, which is a continuation of current policy and trends. The impacts estimated in this RIA are relative to this baseline.

The population affected by this proposed rulemaking is the asylum requesting population whose asylum applications are pending. While their asylum applications are pending, this population can request employment authorization, colloquially known as a (c)(8) EAD. For this NPRM, to project a potential future (c)(8) EAD population we need to account for any historical patterns. Table 6 presents the historical perspective of the initial (c)(8) EAD population. On average we can see that this population grew at about a 39.26 percent rate over the nine-year span of period FY 2016 through FY 2024. One note is the growth rates of FY 2022 through FY 2024 were higher than that of period FY 2016 through FY 2024. Excluding the high-growth years, over the five-year period FY 2017 through FY 2021, the growth rate was 7.30 percent. For this NPRM, we take this rate as the average longer term growth rate of this population.

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DHS cannot predict whether the FY 2022 through FY 2024 growth rates represent a structural change as immigration policies and other conditions domestically and internationally could change and potentially affect asylum applicants. Given this uncertainty, in projecting a potential future (c)(8) EAD population we account for two possibilities. We first project a scenario (“low scenario” in Table 7) where we assume the levels of the high-growth years driven by unique factors, policies, or some influence of both that would not continue apace into the future. We also rely on a “high scenario” where the high-growth years might constitute a sustainable change in trend. As such, for the low scenario we take the FY 2021 (c)(8) EAD data point, which is 214,565, then apply the assumed longer term growth rate of 7.3 percent to arrive at our first projected year, FY 2025 of Table 7. Then we take the projected FY 2025 and repeat for the remaining projected years. For the high scenario, we take the average of the high-growth years, average of FY 2022 through FY 2024 in Table 6,[297] which is 755,385, then apply the assumed longer term growth rate of 7.3 percent to arrive at our first projected year, FY 2025. Then we take the projected FY 2025 and repeat for the remaining projected years. Lastly, we take the average of the low and high scenarios (the “midpoint scenario” in Table 7) to arrive at a midpoint scenario population.

Table 7 presents the projected baseline population for FY 2025 through FY 2029. We set our projection period to 5 years as we cannot predict with certainty longer term trends given that immigration policies and other conditions domestically and internationally could rapidly change affecting aliens with pending asylum applications.

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The sub-population components pertinent to specific aspects of this rulemaking will be presented in Section VI.A.6.

To monetize the impacts of this proposed rule, we need information on potential wages that the baseline population could earn or information on their opportunity cost of time. To estimate potential earnings impacts, USCIS makes uses of U.S. Bureau of Labor Statistics (BLS) data as follows. We will use the mean hourly wage for all occupations of $31.48 as an upper bound and the 10th percentile wage of $13.97 as a lower bound.[298] For a more encompassing measure of compensation, we will use a benefits multiplier of 1.45 applied to the respective mean and 10th percentile wages, resulting in average hourly total compensation rates of $45.65 and $20.26, respectively.[299]

As it relates to potential impacts to labor earnings, DHS also estimates a potential tax effect. It is challenging to quantify income tax impacts of employment in the labor market scenario because individual tax situations vary widely, but DHS estimates the potential contributory effects on employment taxes, namely Medicare and Social Security, which have a combined tax rate of 7.65 percent (6.2 percent and 1.45 percent, respectively).[300] With both the employee and employer paying their respective portion of Medicare and Social Security taxes, the total estimated accretion in tax transfer payments from employees and employers to Medicare and Social Security is 15.3 percent. DHS estimates the tax impacts on the unburdened earnings basis. This is calculated by multiplying the earnings impact by the employment tax rate of 15.3 percent, and dividing the resulting product by the benefits burden multiple of 1.45. DHS is unable to quantify other tax transfer payments, such as those applicable to Federal income taxes and State and local taxes.

Until recently, there were no fees associated with requesting asylum or an initial (c)(8) EAD, and no biometrics collection requirement associated with (c)(8) EAD applications. 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.[301] The proposed rule establishes a biometrics collection applicable to (c)(8) EAD requests, but it is not imposing a service fee via this rulemaking. DHS explained other impacts linked to biometrics collection in the final section of this analysis. This rulemaking proposes changes to the forms I-589 and I-765, forms relevant to the baseline population. The current form burdens are 11 hours for Form I-589 and 4.38 hours for Form I-765.[302] DHS estimates that the future filing time for Form I-765 will be 4.72 hours. In the impact estimates, DHS will rely on this projected burden, noting that it represents the maximum impact. The ( printed page 8677) reason is that some aliens file electronically, and the burden for electronic filings will be less, changing from 4.12 hours to 4.35 hours.[303]

In the impact estimates, DHS accounts for costs and cost-savings applicable to changes involving filing for- and not filing for, an EAD, but does not include the recent statutorily-mandated filing fees in these estimates.

In this section DHS develops, estimates, quantifies, and monetizes potential economic impacts that could accrue to the proposed rule, although not all impacts can be fully quantified. The primary effect will be changes to labor compensation earnings that asylum applicants who have obtained (c)(8) EADs could incur. The changes to earnings would likely comprise delayed or forgone earnings to EAD holders; however, some portion, or the totality of the aggregate earnings change could also constitute transfers to American workers without productivity loss to employers. DHS acknowledges that there would be impacts applicable to (c)(8) renewal filings, but to scope the analysis, we focus on the primary impact of an initial approved (c)(8) EAD. At the time of this analysis, June 2025, an initial (c)(8) EAD is authorized for five years, which is the main basis for the analysis period.[304] In addition to earnings impacts there could be tax impacts as well as costs and cost-savings to asylum applicants not filing for EADs in the future and changes to the form burden. These effects are also quantified, to the extent possible.

The monetized estimated impacts are developed in two modules. Module 1 covers the impacts applicable to a pause in the issuance of initial (c)(8) EADs until USCIS affirmative asylum applications processing time reaches a 180-day average. Module 2 covers the provisions related to EAD eligibility, ending some EADs early, and well as the proposed changes to the (c)(8) filing time and process time protocol. The changes to EAD eligibility requirements for initial (c)(8) EAD applicants would become applicable only when the pause, covered by Module 1, is lifted. The impacts are parsed this way to avoid double counting, as an issuance pause would comprise the largest impact and encompass any effects that could be incurred under an issuance protocol (Module 2). There are numerous metrics and inputs utilized in the analysis, and for the purpose of brevity, we will utilize letter abbreviations for many, which will be introduced when applicable.

To support the economic impact estimates for this proposed rule, DHS analyzed data provided by the USCIS Office of Performance and Quality. The data set links information on asylum filings with concomitant (c)(8) EAD filings, comprising 2.26 million records for the full period FY 2022 through FY 2024.[305] It fully embodies USCIS affirmative asylum data, and while it includes EAD data linked to defensive asylum, data regarding defensive asylum outcomes are not fully available, as DHS cannot concatenate such data between USCIS and EOIR, at this time.

The population (POP) at its broad level is the total population of initial (c)(8) EAD approvals, as denials would not be impacted. A first phase of the analysis parses out and reports the specific populations that the rule could impact, as is shown in Table 8. Under both Module 1 and 2 the broad population could be impacted, but there is an important distinction in the manner in which the impacts are estimated. If there is a pause in the issuance of initial (c)(8) EADs ( i.e., Module 1), the entire population, initial EAD filings for both pending affirmative and defensive asylum would be impacted, as no pertinent individuals would obtain an EAD. In contrast, when the pause is lifted ( i.e., Module 2), DHS assumes that initial (c)(8) EADs would be issued primarily for pending defensive asylum applicants. This is because the pause is lifted only when the processing time for affirmative asylum processing is less than 180 days, and thus prior to the end of the proposed 365-day waiting period for an initial (c)(8) EAD. An asylum approval would grant work authorization, and a denial would make the individual ineligible for work authorization.

As is explained in the preamble, given the scope of the pending affirmative asylum caseload, USCIS is prepared to pause (c)(8) initial EADs when the rule becomes effective. As discussed earlier in the preamble, the reduction in (c)(8) initial EAD filings could be a factor in reducing process times for asylum, which could position USCIS in the future to meet the regulatory criteria of 180-day asylum average process time and lift the pause to begin again issuing (c)(8) initial EADs. While DHS cannot speculate on when this would occur, based on estimates discussed previously, DHS assumes it would likely be outside the five-year span under which the impacts applicable to the pause are estimated. Therefore, for purposes of explaining a regulatory baseline, DHS could assume that once Module 2 commences, in the absence of the proposed changes to the clock and the eligibility bars, asylum and (c)(8) EAD volumes would revert back to levels before the rule (and pause) took place.

What the above discussion suggests is that if DHS is meeting the 180-day asylum processing time, (c)(8) initial EAD volumes applicable to affirmative asylum could converge to zero. The impact to affirmative asylum is twofold; first, individuals with approved affirmative claims could benefit because they could become work authorized earlier—their asylum claim would be approved before their “past” claim or EAD, whichever of the latter two was approved first. Second, individuals would realize a cost-savings from not filing for an EAD. While DHS expects these impacts to occur, the Department does not make estimates of the impacts to the affirmative population for two reasons; first, as was stated above, for a baseline we could assume asylum filings and concomitant (c)(8) EADs would revert to pre-rule levels, but this is not realistic. Due to lingering effects of the (initial) pause the initial (c)(8) volumes relevant to Module 2 would likely be quite different than recent historical volumes. Second, DHS cannot predict when an asylum claim could be approved (within the 180-day window). In summary, DHS acknowledges that this proposed rule will have a significant impact on both the asylum and associated EAD populations but, for the reasons described above, DHS is unable to quantify the indirect impacts of potential earlier earnings and filing cost-savings.

In Module 2, DHS operates under the assumption that USCIS affirmative asylum applicants would generally not file for an EAD, as their asylum case would potentially be decided in advance of their application for an EAD. This is even more likely given the EAD ( printed page 8678) filing clock change from 150 to 360 days. Therefore, DHS assumes the affirmative population would not be affected by the Module 2 provision. For Module 2, DHS estimates impacts to the defensive population, also described as the EOIR population. Defensive cases would not be subject to the proposed 180-day asylum process time requirement. Hence the eligibility bars and clock changes would potentially be impactful to defensive cases. The reason is that the data analysis reports the median time for a USCIS referral to EOIR (date of receipt of the asylum application to the referral decision date) is 231 days. Adding the referral time frame to the lengthy current process time for asylum cases at EOIR, DHS expects that most would benefit from filing for an EAD as it would be approved before the asylum decision date, even with the EAD clock changes.

To conduct the analysis, DHS drew a random sample of 5,000 records from initial EAD applications, including affirmative and defensive asylum cases. This size is much larger than is required to generate 95 percent confidence in the results, but DHS oversampled considerably because there are multiple sub-populations impacted, and DHS sought assurance of adequate inter-group representation. The population breakout is reported in Table 8 and is based on the projected annualized average filing volumes or the analysis period of FY 2025 to FY 2029. It is noted that the encompassing population comprises receipt volumes (Section VI.A.3) multiplied by an approval rate of 83.5 percent (applicable to both affirmative and defensive filings), which is the weighted average (c)(8) EAD approval rate for the period FY 2019 through FY 2024 (in estimating specific impacts DHS utilizes a range, derived from historical data for the approval rate, APV).

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The reported shares derived from the sample are extrapolated to the population to obtain estimates of the number of aliens potentially impacted. For Module 2, the basis for Row A is the total EOIR population, which, based on our analysis, is 63.7 percent of the estimated approved (c)(8) EAD population.[307] DHS examined the three proposed bars to eligibility: one-year filing deadline, entry without inspection, and criminal bars. For the one-year filing deadline, DHS calculated the day-duration between the entry date and the receipt of the Form I-589 to obtain an estimate of the population potentially subject to the 1-year filing deadline bar (OYB). DHS also filtered cases recording entry without inspection (EWI) to estimate the potential population that could be subject to the EWI bar. As can be derived from Table 8, 35.4 percent could be subject to either bar, but we removed the overlap correction factor (OCF) of 5.4 percent, the latter of which is the percentage to which both bars could apply, to arrive at the total share shown (A4). The total number of future EAD filers reported in Row A5, is the EOIR cases population (Row A) minus the OYB and EWI bar population excluding overlap (Row A4). For the other bars, DHS cannot make an estimate of the number or share of cases. Information on criminal activity can be recorded in adjudicative records and officer notes and, while DHS does have some data and information asylum cases that were denied on such grounds, DHS does not have data linking those cases to EAD data in a manner suitable for analysis. The percentages in A1, A2, and A4 thus apply to the EOIR population. For reference, the shares applicable to the total (c)(8) EAD population for the eligibility bars (A4) and those that would file in the future (A5) are 19.1 and 44.6 percent, in order.[308]

DHS also examined the impacts of the proposed changes to termination of employment authorization. The figure of 159 (Row B, Table 8) is the estimated number of annual USCIS asylum denials (DEN) in which the individual received an EAD. This proposed rule would end the EAD (before its expiration date) when USCIS denied the affirmative asylum claim. DHS cannot determine how many would be valid when the rule becomes effective and hence this small volume will be a proxy for the number impacted at effective date.[309]

Because there are multiple metrics involved in the two modules, and because some incur ranges, DHS will utilize a modelling and simulation approach based on a large number of randomized seed trials. This approach provides a robust and efficient estimation mechanism; even though the impacts across module and type are reported separately per regulatory guidance, their setup can be nested into a single-dimension simulation that ensures the impact estimates are based on the same randomized trial values for common variables (for example, population and (c)(8) approval rate). When a data range is involved, a triangle data structure is utilized when a minimum, average, and maximum value is applicable. If there is not an average or “likeliest” value, a uniform range is bounded with a maximum and minimum value, which essentially means that the probability of any value chosen in a trial run is the same for all values within the range.

DHS believes it is appropriate to incorporate realistic aspects of the labor market into the DHS estimates. For example, we can assume that all individuals with EADs would be in the labor force but cannot reasonably assume that all are employed at the effective date of the rule, and thus it would be appropriate to take the unemployment rate into account. To integrate labor market effects, DHS calculates an intensity scalar (SCL), a measure of the hours of wages earned per day, per member of the workforce, using the following equation:

Where BEN is the benefits burden, u is the unemployment rate, and

is the work hours per week divided by the days per week (7). The BEN is defined by BLS and is equal to 1.45,[310] the unemployment rate u, is 0.041, and whw is 34.2.[311] This yields a value of 6.79 hours of wages earned per day per member of the workforce.[312]

Working with a single value to incorporate realistic labor factors is beneficial because it is not necessary to adjust the variables—such as the benefits burden to wages and the approval rate to the population—sequentially or even directly; all the inputs interact multiplicatively and can therefore be nested as a single dimensional system. Having described the data and the population, we proceed to the Module 1 estimation.

If there is a pause in the acceptance of applications for (c)(8) EADs, the primary impact to aliens would be forgone labor earnings,[313] with the change to earnings denoted ENG throughout this analysis. We attribute the earnings change to a 5-year horizon, to capture the EAD validity period at the time the analysis was conducted. It includes an adjustment that accounts for possible substitution into another EAD category (SUB). DHS analysis reveals that for the data coverage period, 16.3 percent of (c)(8) EAD holders also received an EAD in another category of eligibility. There could be variance to this share in the future, however. On one hand, a pause in (c)(8) EAD applications would likely drive some aliens to seek EADs in other classes of eligibility, thus raising the share (and thereby reducing the share that would experience earnings change). However, a countervailing motion could occur if actions are undertaken that reduce eligibility in other classes that incurred dual EADs, in which the share could drop. Therefore, we will bound the SUB share at the current share (as the maximum, 16.3 percent) but allow as few as 5 percent to substitute, under the assumption that aliens who received an ( printed page 8680) EAD in another eligibility category would not sustain an earnings impact.

The earnings metric is based on the hourly wage (HWG, which ranges from $13.97 to $31.48, unburdened) and the time is based on a year (YER = 365 days). Denoting the daily worktime intensity scalar, developed above, as “SCL” the estimating equation for the total impact is the sum of three terms. The first, is the earnings change, followed by changes in taxes (TAX),

(2) ENG = {POP × APV × HWG × (1 − SUB) × SCL × YER};

As is shown, TAX is calculated as earnings multiplied by the tax rate (TXR=15.3 percent, which is the sum of the Medicare and Social Security tax, developed in Section 4) and divided by the benefits burden (“BEN”) as DHS quantifies tax impacts on unloaded wages. The third term is the form burden cost-savings (CSV), and is expressed as,

(4) CSV = {POP × APV × HWG × (1 − SUB) × FMB × BEN},

which includes the form time-burden (“FMB”=4.72 hours) and BEN. Cost-savings accrue from avoided opportunity costs of time for filing the I-765.

DHS abridged the estimating setup into a truncated equation and nested in the simulation program.[314]

Table 10 reports the values for the 5-year period FY 2025 through FY 2029. Because the simulation output provides the impact for the average annual EAD population, DHS calculated a five-year total impact from this output. Since the EAD length is currently 5 years, the earnings and taxes impacts grow consecutively each year as there are overlapping populations starting in the second year.[317] However, for costs savings that would result from one-time form submission per initial EAD applicant who can no longer file, DHS used the average annual EAD population (Table 8) for each analysis year.

The net impact is earnings minus cost-savings. The results are presented first in undiscounted terms and then at discount rates of 3 and 7 percent, in order.

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( printed page 8682)

( printed page 8683)

As is reported in Table 10, net impacts from Module 1 could range from $172,867.8 million to $632,576.3.6 million (undiscounted), with a mean estimate of $368,437.9 million over 5 years, with annualized averages that could range from $34,573.6 million to $126,515.3 million, with a mean of $73,687.6 million. At a 3 percent discount rate, net impacts could range from $155,215.0 million to $567,979.0 million, with a mean estimate of $330,813.9 million over 5 years, with annualized figures es that could range from $33,891.9 million to $124,020.8 million, with a mean of $72,234.7 million. At a 7 percent discount rate, net impacts could range from $135,371.1 million to $495,364.2 million, with a mean estimate of $288,520.1 million, with annualized figures that could range from $33,015.7 million to $120,814.7 million, with a mean of $70,367.4 million.

Having developed and reported the quantified and monetized potential impacts of a (c)(8) EAD issuance pause, we turn to Module 2 impacts.

Under a scenario in which USCIS is processing affirmative asylum applications within 180 days, and therefore USCIS could issue (c)(8) EADs under the provisions of this rule, there could be impacts from other provisions of the proposed rule to both affirmative asylum aliens and also EOIR defensive aliens. Modules 1 and 2 are parsed separately to avoid double counting, as Module 1 quantified impacts comprise the largest (total) impacts of the rule. As was discussed above in reference to the population, all initial approved (c)(8) EADs would be subject to the bars and filing clock changes but in practice, such bars will generally apply only to defensive asylum applicants. This is because when there is not a pause in the issuance of initial (c)(8) EADs, USCIS would generally be adjudicating affirmative applications for asylum before such applicants are eligible to receive employment authorization on the basis of a pending asylum application. The quantified estimates in this section are not in addition to those under a full pause; they should be considered as separate to not overcount.

The proposed rule would result in some EADs ending early due to new requirements, which would result in earlier denial of work authorization. For the ending of EADs earlier than that stipulated in their validity date, as was explained in the discussion applicable to the population, DHS does not know how many cases will apply at a specific point in time but will utilize the annual number (DEN=159) as a proxy (which can be considered the number, based on the data available, that would be valid at any time within a year).[318] This figure only applies to concomitant affirmative asylum denials, and the true figure, inclusive if defensive cases, would be larger. To obtain the pertinent earnings metric, DHS calculated the amount of time remaining (TMR) left in validity at the date of the asylum claim denial, which is a median 434 days. As was noted in the above section applicable to Module 1, the recent USCIS policy change limiting maximum validity for (c)(8) EADs to 18 months will likely have an impact here as well. Specifically, the median remaining time left would potentially be much lower than 434 days, meaning that the quantified estimates reported below for this impact (earnings and taxes) are overstated currently. The following summary equations represent the Annual Results as shown in Table 11 for earnings and taxes based on ending EADs early due to new requirements,

(5) ENG2 = {DEN × TMR × HWG × SCL};

For the EOIR defensive asylum cases, there will be two population groups impacted. First, the filing bars will apply, and the changes to the EAD clock ( printed page 8684) will be binding. As was introduced in the presentation of the population, DHS expects EAD filings to continue, as the EAD would generally be approved prior to the adjudication of the asylum claim, at least under the current conditions of large backlogs. First, we present the estimation structure for the impacts that would accrue to the ending of some EADs early and the filing bars. As is applicable to the latter, earnings impacts are estimated as,

(7) ENG3 = POP × APV × (OYB + EWI−OCF) × HWG × SCL × YER.

In this equation, the population is the defensive asylum/EOIR population (see Table 8), the term (OYB + EWI−OCF) is the percentage (share) subject to the bars, and taxes are calculated the same way as in Equation 2. Individuals that could be impacted by the eligibility bars might file for an EAD, but if they do, they will be denied. Some aliens are likely to realize they are ineligible and will therefore not file. USCIS believes it is reasonable to operate under the assumption that potential filers with legal representation would likely be advised not to file. USCIS evaluated the (c)(8) data and determined on average about half of the population uses a representative for their (c)(8) EAD request. Therefore, about half the population could incur filing cost-savings and about half would incur sunk costs associated with filing for an EAD that would be denied. In the net, the impact would be close to zero as costs would offset savings.[319]

DHS assumes that aliens subject to the eligibility bars cannot substitute into another EAD class. To estimate the eligibility bar total impact, we can draw out a common term for Module 2 (CT2),

(8) CT2 = {POP × APV × (OYB + EWI−OCF) × HWG}

The following summary equations represent the Annual Results as shown in Table 11 for earnings and taxes for the eligibility bars applicable to EOIR cases,

(9) ENG3 = {CT2 × SCL × YER}

The changes applicable to the (c)(8) EAD filing and processing time jointly affect the earnings clock. Under the proposed rule, the EAD filing time would increase from 180 days to 365 days, where an applicant would need to wait longer to file under the proposed rule (“EAD clock”). Further, the proposed rule would provide USCIS additional time to adjudicate and process from the baseline 30 days to 180 days. The metric to affected earnings will be the difference in the EAD “wait time,” which constitutes the duration between the asylum receipt claim and the approval of the (c)(8) EAD. The wait time is the sum of two components, the EAD filing time (FTC, FTF) and the process time, in which “C” denotes current, or past, and “F” is the future, or conditions under the rule. To estimate FTF we employ a simple behavioral approach; FTF will be set at 365 applicable to past values less than this value; if someone filed at 200 days in the past they would file at the new minimum (365). For those who filed past 365 days in the past, they would be assigned their actual past value; if someone waited 400 days to file, they would file at that same time in the future. This behavioral system imparts that those filing under 365 days would file unconditionally at the new minimum, whereas others would not be impacted by the filing clock change.

DHS seeks sufficient time to conduct diligent and thorough review, to include screening and vetting for national security and public safety concerns, of (c)(8) EAD applications. While DHS cannot predict exactly what (c)(8) EAD process times will look like in the future, at the time of this analysis we believe that most EADs can be adjudicated within about 120 days and that 90 days is a reasonable cluster point. However, DHS will allow a window of up to 180 days, though an individual case could take longer for any number of reasons. DHS emphasizes that process times of 90 days that we rely on as a cluster point (and 120 days as an upper end range for most (c)(8) EADs applications) is not a prediction, as the process time could vary for reasons linked to case-by-case analysis of individual cases or changes in ( printed page 8685) operations, resources, policies, and immigration. Rather these values are inputs required to make our estimation procedures tractable and are based on what DHS thinks is currently reasonable.

As it applies to the future process time it is necessary to employ a data transformation mapping each past value to a future one. In this sense, because the future will be charted from past data, there is a behavioral element to the process time also. But, because a transformation is involved, the setup is quasi-behavioral. The data must be mapped to a new process time structure that satisfies multiple policy and operational goals. First, the minimum process time informed from the data analysis (1 day) is not tenable, and it is requisite that this minimum will rise to allow DHS diligence in the adjudicative process. DHS analysis reveals that the data structure for the (c)(8) EAD current process time is positively skewed, with a mean that is larger than the median. Since the potential cluster will be around 90 days, which is near the upper window of 120 days, the data structure will need to be recentered near the upper segment and negatively skewed and bounded to 120. It is noted that the actual upper bound may be more than 120 days, but it is a necessary feature of the model that we employ, which we will address downstream. Additionally, DHS seeks consistency in adjudications and therefore a lower variance is a goal.

This part of the methodology development is technical in nature, and while some details are provided here, the technical appendix accompanying this rulemaking walks through the steps of the estimation procedures in detail. Specifically, DHS began by attempting to scale the process times to satisfy the upper bound, using simple and common transformation procedures utilized in multidisciplinary work. While these methods are not directly set up to bound data to an upper level, DHS was able to adjust the algorithms to satisfy the upper bound, but the results were not tenable for other reasons. Because of the inadequacies applicable the two common procedures, DHS next employed the logistic functional form, which is the benchmark to model growth patterns across a number of natural and medical sciences. It has also been a key development practice in the propagation and training of deep learning networks. As it relates to deep learning networks, the logistic form is utilized as a data transformation tool, and offers a setup that directly bounds an upper limit. However, trial runs based on its general and scalable form did not produce tenable results. In summary, the transformed process times gravitated to a specific value, which is a result of a technically involved issue known as a vanishing gradient.

Because of the untenable results noted above, out of necessity DHS turned to a newer type of function that incorporates a logistic form into a more flexible but also complex configuration. This form is a hyperbolastic equation of Type 1, denoted “H1” employs three tuning parameters and nests the inverse hyperbolic sine (ASINH) in the exponential term of the logistic equation. The tuners are obtained by trial and error, not by a rule-base method. For the future process times, the calibration of tuner settings employed in H1 has accomplished the stated objectives; the minimum EAD process time increased to 24 days; the data cluster in the upper tail (median=90) which is greater than the mean, indicating the distribution has been recentered and skewed leftward, and the variance (as measured by the standard deviation) has declined from 41.5 to 28.3, which is reduction of almost a third (31.8 percent).

For every case, DHS calculated the past wait time (WTP) for an EAD from the data set and a future wait (WTF) from the model developed above and then calculated the wait time difference (WTD). DHS mapped the current process time for their (c)(8) EAD to a new one. The resultant analysis suggests that almost all (98.1 percent) would experience a longer wait time under the proposed provisions of the rule, with a median of 216 days, and a small share (1.9 percent) could experience shortened wait time and gain earnings time, as WTP > WTF (the range for the shorter wait times is 1 day to 98 days, with a median of 34 days). To extend these results to the population, DHS set up the earnings delay as positive figures and the gains as negatives, to express net effects and incorporated the WTD according to its distribution and parameters.