DHS Changes Rules for Asylum Work Permit Applications

Would deter frivolous applications and rubber-stamping; more changes to follow

By Andrew R. Arthur on June 23, 2020
  • DHS issued a Final Rule on Monday modifying the regulation governing the time frames by which USCIS must adjudicate initial applications for employment authorization (colloquially known as work permits) filed by aliens seeking asylum, and by which aliens can request renewal of such "(c)(8) employment authorization".
  • The Final Rule removes the 30-day deadline by which USCIS was required to adjudicate initial (c)(8) applications. That deadline was created in 1997, when the then-INS received 52,217 affirmative asylum applications. By FY 2017, in contrast, USCIS received 141,638 such applications.
  • In FY 2013, USCIS received 41,021 initial applications for (c)(8) employment authorization. By FY 2019, the number of initial receipts had jumped to 216,038.
  • Although USCIS does not charge a fee for those initial (c)(8) applications, and despite the massive increase in such applications, in FY 2017 a federal district-court judge issued an injunction requiring USCIS to adjudicate those applications within the 30-day regulatory deadline.
  • The elimination of the 30-day deadline will discourage aliens from filing frivolous asylum applications after entering the United States illegally or overstaying their temporary nonimmigrant admissions in the hopes of living and working here indefinitely. It would also relieve USCIS from having to rubber-stamp (c)(8) applications.
  • The Final Rule also eliminates a requirement that aliens with (c)(8) authorization file for renewal within 90 days of the date of expiration, in line with earlier regulatory amendments.
  • On Friday, DHS will publish a separate Final Rule containing additional regulations relating to the issuance of a (c)(8) employment authorization, that will extend the wait time before an asylum applicant can apply for employment authorization from 150 days to 365 calendar days.

On Monday, the Department of Homeland Security (DHS) issued a Final Rule modifying the current regulation governing applications for employment authorization by aliens seeking asylum. DHS therein removes a requirement that U.S. Citizenship and Immigration Services (USCIS) adjudicate or grant those applications within 30 days, and also removes a requirement that asylum applicants granted employment authorization file for renewal of those grants within 90 days of expiration of their employment authorizations. The modified regulation recognizes the reality of the burdens that USCIS faces, removes incentives for aliens to enter illegally or overstay, and clarifies the time frame for renewals, but expect more changes to follow.

By way of background, under 8 C.F.R. § 274A.12(c)(8), asylum applicants may request employment authorization if their asylum applications have not been adjudicated within 150 days, or if they have been recommended for approval but have not yet received a grant of asylum or withholding of deportation. Such employment authorization is known as "(c)(8) employment authorization". If any alien is granted employment authorization (including (c)(8)), the alien receives an Employment Authorization Document (Form I-766, or "EAD", commonly known as a work permit).

Monday's modification does not change that process (yet, as I explain below).

Within the regulations pertaining to asylum is the process for aliens to apply for, and USCIS to grant, (c)(8) employment authorization. Specifically, 8 C.F.R. § 208.7(a) (initially promulgated more than 23 years ago), gives USCIS 30 days to adjudicate those applications.

In July 2018, a judge in the U.S. District Court for the Western District of Washington issued an injunction in Gonzalez-Rosario v. USCIS ordering USCIS to adjudicate (c)(8) employment applications within that 30-day deadline.

A lot has changed in the 23 years since that 30-day deadline was created, however. In FY 1997, 52,217 affirmative asylum applications were filed with the then-Immigration and Naturalization Service (INS). By FY 2017, in contrast, USCIS received 141,638 such applications. As of February 2020, roughly 339,000 asylum applications were pending with USCIS.

In FY 1997, INS received 1,438 credible fear referrals (finding credible fear in 922), a number that grew to 99,035 by FY 2018 (when it found credible fear in 74,877 cases). Each of those aliens is eligible to file an asylum application with an immigration judge in removal proceedings.

In FY 2009, 35,690 defensive asylum applications were filed with the immigration courts (23,571 of which had originated with USCIS). By FY 2018, that number had grown to 159,590 applications, of which 48,854 originated with USCIS.

Each of those aliens is eligible to apply for (c)(8) employment authorization if their applications have not been adjudicated (either by USCIS or an immigration judge) within 150 days. And, under the injunction in Gonzalez-Rosario, USCIS has only 30 days to adjudicate those (c)(8) applications. This is a problem for USCIS — which is largely funded by the fees it collects — given the fact that there is no fee to apply for asylum or for an initial (c)(8) authorization (renewals cost $410).

In FY 2013, USCIS received 41,021 initial applications for (c)(8) employment authorization, and 37,861 applications for renewal (78,882 receipts in total). The number of initial receipts jumped to 216,038 by FY 2019, and the number of renewals was 335,188 (551,226 in total). Again, USCIS cannot charge a fee for those initial (c)(8) applications, so it cannot ramp up its workforce to adjudicate the increase without charging other applicants more.

The asylum backlog itself, and the 30-day (c)(8) adjudication deadline, has created perverse incentives for the filing of frivolous applications. In her FY 2018 Annual Report, the USCIS Ombudsman noted:

The growing backlog of affirmative asylum filings has lengthened processing times. Applications now often remain pending for well over a year, depending on the jurisdiction, before asylum seekers are even interviewed. This is long beyond the 180-day adjudication time frame specified in the statute. The Asylum Division surmises that this long wait has incentivized individuals to claim asylum in order to obtain work authorization. ... USCIS presumes the backlog has created an incentive to apply for asylum — without a strong case, or even fraudulently, for the purpose of obtaining an EAD while the delays continue.

Given the fact that there are approximately 10.5 million to 12 million aliens illegally present in the United States, and that it is much easier (and more lucrative) for an alien to work with employment authorization than without, that analysis makes both factual and economic sense.

Eliminating the 30-day deadline for USCIS to adjudicate those (c)(8) applications will remove some of the incentives for aliens to (1) enter the United States illegally hoping to live and work here permanently by claiming credible fear or avoiding apprehension; and (2) enter the United States legally on a nonimmigrant visa and overstay for the same reasons. It will also make it less likely that USCIS will simply "rubber-stamp" such applications to comply with the regulatory time frames and the Gonzalez-Rosario injunction.

Of course, the modifications to the (c)(8) regulation will mean that some applicants will not be able to accept specific job offers, as the Final Rule for that modification (which contains a significant economic analysis) recognizes. But, as it states: "A portion of this lost compensation might be transferred from asylum applicants to others that are currently in the U.S. labor force, possibly in the form of additional work hours or overtime pay."

Or those employers might simply hire American workers — both citizens and aliens with employment authorization — instead. Given the fact that the unemployment rate in the United States (as of May) was 13.3 percent, there are likely a significant number of American workers who are available to fill those jobs.

The regulation as modified also removes the 90-day deadline for aliens with (c)(8) authorization to apply for renewal with USCIS. The Final Rule explains: "The technical change removing the 90-day filing requirement is expected to reduce confusion regarding EAD renewal requirements for pending asylum applicants and ensure the regulatory text reflects current DHS policy and regulations under DHS's final 2017 AC21 Rule."

In the 2017 AC21 Rule, USCIS amended the regulations to automatically extend the validity period for an expiring EAD by not more 180 days where the alien has properly filed an application for renewal and will remain eligible for employment authorization (the filing receipt is proof of the extension). As a practical matter, the regulatory modifications in Monday's Final Rule will allow aliens with (c)(8) authorization to apply for renewals in fewer than 90 days before those EADs expire. I would advise aliens to continue to comply with the 90-day rule, to ensure they receive the receipt.

The modifications to the regulations are effective on August 21, 2020, to give asylum applicants notice of the changes.

Note that on Friday, DHS will publish a Final Rule further modifying the regulations relating to the issuance of (c)(8) employment authorizations. Most pertinently, it will extend the wait time before an asylum applicant can apply for employment authorization from 150 days to 365 calendar days.

I will discuss those new regulations in my next post.