Read More Analysis on the Senate Immigration Bill
This week, the U.S. Senate proposed a bipartisan piece of legislation that was intended to “strengthen border security” in exchange for funding to assist Ukraine and Israel in their respective war efforts. The problem with the legislation? As my colleague Andrew R. Arthur discussed here in detail: The bill proposes almost no reforms to end existing and well-known “pull factors” for illegal immigration in the asylum system.
Even more puzzling, the proposal appears to want to strengthen a handful of these pull factors by requiring the U.S. Department of Homeland Security (DHS) to quickly release migrants who are placed into the bill’s new asylum adjudication process into the interior of the United States and allow them to apply for work authorization documents (EAD), in some cases, immediately after the submission of an asylum claim.
Specifically, the bill provides that applicants who receive a fear screening (called a “positive review determination interview”) and are determined by an asylum officer to warrant a “positive protection determination” become immediately eligible for work authorization. (It’s worth noting that the bill sets no standard of proof or benchmark for what an alien needs to demonstrate to an asylum officer during their “positive review determination interview” in order to receive a positive determination. The American public must, under this proposal, trust that the administration will guide asylum officers to make the right decision since the law sets no standard.)
An applicant with a “positive protection determination” will then be referred to what is called a “protection merits interview” in front of another U.S. Citizenship and Immigration Services (USCIS) asylum officer for a final decision on the alien’s asylum claim. (Reader, please note how both U.S. Immigration and Customs Enforcement (ICE) prosecutors and immigration judges are entirely cut out of this process, leaving the decision-making authority in these cases to USCIS employees only and removing all transparency from the public regarding how these decisions are made.)
Applicants whose claims do not pass this screening, however, may still receive work authorization in limited circumstances. To get “another bite of the apple”, the bill allows aliens to formally request asylum officers to “reconsider” their case or, for a third bite, they can appeal the determination decision and request de novo review of their claims by a new “Protection Appellate Board” created by this bill. Additionally, if DHS fails to conduct their “positive review determination interview” within 90 days, the screening is waived, the applicant will be released into the interior of the United States, become eligible for work authorization, and be referred to a “protection merits interview” for a final decision on their asylum claim.
Work authorization granted under these new provisions would be valid for two years and may be renewed. The bill contains no language requiring USCIS to terminate the validity of an EAD if an asylum applicant’s application is ultimately denied.
Arthur also discussed how the legislation allows asylum officers to grant asylum in certain cases without a “protection merits interview”, thereby lowering the standard for asylum eligibility generally. These aliens, of course, would also become immediately authorized to work incident to their new asylee status and may work in the United States indefinitely.
The idea that work authorization availability serves as a strong incentive for an alien to file a fraudulent or frivolous asylum application is not a new one. The U.S. Department of Justice (DOJ) first imposed a waiting period for asylum applicants to be eligible to apply for work authorization in 1994, following enactment of new legislation, the Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA, Public Law 103–322, 108 Stat. 1796 (Sept. 13, 1994)). This law provided for expedited exclusion proceedings and summary deportation of aliens with denied asylum. It also made employment authorization for asylum applicants discretionary rather than guaranteed, giving the attorney general (now the secretary of Homeland Security) the ability to deny employment authorization requests as a matter of discretion. As DHS explained in a 2020 Federal Register notice, Congress passed the VCCLEA “mainly because the asylum system was being overwhelmed with asylum claims, including frivolous and fraudulent claims filed merely to obtain employment authorization”.
DOJ’s initial waiting period, which was set at 150 days, was based on processing times that were considered reasonable at the time. Accordingly, both Congress and DOJ’s goal was to limit the number of EADs awarded as a result of a pending application. Asylum applicants who were not expeditiously removed or who received a grant of asylum, on the other hand, would be authorized to work in the United States.
The waiting-period policy was increased and codified into statute in 1996 when Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA, Public Law 104–208, 110 Stat. 3009). With IIRIRA, Congress further strengthened the expedited removal process and increased the mandatory waiting period to apply for an EAD to a minimum of 180 days (among other reforms designed to deter illegal immigration). Importantly, it also gave the now-secretary of Homeland Security the ability to increase the asylum EAD waiting period as he or she determined to be appropriate.
Under this framework, the Trump administration promulgated a regulation to increase the waiting period to 365 days to address the 2019 border crisis and reflect processing times given contemporary backlogs. At the time, DHS explained, “The current practice of granting employment authorization to aliens before they have been determined eligible for asylum is a ‘pull’ factor for the illegal immigration of aliens who are ineligible for any immigration status or benefit in the United States, and there is an urgent need for reform. Employment authorization for foreign nationals seeking asylum is not a right. It is a benefit which must be carefully implemented in order to benefit those it is meant to assist.” (Citations omitted.) This regulation, however, was vacated by the U.S. District Court for the District of Columbia. The ruling was not appealed, and the policy was formally abandoned by the Biden administration in 2022.