On November 14, 2019, the Department of Homeland Security issued a Notice of Proposed Rulemaking, which, if enacted, would modify the agency's current regulations governing asylum applications, interviews, and eligibility for employment authorization based on a pending asylum application. The primary purposes of the proposed rule are to deter the filing of frivolous asylum claims and to encourage foreign nationals who are coming to the United States in order to apply for asylum to enter through the legal ports of entry, rather than illegally between the ports. It is an overdue proposal.
Under the regulation that governs employment authorization for asylum applicants, 8 C.F.R. § 274A.12(c)(8), as it is currently written, applicants may file a request for 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. U.S. Citizenship and Immigration (USCIS) may not grant employment authorization for an additional 30 days. Such employment authorization for asylum applicants is known as "(c)(8) employment authorization".
Under the proposed rule, asylum applicants would have to wait 365 calendar days from the date they have filed those applications with USCIS (in the case of an affirmative asylum application) or the immigration court within the Executive Office for Immigration Review (EOIR) at the Department of Justice (DOJ) (in the case of a defensive application) to apply for and receive (c)(8) employment authorization. Aliens whose asylum applications are denied by an asylum officer or immigration judge during the 365-day waiting period to apply for (c)(8) authorization, or before a request for authorization has been adjudicated, would be ineligible for that authorization.
Further, under the proposed rule, in cases where the asylum officer refers an asylum applicant's case to immigration court, employment authorization will continue, and the applicant can apply for renewals, unless and until a final decision denying asylum is issued by the immigration judge (IJ). In that scenario, authorization terminates 30 days after such denial, unless the alien appeals the case to the Board of Immigration Appeals (BIA), in which case the applicant can apply for employment authorization until the BIA issues a final decision. An asylum applicant who seeks federal court review of a denial will not be eligible for employment authorization unless the case is remanded to the BIA.
The proposed rule would also make the validity of (c)(8) authorization discretionary, and make clear that neither the initial period of authorization nor any renewal would exceed two years.
In addition, certain categories of asylum applicants would be ineligible for (c)(8) authorization under the proposed rule. First, "aliens who, absent good cause, entered or attempted to enter the United States at a place and time other than lawfully through a U.S. port of entry" would not be eligible for employment authorization under the proposed amendments to section 274A.12(c)(8).
Second, aliens who fail to apply for asylum within one year of their last entry will be ineligible for such employment authorization unless an IJ determines that there is an exception to the one-year filing rule in the applicant's case. Under section 208(a)(1)(B) of the Immigration and Nationality Act (INA), absent changed circumstances, aliens who have failed to apply for asylum within one year of the alien's last arrival in the United States are ineligible to apply for that protection, so this proposed exception in the regulations for (c)(8) authorization would track the INA.
Third, certain other, criminal asylum applicants would be ineligible for (c)(8) authorization. This would include aliens who have been convicted of an aggravated felony; any felony in the United States or serious non-political crime outside of the United States; or have been convicted in the United States of certain public-safety offenses. Those public-safety offenses include crimes involving "domestic violence or assault ... , child abuse or neglect; possession or distribution of controlled substances; or driving or operating a motor vehicle under the influence of alcohol or drugs, regardless of how the offense is classified by the state, local, or tribal jurisdiction." In addition:
USCIS will consider, on a case-by-case basis, whether an alien who has unresolved domestic charges or arrests that involve domestic violence, child abuse, possession or distribution of controlled substances, or driving under the influence of drugs or alcohol, warrant a favorable exercise of discretion for a grant of employment authorization.
It should be noted that aliens who have been convicted of particularly serious crimes (including aggravated felonies) or for whom "there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States" are, under section 208(b) of the INA, ineligible for asylum. In a particularly shrewd move, DHS is "seek[ing] public comment on whether these and additional crimes should be included as bars to employment authorization", in essence placing the burden on immigrant advocates to defend a policy that would require (c)(8) authorization for aggravated felons, child abusers, and those who have been convicted of DUI.
To ensure that aliens convicted of these or other offenses are not granted (c)(8) authorization, the proposed rule would add a biometrics collection requirement into the employment-authorization process. This would only apply to those aliens who are applying for authorization or renewal, and future applicants for authorization or renewal, but not to those aliens who currently have (c)(8) authorization.
Finally, the proposed rule would make it clear that aliens who have been paroled into the United States after a positive credible fear finding can only apply for employment authorization under 8 C.F.R. § 274A.12(c)(8), and not under the regulation that governs employment eligibility for those who have been paroled generally, 8 C.F.R. § 274A.12(c)(11).
In an August 2019 post, I discussed policy changes that USCIS had made to (c)(11) parole employment eligibility to discourage adult aliens from entering the United States illegally with children, as family units or "FMUs". As I stated in that post:
Limiting the probability that FMUs will be immediately eligible for employment authorization after entering the United States illegally will diminish the incentives for them to break U.S. law with impunity, preserve the integrity of the credible-fear process, and reduce the demands on scarce immigration-court resources. By reducing those incentives, the new policy guidance will in turn cut the number of aliens entering this country illegally across the Southwest border, which will allow [Border Patrol (USBP)] and [U.S. Customs and Border Protection (CBP)] as a whole to use its limited resources for other purposes, such as stopping the flow of illegal drugs into the United States, which are wreaking havoc on communities across the nation.
The proposed rule "squares the circle" on that rule, and eliminates redundancies within the regulatory scheme that would allow FMUs and other aliens to, in essence, shop among the various employment authorization categories to find the most advantageous. It would also bolster the proposed regulatory bar against asylum applicants who have entered the United States illegally, and encourage foreign-national FMUs to seek asylum in an orderly fashion at the ports of entry, rather than subjecting themselves and their children to the dangers posed by illegal entry.
On that point, I would underscore the importance of the proposed regulatory change to funneling aliens who are seeking asylum to the ports and away from remote spots along the border between the ports where they would draw down limited Border Patrol resources and imperil themselves (and as noted, their children). As I stated in a separate August 2019 post:
The journey from Central America through Mexico to remote regions of the U.S. border is a dangerous one for the children involved, as well as for their parent. There are credible reports that female parents of minor children have been raped, that many migrants are robbed, and that they and their children are held hostage and extorted for money.
Criminal migrant smuggling organizations are preying upon these desperate populations, encouraging their migration to the border despite the dangers, especially in remote places designed to overwhelm existing USBP infrastructure, and extorting migrants along the way, thereby reaping millions of dollars for themselves and the drug cartels who also charge money to cross the border.
A substantial number of families and children are entering our country in remote areas of the border vs. the [ports of entry (POEs)], enduring dangerous and terrifying crossings in remote desert areas, across rivers, over fences, and through razor wire. These children increasingly require significant personal and medical care that exceeds the ability and capacity of CBP even with their current patchwork of contracted assistance. Despite CBP's creative and humane attempts to care for these children during their confinement, CBP facilities, both at USBP stations and POEs, are grossly inadequate.
Moreover, by extending the period of time that an alien must wait for (c)(8) authorization, DHS will cut down on the number of bogus asylum claims that it receives, making it easier for asylum officers to grant meritorious cases, cutting the backlog at the immigration courts, and restoring integrity to the asylum system.
As USCIS stated in a November 13, 2019, press release:
The proposed rule stems from the April 29, 2019, Presidential Memorandum on Additional Measures to Enhance Border Security and Restore Integrity to Our Immigration System, which emphasizes that it is the policy of the United States to manage humanitarian immigration programs in a safe, orderly manner and to promptly deny benefits to those who do not qualify. Nothing in this rule changes eligibility requirements for asylum. Instead, this rule strengthens the standards that allow an alien to work on the basis of a pending asylum application.
"Our immigration system is in crisis. Illegal aliens are gaming our asylum system for economic opportunity, which undermines the integrity of our immigration system and delays relief for legitimate asylum seekers in need of humanitarian protection," said Acting Director Ken Cuccinelli. "USCIS must take steps to address pull factors encouraging aliens to illegally enter the United States and exploit our asylum framework. These proposed reforms are designed to restore integrity to the asylum system and lessen the incentive to file an asylum application for the primary purpose of obtaining work authorization."
Ensuring that aliens who are truly fleeing persecution receive asylum as quickly as possible (and hopefully well within the 365-day window) should be a priority under the immigration laws. Not only does it allow them to start their lives anew in the United States free from fear, but it also allows them to petition for their family members to come to the United States. Many of those family members share the same fears of persecution, or fear persecution because of their relationship to the primary applicant. Getting them out of harm's way as quickly as possible is key to protecting them as well.
Anyone who is familiar with the asylum process knows about the so-called "asylum clock", a complicated series of rules that currently governs when an asylum applicant is eligible to apply for and be granted (c)(8) authorization. DHS's proposal for resetting the clock to root out frivolous claims and curb illegal entries is long overdue. As I have said before in other contexts, though, better late than never.
And speaking of clocks, comments and other materials relating to the proposed rule are due on or before January 13, 2020.