The Center for Immigration Studies (CIS) submitted a comment on the U.S. Department of Homeland Security’s (DHS) proposal to change its regulations governing how U.S. Citizenship and Immigration Services (USCIS) issues work permits (formally known as employment authorization documents or EADs) to aliens who have pending applications for asylum. Current law allows applicants with applications pending for more than 180 days to receive work authorization in the United States.
Specifically, in addition to other changes, the rule would:
- Increase the minimum time an applicant must wait to receive an asylum-based EAD from 180 days (the statutory minimum) to 365 days;
- Require USCIS to pause accepting asylum-based EAD applications when processing times for affirmative asylum cases exceed 180 days (currently, the average processing time for an affirmative asylum case is 1,278 days);
- Require all asylum-based EAD applicants (including renewal applicants) to submit biometrics;
- Bar aliens who are prima facie ineligible to receive asylum from receiving an asylum-based EAD; and
- Require USCIS to prioritize the adjudication of an alien’s asylum application if an immigration officer discovers information during the alien’s EAD application adjudication that would render the alien ineligible for asylum.
If finalized, this rule will impact both defensive asylum applicants (including from aliens who make credible fear claims at the border) and affirmative asylum applicants (aliens who apply for asylum directly with USCIS, not as a defense to removal).
DHS explained that the proposals are being considered as measures to reduce the historic backlogs and address systematic flaws that encourage fraud and abuse in the program. “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 [an asylum-based] 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 currently faces a 1.45 million-case backlog in its affirmative asylum portfolio — a historic high. In FY 2022, FY 2023, and FY 2024, 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. DHS now also reports that an alien who filed an asylum application in the first quarter of FY 2025 should expect USCIS to take 765.75 months, or 63 years to adjudicate their application.
As of the first quarter of FY 2026, the immigration court (defensive) asylum backlog is over 2.4 million cases. Many of these applicants will wait numerous years, in some cases more than a decade, before their first immigration court hearing.
USCIS adjudicators are also generally facing growing EAD application workloads. USCIS reported that at the beginning of FY 2026, it had a total of 1,046,156 pending initial EAD applications (including all EAD categories, not just asylum-related), with 136,932 of those pending applications in category (c)(8) (derived from a pending asylum application). This does not include the 679,822 total pending renewal applications (all categories), of which 111,461 derived from asylum applicants with pending cases. The agency also reported that 556,798 initial EAD applications and 395,519 renewal applications had been pending with the agencies for more than 180 days.
In our comment, CIS generally supported DHS’s proposal, but suggested additional measures the agency could implement to reduce fraud, restore integrity, and increase adjudicatory efficiencies in the asylum program. You can read CIS’s comment here.