[Federal Register Volume 84, Number 174 (Monday, September 9, 2019)]
[Proposed Rules]
[Pages 47148-47170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19125]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 84, No. 174 / Monday, September 9, 2019 / 
Proposed Rules  

[[Page 47148]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 208

[CIS No. 2617-18; DHS Docket No. USCIS-2018-0001]
RIN 1615-AC19


Removal of 30-Day Processing Provision for Asylum Applicant-
Related Form I-765 Employment Authorization Applications

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Department of Homeland Security (DHS) proposes to remove a 
regulatory provision stating that U.S. Citizenship and Immigration 
Services (USCIS) has 30 days from the date an asylum applicant files 
the initial Form I-765, Application for Employment Authorization (EAD 
application) to grant or deny that initial employment authorization 
application. DHS also proposes to remove the provision requiring that 
the application for renewal must be received by USCIS 90 days prior to 
the expiration of the employment authorization.

DATES: Written comments and related material must be submitted on or 
before November 8, 2019.

ADDRESSES: You may submit comments on the entirety of this proposed 
rule package, to include any proposed information collection 
requirements, which is identified as DHS Docket No. USCIS-2018-0001, by 
any one of the following methods:
     Federal eRulemaking Portal (preferred): http://www.regulations.gov. Follow the website instructions for submitting 
comments.
     Mail: Samantha Deshommes, Chief, Regulatory Coordination 
Division, Office of Policy and Strategy, U.S. Citizenship and 
Immigration Services, Department of Homeland Security, 20 Massachusetts 
Avenue NW, Mailstop #2140, Washington, DC 20529-2140. To ensure proper 
handling, please reference DHS Docket No. USCIS-2018-0001 in your 
correspondence. Mail must be postmarked by the comment submission 
deadline. Please note that USCIS cannot accept any comments that are 
hand delivered or couriered. In addition, USCIS cannot accept mailed 
comments contained on any form of digital media storage devices, such 
as CDs/DVDs and USB drives.

FOR FURTHER INFORMATION CONTACT: Daniel Kane, Branch Chief, Service 
Center Operations, U.S. Citizenship and Immigration Services (USCIS), 
DHS, 20 Massachusetts NW, Washington, DC 20529-2140; telephone: 202-
272-8377.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation
II. Executive Summary
    A. Purpose of the Regulatory Action
    B. Legal Authority
    C. Costs and Benefits
III. Background and Discussion of Proposed Rule
    Processing of Applications for Employment Authorization 
Documents
    1. Elimination of 30-Day Processing Timeframe
    2. Removal of the 90-Day Filing Requirement
    3. Corresponding U.S. Department of Justice (DOJ) Regulations
IV. Statutory and Regulatory Requirements
    A. Executive Orders 12866 (Regulatory Planning and Review) and 
13563 (Improving Regulation and Regulatory Review)
    1. Summary
    2. Background and Purpose of the Proposed Rule
    3. Population
    4. Transfers, Costs and Benefits of This Proposed Rule
    B. Regulatory Flexibility Act
    C. Congressional Review Act
    D. Unfunded Mandates Reform Act of 1995
    E. Executive Order 13132 ((Federalism)
    F. Executive Order 12988 (Civil Justice Reform)
    G. Paperwork Reduction Act
    H. Family Assessment
    I. Executive Order 13175
    J. National Environmental Policy Act (NEPA)
    K. National Technology Transfer and Advancement Act
    L. Executive Order 12630
    M. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    N. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
V. List of Subjects and Regulatory Amendments

Table of Abbreviations

BCU Background Check Unit
CFDO Center Fraud Detection Operations
CFR Code of Federal Regulations
DHS Department of Homeland Security
EAD Employment Authorization Document
INA Immigration and Nationality Act
HSA Homeland Security Act of 2002
USCIS U.S. Citizenship and Immigration Services

I. Public Participation

    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 supports such recommended changes.
    Instructions: If you submit a comment, you must include the agency 
name (U.S. Citizenship and Immigration Services) and the DHS Docket No. 
USCIS-2018-0001 for this rulemaking. Please note that DHS is also 
pursuing a separate rulemaking entitled ``Asylum Application, 
Interview, and Employment Authorization for Applicants,'' RIN 1615-
AC27, DHS Docket No. USCIS-2019-0011 (``broader asylum EAD NPRM''), 
separate from this NPRM. The two rulemakings include distinct 
proposals. For this proposed rule, DHS will only consider comments 
submitted to Docket No. USCIS-2018-0001. Please ensure that you submit 
your comments to the correct docket.
    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 they 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 that you make to DHS. DHS may

[[Page 47149]]

withhold information provided in comments from public viewing if it 
determines that it may impact the privacy of an individual or is 
offensive. For additional information, please read the Privacy and 
Security Notice, which is 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-2018-0001. 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.

II. Executive Summary

A. Purpose of the Regulatory Action

    DHS is proposing to eliminate the regulation articulating a 30-day 
processing timeframe for USCIS to adjudicate initial Applications for 
Employment Authorization (Forms I-765 or EAD applications) for asylum 
applicants. This change is intended to ensure USCIS has sufficient time 
to receive, screen, and process applications for an initial grant of 
employment authorization based on a pending asylum application. This 
change will also reduce opportunities for fraud and protect the 
security-related processes undertaken for each EAD application. DHS is 
also proposing to remove the provision requiring that the application 
for renewal must be received by USCIS 90 days prior to the expiration 
of their employment authorization. This change is intended to align 
existing regulatory text with DHS policies implemented under the 
Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program 
Improvements Affecting High-Skilled Nonimmigrant Workers final rule, 82 
FR 82398, 82457 (2017 AC21 Rule), which became effective January 17, 
2017.

B. Legal Authority

    The authority of the Secretary of Homeland Security (Secretary) for 
these regulatory amendments is found in various sections of the 
Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and the 
Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 
2135, 6 U.S.C. 101 et seq. General authority for issuing the 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 to establish such regulations as she deems 
necessary for carrying out such authority. Further authority for the 
regulatory amendment in the final rule is found in section 208(d)(2) of 
the INA, 8 U.S.C. 1158(d)(2), which states an applicant for asylum is 
not entitled to employment authorization, and may not be granted asylum 
application-based employment authorization prior to 180 days after 
filing of the application for asylum, but otherwise authorizes the 
Secretary to prescribe by regulation the terms and conditions of 
employment authorization for asylum applicants.

C. Costs and Benefits

    DHS proposes to remove the requirement to adjudicate initial EAD 
applications for pending asylum applicants within 30 days. In FY 2017, 
prior to the Rosario v. USCIS court order, the adjudication processing 
times for initial Form I-765 under the Pending Asylum Applicant 
category exceeded the regulatory set timeframe of 30 days more than 
half the time. However, USCIS adjudicated approximately 78 percent of 
applications within 60 days. In response to the Rosario v. USCIS 
litigation and to comply with the court order, USCIS has dedicated as 
many resources as practicable to these adjudications, but continues to 
face a historic asylum application backlog, which in turn increases the 
numbers of applicants eligible for pending asylum EADs. However, USCIS 
does not want to continue this reallocation of resources as a long-term 
solution because it removes resources from other competing work 
priorities in other product lines and adds delays to other time-
sensitive adjudication timeframes. USCIS could hire more officers, but 
has not estimated the costs of this and therefore has not estimated the 
hiring costs that might be avoided if this proposed rule were adopted. 
Hiring more officers would not immediately and in all cases shorten 
adjudication timeframes because (1) additional time would be required 
to onboard and train new employees, and (2) for certain applications, 
additional time is needed to fully vet an applicant, regardless of 
staffing levels.
    In addition, USCIS has also not estimated the cost impacts that 
hiring additional officers could have on the agency's form fees. There 
is currently no fee for asylum applications or the corresponding 
initial EAD applications,\1\ and the cost to the agency for 
adjudication is covered by fees paid by other benefit requesters. USCIS 
is not certain of the actual cost impacts of hiring additional 
adjudicators to process these EAD applications at this time. USCIS 
expects that potentially higher fees might be avoidable if the proposed 
rule is adopted. As a primary goal, USCIS seeks to adequately vet 
applicants and adjudicate applications as quickly and efficiently as 
possible. This proposed rule may delay the ability for some initial 
applicants whose EAD processing is delayed beyond the 30-day regulatory 
timeframe to work.
---------------------------------------------------------------------------

    \1\ On April 29, 2019, President Trump directed DHS to propose 
regulations that would set a fee for an asylum application not to 
exceed the costs of adjudicating the application, as authorized by 
section 208(d)(3) of the INA (8 U.S.C. 1158(d)(3)) and other 
applicable statutes, and would set a fee for an initial application 
for employment authorization for the period an asylum claim is 
pending. See Presidential Memorandum for the Attorney General and 
Secretary of Homeland Security on Additional Measures to Enhance 
Border Security and Restore Integrity to Our Immigration System 
(Apr. 29, 2019), available at https://www.whitehouse.gov/presidential-actions/presidential-memorandum-additional-measures-enhance-border-security-restore-integrity-immigration-system/ (last 
visited June 26, 2019). The implementation of the President's 
directive would take place via a separate rulemaking, but it is 
uncertain whether it would reduce the overall resource burden 
associated with the 30-day adjudication timeframe.
---------------------------------------------------------------------------

    The impacts of this rule are measured against a baseline. This 
baseline is the best assessment of the way the world would look absent 
this proposed action. For this proposed action, USCIS assumes that in 
the absence of this proposed rule the baseline amount of time that 
USCIS would take to adjudicate would be 30 days. USCIS also assumes 
that if this proposed rule is adopted, adjudications will align with 
DHS processing times achieved in FY 2017 (before the Rosario v. USCIS 
court order). This is our best estimate of what would occur if the 
proposed rule is adopted. USCIS believes the FY 2017 timeframes are 
sustainable and USCIS intends to meet these timeframes if the proposed 
rule is adopted. Therefore, USCIS is analyzing the impacts of this rule 
by comparing the costs and benefits of adjudicating initial EAD 
applications for pending asylum applications within 30 days compared to 
the actual time it took to adjudicate these EAD applications in FY 
2017.
    The impacts of this rule would include both distributional effects 
(which are transfers) and costs.\2\ The distributional impacts would 
fall on the asylum applicants who would be delayed in entering the U.S. 
labor force. The distributional impacts (transfers) would be in the 
form of lost compensation (wages and benefits). A portion of this lost 
compensation might be transferred from asylum applicants to others that 
are currently in the U.S.

[[Page 47150]]

labor force, possibly in the form of additional work hours or overtime 
pay. A portion of the impacts of this rule would also be borne by 
companies that would have hired the asylum applicants had they been in 
the labor market earlier but were unable to find available workers. 
These companies would incur a cost, as they would be losing the 
productivity and potential profits the asylum applicant would have 
provided had the asylum applicant been in the labor force earlier. 
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 reasonable substitutes for the labor 
the asylum applicants would have provided, this rule would primarily be 
a cost to these companies through lost productivity and profits. USCIS 
uses the lost compensation 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.
---------------------------------------------------------------------------

    \2\ Transfer payments are monetary payments from one group to 
another that do not affect total resources available to society. See 
OMB Circular A-4 pages 14 and 38 for further discussion of transfer 
payments and distributional effects. Circular A-4 is available at: 
https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf.
---------------------------------------------------------------------------

    The lost compensation to asylum applicants could range from $255.88 
million to $774.76 million annually depending on the wages the asylum 
applicant would have earned. The ten-year total discounted lost 
compensation to asylum applicants at 3 percent could range from 
$2,182.68 million to $6,608.90 million and at 7 percent could range 
from $1,797.17 million to $5,441.62 million (years 2019-2028). USCIS 
recognizes that the impacts of this proposed rule could be overstated 
if the provisions in the broader asylum EAD NPRM are finalized as 
proposed. Specifically, the broader asylum EAD NPRM would limit or 
delay eligibility for employment authorization for certain asylum 
applicants.\3\ Accordingly, if the population of aliens is less than 
estimated as a result of the broader asylum EAD rule, the estimated 
impacts of this rule could be overstated because the population 
affected may be lower than estimated in this rule.
---------------------------------------------------------------------------

    \3\ Among other proposed changes, the broader asylum EAD NPRM 
would implement a Presidential directive related to employment 
authorization for asylum applicants. On April 29, 2019, President 
Trump directed DHS to propose regulations that would bar aliens who 
have entered or attempted to enter the United States unlawfully from 
receiving employment authorization before any applicable application 
for relief or protection from removal has been granted, and to 
ensure immediate revocation of employment authorization for aliens 
who are denied asylum or become subject to a final order of removal. 
See Presidential Memorandum for the Attorney General and Secretary 
of Homeland Security on Additional Measures to Enhance Border 
Security and Restore Integrity to Our Immigration System (Apr. 29, 
2019), available at https://www.whitehouse.gov/presidential-actions/presidential-memorandum-additional-measures-enhance-border-security-restore-integrity-immigration-system/ (last visited June 26, 2019). 
See also Unified Agenda of Regulatory and Deregulatory Actions, RIN 
1615-AC27 (Spring 2019), available at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201904&RIN=1615-AC27 (last visited 
Aug. 7, 2019) (``The Department of Homeland Security (DHS) plans to 
propose regulatory amendments intended to promote greater 
accountability in the application process for requesting employment 
authorization and to deter the fraudulent filing of asylum 
applications for the purpose of obtaining Employment Authorization 
Documents (EADs).'').
---------------------------------------------------------------------------

    In instances where a company cannot hire replacement labor for the 
position the asylum applicant would have filled, USCIS acknowledges 
that such delays may result in tax losses to the government. It is 
difficult to quantify income tax losses because individual tax 
situations vary widely \4\ but USCIS estimates the potential loss to 
other employment tax programs, namely Medicare and social security 
which have a combined tax rate of 7.65 percent (6.2 percent and 1.45 
percent, respectively).\5\ With both the employee and employer not 
paying their respective portion of Medicare and social security taxes, 
the total estimated tax loss for Medicare and social security is 15.3 
percent. \6\ Lost wages ranging from $255.88 million to $774.76 million 
would result in employment tax losses to the government ranging from 
$39.15 million to $118.54 million.\7\ Again, depending on the 
circumstances of the employee, there could be additional federal income 
tax losses not estimated here. There may also be state and local income 
tax losses that would vary according to the jurisdiction.
---------------------------------------------------------------------------

    \4\ See More than 44 percent of Americans pay no federal income 
tax (September 16, 2018) available at https://www.marketwatch.com/story/81-million-americans-wont-pay-any-federal-income-taxes-this-year-heres-why-2018-04-16.
    \5\ The various employment taxes are discussed in more detail at 
https://www.irs.gov/businesses/small-businesses-self-employed/understanding-employment-taxes. See IRS Publication 15, Circular E, 
Employer's Tax Guide for specific information on employment tax 
rates. https://www.irs.gov/pub/irs-pdf/p15_18.pdf.
    \6\ Calculation: (6.2 percent social security + 1.45 percent 
Medicare) x 2 employee and employer losses = 15.3 percent total 
estimated tax loss to government.
    \7\ Calculations: Lower bound lost wages $255.88 million x 15.3 
percent estimated tax rate = $39.15 million.
    Upper bound lost wages $774.76 million x 15.3 percent estimated 
tax rate = $118.54 million.
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    This proposed rule would result in reduced opportunity costs to the 
Federal Government. Since Rosario compelled USCIS to comply with the 
30-day provision in FY 2018, USCIS has redistributed its adjudication 
resources to work up to full compliance. If the 30-day timeframe is 
removed, these redistributed resources could be reallocated, 
potentially reducing delays in processing of other applications, and 
avoiding costs associated with hiring additional employees. USCIS has 
not estimated these avoided costs. Additionally, USCIS does not 
anticipate that removing the separate 90-day EAD filing requirement 
would result in any costs to the Federal Government.
    The proposed rule would benefit USCIS by allowing it to operate 
under long-term, sustainable case processing times for initial EAD 
applications for pending asylum applicants, to allow sufficient time to 
address national security and fraud concerns, and to maintain 
technological advances in document production and identity 
verification. Applicants would rely on up-to-date processing times, 
which provide accurate expectations of adjudication times.
    The proposed technical change to remove the 90-day filing 
requirement would 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.\8\
---------------------------------------------------------------------------

    \8\ In the 2017 AC21 final rule, 81 FR 82398, USCIS amended 8 
CFR 274a.13 to allow for the automatic extension of existing, valid 
EADs for up to 180 days for renewal applicants falling within 
certain EAD categories as described in the regulation and designated 
on the USCIS website. See 8 CFR 274a.13(d). Among those categories 
is asylum applicants. To benefit from the automatic extension, an 
applicant falling within an eligible category must (1) properly file 
his or her renewal request for employment authorization before its 
expiration date, (2) request renewal based on the same employment 
authorization category under which the expiring EAD was granted, and 
(3) will continue to be authorized for employment based on his or 
her status, even after the EAD expires and is applying for renewal 
under a category that does not first require USCIS to adjudicate an 
underlying application, petition, or request.

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[[Page 47151]]

    Table 1 provides a detailed summary of the regulatory changes and 
the expected impacts of this proposed rule.

                               Table 1--Summary of Proposed Provisions and Impacts
----------------------------------------------------------------------------------------------------------------
                    Proposed change to   Expected costs and transfers from     Expected benefits from proposed
 Current provision       provision               proposed provision                       provision
----------------------------------------------------------------------------------------------------------------
USCIS has a 30-day  USCIS proposes to   Quantitative:                        Quantitative:
 EAD adjudication    eliminate the      This provision could delay the       Not estimated.
 timeframe for       provisions for      ability of some initial applicants
 applicants who      the 30-day          to work. A portion of the impacts
 have pending        adjudication        of the rule would be the lost
 asylum              timeframe and       compensation transferred from
 applications.       issuance of EADs    asylum applicants to others
                     for pending         currently in the workforce,
                     asylum              possibly in the form of additional
                     applicants.         work hours or overtime pay. A
                                         portion of the impacts of the rule
                                         would be lost productivity costs
                                         to companies that would have hired
                                         asylum applicants had they been in
                                         the labor market, but who were
                                         unable to find available workers.
                                         USCIS uses the lost compensation
                                         to asylum applicants as a measure
                                         of these distributional impacts
                                         (transfers) and as a proxy for
                                         businesses' cost for lost
                                         productivity. The lost
                                         compensation due to processing
                                         delays could range from $255.88
                                         million to $774.76 million
                                         annually. The total ten-year
                                         discounted lost compensation for
                                         years 2019-2028 averages $4,395.79
                                         million and $3,619.40 million at
                                         discount rates of 3 and 7 percent,
                                         respectively. USCIS does not know
                                         the portion of overall impacts of
                                         this rule that are transfers or
                                         costs. Lost wages ranging from
                                         $255.88 million to $774.76 million
                                         would result in employment tax
                                         losses to the government ranging
                                         from $39.15 million to $118.54
                                         million.
                    ..................  Qualitative:                         Qualitative:
                                        There may also be additional         DHS would be able to operate under
                                         distributional impacts for those     long-term sustainable case
                                         in an applicant's support network--  processing times for initial EAD
                                         if applicants are unable to work     applications for pending asylum
                                         legally, they may need to rely on    applicants, to allow sufficient
                                         resources from family members,       time to address national security
                                         friends, non-profits, or             and fraud concerns, and to
                                         government entities for support.     maintain technological advances in
                                                                              document production and identity
                                                                              verification without having to add
                                                                              any resources.
                    ..................  ...................................     This rule would result in
                                                                                 reduced opportunity costs to
                                                                                 the Federal Government. If the
                                                                                 30-day timeframe is removed,
                                                                                 USCIS could reallocate the
                                                                                 resources it redistributed to
                                                                                 comply with the 30-day
                                                                                 provision, potentially reducing
                                                                                 delays in processing of other
                                                                                 applications and avoiding costs
                                                                                 associated with hiring
                                                                                 additional employees.
Applicants can      USCIS proposes to   Quantitative:                        Quantitative:
 currently submit    remove the 90-day  None.                                None.
 a renewal EAD       submission
 application 90      requirement for
 days before the     renewal EAD
 expiration of       applications.
 their current
 EAD.
                    ..................  Qualitative:                         Qualitative:
                                        None.                                Applicants--
                                                                              Reduces confusion
                                                                              regarding EAD renewal
                                                                              requirements. Some confusion may
                                                                              nonetheless remain if applicants
                                                                              consult outdated versions of
                                                                              regulations or inapplicable DOJ
                                                                              regulations.
                                                                             DHS/USCIS--
                                                                              The DHS regulations would
                                                                              be updated to match those of other
                                                                              EAD categories.
----------------------------------------------------------------------------------------------------------------

    As previously discussed, USCIS does not know the portion of overall 
impacts of this rule that are transfers or costs, but estimates that 
the maximum monetized impact of this rule from lost compensation is 
$774.76 million annually. If all companies are able to easily find 
reasonable labor substitutes for the positions the asylum applicant 
would have filled, they will bear little or no costs, so $774.76 
million will be transferred from asylum applicants to workers currently 
in the labor force or induced back into the labor force (we assume no 
tax losses as a labor substitute was found). Conversely, if companies 
are unable to find reasonable labor substitutes for the position the 
asylum applicant would have filled then $774.76 million is the 
estimated maximum monetized cost of the rule and $0 is the estimated 
minimum in monetized transfers from asylum applicants to other workers. 
In addition, under this scenario, because the jobs would go unfilled 
there would be a loss of employment taxes to the Federal Government. 
USCIS estimates $118.54 million as the maximum decrease in employment 
tax transfers from

[[Page 47152]]

companies and employees to the Federal Government. The two scenarios 
described above represent the estimated endpoints for the range of 
monetized impacts resulting from this rule, and are summarized in Table 
2 below.

                                                  Table 2--Summary of Range of Monetized Annual Impacts
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Scenario: No replacement labor       Scenario: All asylum
                                                                            found for asylum applicants   applicants replaced with other  Primary  (half
               Category                           Description            --------------------------------             workers                 of the
                                                                                                         --------------------------------  highest high
                                                                             Low wage        High wage       Low wage        High wage     for each row)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost.................................  Lost compensation used as proxy           $255.88         $774.76           $0.00           $0.00         $387.38
                                        for lost productivity to
                                        companies.
Transfer.............................  Compensation transferred from                0.00            0.00          255.88          774.76          387.38
                                        asylum applicants to other
                                        workers.
Transfer.............................  Lost employment taxes paid to the           39.15          118.54            0.00            0.00           59.27
                                        Federal Government.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As required by OMB Circular A-4, Table 3 presents the prepared A-4 
accounting statement showing the costs and transfers associated with 
this proposed regulation. For the purposes of the A-4 accounting 
statement below, USCIS uses the mid-point as the primary estimate for 
both costs and transfers because the total monetized impact of the rule 
from lost compensation cannot exceed $774.76 million and as described, 
USCIS is unable to apportion the impacts between costs and transfers. 
Likewise, USCIS uses a mid-point for the reduction in employment tax 
transfers from companies and employees to the Federal Government when 
companies are unable to easily find replacement workers. USCIS notes 
that there may be some unmonetized costs such as additional opportunity 
costs to employers that would not be captured in these monetized 
estimates.

                                                Table 3--OMB A-4 Accounting Statement ($ Millions, 2017)
                                                             [Period of analysis: 2019-2028]
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
Category                                              Primary estimate                Minimum         Maximum  Source citation (RIA, preamble, etc.)
                                                                                     estimate        estimate
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Benefits
--------------------------------------------------------------------------------------------------------------------------------------------------------
Monetized Benefits...........................            (7%)             N/A             N/A             N/A  RIA.
                                                         (3%)             N/A             N/A             N/A
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized quantified, but un-monetized,                     N/A                          N/A             N/A  RIA.
 benefits.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unquantified Benefits........................   Applicants would benefit from reduced confusion over renewal   RIA.
                                                requirements. DHS would be able to operate under sustainable
                                               case processing times for initial EAD applications for pending
                                                   asylum applicants, to allow sufficient time to address
                                                    national security and fraud concerns, and to maintain
                                                 technological advances in document production and identity
                                                                        verification.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized monetized costs (discount rate in             (7%)         $387.38              $0         $774.76  RIA.
 parenthesis).
                                                         (3%)         $387.38              $0         $774.76  RIA.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized quantified, but un-monetized,                     N/A                          N/A             N/A  RIA.
 costs.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Qualitative (unquantified) costs.............    In cases where companies cannot find reasonable substitutes   RIA.
                                                  for the labor the asylum applicants would have provided,
                                                  affected companies would also lose profits from the lost
                                                productivity. In all cases, companies would incur opportunity
                                                   costs by having to choose the next best alternative to
                                               immediately filling the job the pending asylum applicant would
                                                  have filled. There may be additional opportunity costs to
                                                               employers such as search costs.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Transfers
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized monetized transfers: ``on budget''            (7%)              $0              $0              $0  RIA.
                                                         (3%)              $0              $0              $0
--------------------------------------------------------------------------------------------------------------------------------------------------------
From whom to whom?...........................                                N/A                               N/A.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized monetized transfers: ``off-                   (7%)         $387.38              $0         $774.76  RIA.
 budget''.
                                                         (3%)         $387.38              $0         $774.76
--------------------------------------------------------------------------------------------------------------------------------------------------------
From whom to whom?...........................   From asylum applicants to workers in the U.S. labor force or   RIA.
                                                induced into the U.S. labor force. Additional distributional
                                                   impacts from asylum applicant to the asylum applicant's
                                                support network that provides for the asylum applicant while
                                                                      awaiting an EAD.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized monetized transfers: ``off-                   (7%)          $59.27              $0         $118.54  RIA.
 budget''.
                                                         (3%)          $59.27              $0         $118.54
--------------------------------------------------------------------------------------------------------------------------------------------------------
From whom to whom?...........................   A reduction in employment taxes from companies and employees   .........................................
                                                to the Federal Government. There could also be a transfer of
                                                        federal, state, and local income tax revenue.
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 47153]]


--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                               Source citation (RIA,
             Category                                                      Effects                                                preamble, etc.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Effects on state, local, and/or     None; no significant impacts to national labor force or to the labor force of          RIA.
 tribal governments.                 individual states is expected. Possible loss of tax revenue.
Effects on small businesses.......  None.................................................................................  RFA.
Effects on wages..................  None.................................................................................  RIA.
Effects on growth.................  None.................................................................................  RIA.
--------------------------------------------------------------------------------------------------------------------------------------------------------

III. Background and Discussion of Proposed Rule

Processing of Applications for Employment Authorization Documents

1. Elimination of 30-Day Processing Timeframe
    Pursuant to 8 CFR 208.7, 274a.12(c)(8), and 274a.13(a)(2), pending 
asylum applicants may request an EAD by filing an EAD application using 
Form I-765. Under current regulations at 8 CFR 208.7(a)(1), USCIS must 
adjudicate initial employment authorization requests under the (c)(8) 
category within 30 days of when the applicant files the Form I-765.\9\ 
The 30-day timeframe in 8 CFR 208.7(a)(1) was established more than 20 
years ago,\10\ when the former Immigration and Naturalization Service 
(INS) adjudicated EAD applications at local INS offices. EAD 
applications are now adjudicated at USCIS Service Centers. As discussed 
below, DHS believes that the 30-day timeframe is outdated, does not 
account for the current volume of applications and no longer reflects 
current operational realities.\11\ Increases in EAD applications for 
pending asylum applicants have outpaced Service Center Operations 
resources over the last twenty years. Additionally, the level of fraud 
sophistication and the threat immigration-related national security 
concerns posed today are more complex than they were 20 years ago. 
Furthermore, changes in intake and document production to reduce fraud 
and address threats to national security, as well as necessary vetting 
to address such concerns, are not reflected in the current regulatory 
timeframe. Thus, DHS proposes to remove this provision. See proposed 8 
CFR 208.7(a)(1). This change is intended to ensure USCIS has sufficient 
time to receive, screen, and process applications for an initial grant 
of employment authorization, based on a pending asylum application. 
This change would also reduce opportunities for fraud and protect the 
security-related processes undertaken for each EAD application.\12\
---------------------------------------------------------------------------

    \9\ The regulations at 8 CFR 208.7(a)(1) currently provide that 
if the asylum application is not denied, USCIS will have 30 days 
from the date of filing of the request for employment authorization 
to grant or deny the employment authorization request. Certain 
events may suspend or restart the 30-day adjudication period. For 
instance, the time between the issuance of a request for evidence 
and the receipt of the response, or a delay requested or caused by 
the applicant, is not counted as part of the 30-day period. 8 CFR 
208.7(a)(2).
    \10\ See Rules and Procedures for Adjudication of Applications 
for Asylum or Withholding of Deportation and for Employment 
Authorization, 59 FR 62284 (Dec. 5, 1994); Inspection and Expedited 
Removal of Aliens; Detention and Removal of Aliens; Conduct of 
Removal Proceedings; Asylum Procedures, 62 FR 10312, 10337 (Mar. 6, 
1997).
    \11\ DHS recognizes the regulatory history for originally 
promulgating this provision. See 62 FR at 10318 (one of the chief 
purposes of the deadline was ``to ensure that bona fide asylees are 
eligible to obtain employment authorization as quickly as 
possible.''); Rules and Procedures for Adjudication of Applications 
for Asylum or Withholding of Deportation and for Employment 
Authorization, 59 FR 14779, 14780 (Mar. 30, 1994) (proposed rule) 
(the imposition of a 150-day waiting period before an asylum seeker 
may submit an initial EAD application--30 days before the 180 asylum 
clock runs--was done with an understanding that ``[i]deally . . . 
few applicants would ever reach the 150-day point.''); id. 
(discussing selection of 150 days because it was a period ``beyond 
which it would not be appropriate to deny work authorization to a 
person whose claim has not been adjudicated.''); see also 59 FR at 
62290-91 (final rule) (weighing competing considerations, including, 
among other things, ensuring the availability of work authorization 
to legitimate applicants and limiting the burden of the employment 
authorization process on overall adjudication workloads); 62 FR 
10337 (Mar. 6, 1997) (retaining the 30-day timeframe following 
enactment of the 180-day statutory waiting period). The existing 30-
day timeframe has become untenable notwithstanding its humanitarian 
goals. However, for the reasons explained elsewhere in this 
preamble, DHS believes it continues to meet the goals of the 
underlying statutory scheme, such as by its return to processing 
affirmative asylum applications on a ``last in, first out'' (LIFO) 
basis.
    \12\ DHS also proposes a technical change to this paragraph and 
paragraph (c)(3), which would replace a reference to the former INS 
with a reference to USCIS.
---------------------------------------------------------------------------

    In addition, 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 provision of 8 CFR 208.7(a)(1). On July 26, 2018, the 
court enjoined USCIS from further failing to adhere to the 30-day 
deadline for adjudicating EAD applications. USCIS is working towards 
compliance with the court order. Compliance with the court order places 
an extraordinary strain on already strained agency resources, and USCIS 
will not be able to sustain such a burden in the long-term without 
adding additional agency resources. Thus, USCIS reiterates that it 
cannot sustainably meet the 30-day timeframe for the reasons outlined 
below, and is proposing removal of this provision.
    DHS intends to grandfather into the 30-day adjudication timeframe 
those class members who filed their EAD applications prior to the 
effective date of any final rule that changes the 30-day adjudication 
timeline.
Growth of Receipts and Backlog
    The growth of asylum receipts along with the growing asylum backlog 
has contributed to an increase in EAD applications for pending asylum 
applicants that has surpassed available Service Center Operations 
resources. As of March 12, 2018, the affirmative asylum backlog stood 
at 317,395 applications \13\ and has been growing for several years. In 
part, this is due to a continued growth in affirmative asylum filings 
and historic increases in protection screenings at the border to which 
significant resources had to be diverted. Two main factors contributing 
to this backlog include: The diversion of resources away from the 
affirmative asylum caseload to protection screening of border arrivals, 
including credible fear and reasonable fear screenings, and a 
subsequent increase in asylum application filings, especially by 
Venezuelans, Central Americans, and unaccompanied alien children. For 
instance, credible fear screening for aliens apprehended at or near the 
U.S. border, see 8 CFR 208.30, increased to over 94,000 in fiscal year 
(FY) 2016 from 36,000 in FY 2013. Asylum applications increased to over 
100,000 in FY 2017 for the first time in 20 years.\14\ The USCIS Asylum 
Division

[[Page 47154]]

received 44,453 affirmative asylum applications in FY 2013, 56,912 in 
FY 2014, 84,236 in FY 2015, 115,888 in FY 2016, and 142,760 in FY 
2017.\15\ The 221.15 percent increase of affirmative asylum receipts 
over the span of five years has directly contributed to the increase in 
(c)(8) EAD receipts. USCIS received 41,021 initial EAD applications 
from individuals with pending asylum applications in FY 2013, 62,169 in 
FY 2014, 106,030 in FY 2015, 169,970 in FY 2016, and 261,782 in FY 
2017. USCIS also received 37,861 renewal EAD applications from 
individuals with pending asylum applications in FY 2013, 47,103 in FY 
2014, 72,559 in FY 2015, 128,610 in FY 2016, and 212,255 in FY 2017. 
The increase in both initial and renewal EAD applications coupled with 
the growing asylum backlog has grossly outpaced Service Center 
Operations resources, specifically because USCIS has had to reallocate 
resources from other product lines to adjudicate these EAD 
applications.\16\ Thus, as demonstrated in Section IV below, the 
increase in both asylum applications and EAD applications for those 
with pending asylum applications has added to the backlog and led to a 
delay in adjudication times.
---------------------------------------------------------------------------

    \13\ An affirmative asylum application filed by a principal 
asylum applicant may include a dependent spouse and children, who 
may also file their own EAD applications based on the pending asylum 
application.
    \14\ The USCIS Refugee, Asylum, and International Operations 
Parole System provided this data on March 15, 2018.
    \15\ These numbers only address the affirmative asylum 
applications that fall under the jurisdiction of USCIS' Asylum 
Division. Defensive asylum applications, filed with the Department 
of Justice's (DOJ) Executive Office for Immigration Review (EOIR) 
are also eligible for (c)(8) EADs. There is an ongoing backlog of 
pending defensive asylum cases at EOIR, which as of late 2017 had 
approximately 650,000 cases pending. See Memorandum from Attorney 
General Jefferson B. Sessions III to the Executive Office for 
Immigration Review, Renewing Our Commitment to the Timely and 
Efficient Adjudication of Immigration Cases to Serve the National 
Interest (Dec. 5, 2017). The defensive asylum backlog at EOIR also 
contributes to an increase in both initial and renewal (c)(8) EAD 
applications.
    \16\ In response to the growing backlog and court-ordered 
requirements in Rosario v. USCIS, No. C15-0813JLR (W.D. Wash. July 
26, 2018), Service Center Operations re-allocated available officer 
resources to try to meet the 30-day processing time for initial EAD 
applications, causing a strain across other Service Center 
Operations product lines.
---------------------------------------------------------------------------

Changes in Intake and Document Production
    Additionally, at the time the 30-day timeframe was established, 
EADs, which were formerly known as Forms I-688B, were produced by local 
offices that were equipped with stand-alone machines for such purposes. 
While decentralized card production resulted in immediate and 
customized adjudications for the public, the cards produced did not 
contain state-of-the-art security features, and they were susceptible 
to tampering and counterfeiting. Such deficiencies became increasingly 
apparent as the United States faced new and increasing threats to 
national security and public safety.
    In response to these concerns, the former INS and DHS made 
considerable efforts to upgrade application procedures and leverage 
technology in order to enhance integrity, security, and efficiency in 
all aspects of the immigration process. For example, to combat the 
document security problem discussed above, the former INS took steps to 
centralize application filing locations and card production. By 2006, 
DHS fully implemented these centralization efforts.\17\
---------------------------------------------------------------------------

    \17\ See USCIS Memorandum from Michael Aytes, Elimination of 
Form I-688B, Employment Authorization Card (Aug. 18, 2006). In 
January 1997, the former INS began issuing new, more secure EADs 
from a centralized location, and assigned a new form number (I-766) 
to distinguish it from the less secure, locally produced EADs (Forms 
I-688B). DHS stopped issuing Form I-688B EADs from local offices 
altogether in 2006.
---------------------------------------------------------------------------

    In general, DHS now requires applicants to file Applications for 
Employment Authorization at a USCIS Lockbox,\18\ which is a Post Office 
box used to accelerate the processing of applications by electronically 
capturing data and receiving and depositing fees.\19\ If DHS ultimately 
approves the application, a card order is sent to a card production 
facility, where a tamper-resistant card reflecting the specific 
employment authorized category is produced and then mailed to the 
applicant. While the 30-day timeframe may have made sense when local 
offices processed applications and produced the cards, DHS believes 
that the intervening changes discussed above now mean that a 30-day 
timeframe is not reflective of current processes.
---------------------------------------------------------------------------

    \18\ Asylum applicants, however, make their request for 
employment authorization directly on the Application for Asylum and 
Withholding of Removal, Form I-589, and need not file a separate 
Application for Employment Authorization following a grant of 
asylum. If they are requesting employment authorization based on 
their pending asylum application, they must file a separate request 
for employment authorization on Form I-765.
    \19\ USCIS, Field Office FAQs (May 2, 2013), https://www.uscis.gov/about-us/find-uscis-office/field-offices/field-office-faqs/faq/what-lockbox.
---------------------------------------------------------------------------

Fraud, Criminality, and National Security Considerations
    DHS has been unable to meet the 30-day processing timeframe in 
certain cases due to changes to the agency's vetting procedures and 
increased background checks, which resulted from the Government's 
response to September 11, 2001 terror attacks (``9/11''). Information 
obtained from such checks may affect eligibility for an initial EAD 
based on a pending asylum application. Specifically, the Immigration 
and Naturalization Service (INS), followed by U.S. Citizenship and 
Immigration Services (USCIS), made multiple changes to enhance the 
coverage of security checks, detect applicants who pose risks to 
national security and public safety, deter benefits fraud, and ensure 
that benefits are granted only to eligible applicants, in response to 
9/11.
    These changes included the creation of the Application Support 
Centers to collect applicant fingerprints, IBIS checks for all 
applications and FBI name check screening. In May 2004, USCIS created 
the Office of Fraud Detection and National Security (FDNS) to provide 
centralized support and policy guidance for security checks and anti-
fraud operations.\20\ In August 2004, the Homeland Security 
Presidential Directive (HSPD) 11, Comprehensive Terrorist-Related 
Screening Procedures,\21\ directed DHS to
---------------------------------------------------------------------------

    \20\ In 2010, FDNS was promoted to a Directorate, which elevated 
the profile and brought operational improvements to this important 
work. See USCIS, Fraud Detection and National Security Directorate, 
https://www.uscis.gov/about-us/directorates-and-program-offices/fraud-detection-and-national-security/fraud-detection-and-national-security-directorate.
    \21\ HSPD11, Comprehensive Terrorist-Related Screening 
Procedures (Aug. 27, 2004), available at https://fas.org/irp/offdocs/nspd/hspd-11.html.

incorporate security features . . . that resist circumvention to the 
greatest extent possible [and consider] information individuals must 
present, including, as appropriate, the type of biometric 
identifier[s] or other form of identification or identifying 
---------------------------------------------------------------------------
information to be presented, at particular screening opportunities.

    Since 9/11, USCIS implemented changes in the collection of 
biographic and biometric information for document production related to 
immigration benefits, including the Application for Employment 
Authorization (Form I-765). As part of the Employment Authorization 
benefit adjudications process since the inception of FDNS, USCIS must 
verify the identity of the individual applying for an EAD and determine 
whether any criminal, national security or fraud concerns exist. Under 
the current national security and fraud vetting guidelines, when an 
adjudicator determines that a criminal, national security and/or fraud 
concern exists, the case is forwarded to the Background Check Unit 
(BCU) or Center Fraud Detection Office (CFDO) for additional 
vetting.\22\ Once the vetting

[[Page 47155]]

is completed and a finding is made, the adjudicator uses the 
information provided from BCU and/or CFDO to determine whether the 
individual is eligible to receive the requested benefit.
---------------------------------------------------------------------------

    \22\ USCIS conducts background checks on individuals applying 
for an immigration benefit because United States immigration laws 
and regulations preclude USCIS from granting immigration benefits to 
individuals with certain criminal or administrative violations. See, 
e.g., 8 CFR 208.7(a)(1) (aggravated felony bar to employment 
authorization for asylum applicants).
---------------------------------------------------------------------------

    These security procedures implemented post 9/11 and well after the 
establishment of the 30-day adjudication timeframe in 1994, coupled 
with sudden increases in applications, have extended adjudication and 
processing times for cases with potential eligibility issues discovered 
during background checks outside of the current regulatory 30-day 
timeframe. It would be contrary to USCIS' core missions and undermine 
the integrity of the documents issued if USCIS were to reduce or 
eliminate vetting procedures solely to meet a 30-day deadline 
established decades ago.
    In sum, DHS is proposing to eliminate the 30-day processing 
provision at 8 CFR 208.7(a)(1) because of the increased volume of 
affirmative asylum applications and accompanying Applications for 
Employment Authorization, over two decades of changes in intake and EAD 
document production, and the need to appropriately vet applicants for 
fraud and national security concerns. DHS believes that the 30-day 
timeframe described in 8 CFR 208.7(a)(1) does not provide sufficient 
flexibility for DHS to meet its core missions of enforcing and 
administering our immigration laws and enhancing security.
    Case processing time information may be found at https://egov.uscis.gov/processing-times/, and asylum applicants can access the 
web page for realistic processing times as USCIS regularly updates this 
information.
    DHS welcomes public comment on all aspects of this proposal, 
including alternate suggestions for regulatory amendments to the 30-day 
processing timeframe not already discussed.
2. Removal of the 90-Day Filing Requirement
    DHS proposes to remove 8 CFR 208.7(d), because 8 CFR 274a.13(d), as 
amended in 2017, serves the same policy purpose as 8 CFR 208.7(d), and 
is arguably at cross-purposes with such provision. Under the 2017 AC21 
Rule, certain individuals eligible for employment authorization under 
designated categories may have the validity of their EADs extended for 
up to 180 days from the document's expiration date if they file an 
application to renew their EAD before the EAD's expiration date. See 8 
CFR 274a.13(d)(1). Specifically, the 2017 AC21 Rule automatically 
extends the EADs falling within the designated categories as long as 
(1) the individual filed the request to renew his or her EAD before its 
expiration date, (2) the individual is requesting renewal based on the 
same employment authorization category under which the expiring EAD was 
granted, and (3) the individual's request for renewal is based on a 
class of aliens whose eligibility to apply for employment authorization 
continues even after the EAD expires, and is based on an employment 
authorization category that does not first require USCIS to adjudicate 
an underlying application, petition, or request. Id. As noted in the 
preamble to the 2017 AC21 Rule, and as currently reflected on the USCIS 
website, the automatic extension amendment applies to individuals who 
have properly filed applications for asylum. See id.; 8 CFR 
274a.12(c)(8); 81 FR 82398 at 82455-56 n.98.\23\
---------------------------------------------------------------------------

    \23\ See also USCIS, Automatic Employment Authorization Document 
(EAD) Extension, https://www.uscis.gov/working-united-states/automatic-employment-authorization-document-ead-extension.
---------------------------------------------------------------------------

    Because the 2017 AC21 Rule effectively prevents gaps in work 
authorization for asylum applicants with expiring EADs, DHS finds it 
unnecessary to continue to require that pending asylum applicants file 
for EAD renewal at least 90 days before the EAD's scheduled expiration. 
The 2017 AC21 Rule amendment significantly mitigates the risk of gaps 
in employment authorization and required documentation for eligible 
individuals, providing consistency for employers who are responsible 
for verifying employment authorization. An additional 90-day 
requirement is unnecessary.
    DHS implemented the 180-day automatic extension for eligible 
individuals, including pending asylum applicants for renewal EADs, in 
accordance with the 2017 AC21 Rule. As a result, the subject EADs are 
already automatically extended, even if the renewal EAD application has 
not been submitted at least 90 days in advance of its expiration. DHS 
therefore proposes to make a clarifying amendment to delete subsection 
(d) from 8 CFR 208.7. Under this change, pending asylum applicants 
would not need to submit Form I-765 renewal applications at least 90 
days prior to the employment authorization expiration in order for the 
employment authorization to be renewed. Pending asylum applicants would 
be able to submit Form I-765 renewal applications up to 180 days prior 
to the employment authorization expiration, as recommended by USCIS on 
its website, and the EAD would be automatically extended for up to 180 
days from the date of expiration.\24\ This proposed change would reduce 
confusion regarding EAD renewal application requirements for pending 
asylum applicants and ensure the regulatory text reflects current DHS 
policy and regulations under the 2017 AC21 Rule. DHS welcomes public 
comment on all aspects of this proposal.
---------------------------------------------------------------------------

    \24\ See 2017 AC21 Rule, 81 FR at 82401 (``Specifically, the 
rule automatically extends the employment authorization and validity 
of existing EADs issued to certain employment-eligible individuals 
for up to 180 days from the date of expiration, as long as: (1) A 
renewal application is filed based on the same employment 
authorization category as the previously issued EAD (or the renewal 
application is for an individual approved for Temporary Protected 
Status (TPS) whose EAD was issued under 8 CFR 274a.12(c)(19)); (2) 
the renewal application is timely filed prior to the expiration of 
the EAD (or, in accordance with an applicable Federal Register 
notice regarding procedures for renewing TPS-related employment 
documentation) and remains pending; and (3) the individual's 
eligibility for employment authorization continues beyond the 
expiration of the EAD and an independent adjudication of the 
underlying eligibility is not a prerequisite to the extension of 
employment authorization''); USCIS, Employment Authorization 
Document, https://www.uscis.gov/greencard/employment-authorization-document (``Generally, you should not file for a renewal EAD more 
than 180 days before your original EAD expires.'').
---------------------------------------------------------------------------

3. Corresponding U.S. Department of Justice (DOJ) Regulations
    This proposed rule would remove (1) the 30-day processing provision 
for initial employment authorization applications for those with 
pending asylum applications, and (2) the 90-day timeframe for receipt 
of an application to renew employment authorization. See 8 CFR 
208(a)(1), and (d).
    Currently, these provisions can be found in two parallel sets of 
regulations: Regulations under the authority of DHS are contained in 8 
CFR part 208; and regulations under the authority of the Department of 
Justice (DOJ) are contained in 8 CFR part 1208. Each set of regulations 
contains substantially similar provisions regarding employment 
authorization, and each articulates both the 30-day provision for DHS 
adjudications and the 90-day timeframe for renewal applications before 
DHS. Compare 8 CFR 208.7(a)(1) and (d), with 8 CFR 1208.7(a)(1) and 
(d).
    This proposed rule would revise only the DHS regulations at 8 CFR 
208.7. Notwithstanding the language of the parallel DOJ regulations in 
8 CFR 1208.7, as of the effective date of a final rule, the revised 
language of 8 CFR 208.7(a)(1) and removal of 8 CFR 208.7(d) would be 
binding on DHS and its adjudications. DHS would not be

[[Page 47156]]

bound by the 30-day provision of the DOJ regulations at 8 CFR 
1208.7(a)(1). DOJ has no authority to adjudicate employment 
authorization applications. DHS has been in consultation with DOJ on 
this proposed rule, and DOJ may issue conforming changes at a later 
date. DHS welcomes public comment on this matter.

IV. Statutory and Regulatory Requirements

A. Executive Orders 12866 (Regulatory Planning and Review) and 13563 
(Improving Regulation and Regulatory Review)

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if a 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This proposed rule has been designated as a ``significant 
regulatory action'' and it is economically significant, since it meets 
the $100 million threshold under section 3(f) of Executive Order 12866. 
Accordingly, the Office of Management and Budget (OMB) has reviewed 
this proposed regulation.
1. Summary
    DHS proposes to remove the requirement to adjudicate initial EAD 
applications for pending asylum applicants within 30 days. In FY 2017, 
prior to the Rosario v. USCIS court order, the adjudication processing 
times for initial Form I-765 under the Pending Asylum Applicant 
category exceeded the regulatory set timeframe of 30 days more than 
half the time. However, USCIS adjudicated approximately 78 percent of 
applications within 60 days. In response to the Rosario v. USCIS 
litigation and to comply with the court order, USCIS continues to 
resource the adjudication of pending asylum EAD applications. USCIS has 
dedicated as many resources as practicable to these adjudications, but 
continues to face an asylum application backlog, which in turn 
increases the numbers of applicants eligible for pending asylum EADs. 
However, this reallocation of resources is not a long-term sustainable 
solution because USCIS has many competing priorities and many time-
sensitive adjudication timeframes. Reallocating resources in the long-
term is not sustainable due to work priorities in other product lines. 
USCIS could hire more officers, but that would not immediately and in 
all cases shorten adjudication timeframes because (1) additional time 
would be required to onboard and train new employees, and (2) for 
certain applications, additional time is needed to fully vet an 
applicant, regardless of staffing levels. In addition, there is 
currently no fee for asylum applications or the corresponding initial 
EAD applications, and the cost of adjudication is covered by fees paid 
by other benefit requesters. USCIS is uncertain of the actual cost 
impacts of hiring additional adjudicators to process these EAD 
applications at this time. If the backlog dissipates in the future, 
USCIS may seek to redistribute adjudication resources.
    As a primary goal, USCIS seeks to adequately vet applicants and 
adjudicate applications as quickly and efficiently as possible. This 
proposed rule may delay the ability for some initial applicants whose 
EAD processing is delayed beyond the 30-day regulatory timeframe to 
work.
    The impacts of this rule are measured against a baseline. This 
baseline is the best assessment of the way the world would look absent 
this proposed action. For this proposed action, USCIS assumes that in 
the absence of this proposed rule the baseline amount of time that 
USCIS would take to adjudicate would be 30 days. USCIS also assumes 
that if this proposed rule is adopted, adjudications will align with 
DHS processing times achieved in FY 2017 (before the Rosario v. USCIS 
court order). This is our best estimate of what would occur if the 
proposed rule is adopted. USCIS believes the FY 2017 timeframes are 
sustainable and USCIS intends to meet these timeframes if the proposed 
rule is adopted. Therefore, USCIS is analyzing the impacts of this rule 
by comparing the costs and benefits of adjudicating initial EAD 
applications for pending asylum applicants within 30 days compared to 
the actual time it took to adjudicate these EAD applications in FY 
2017.
    The impacts of this rule would include both distributional effects 
(which are transfers) and costs.\25\ The distributional impacts would 
fall on the asylum applicants who would be delayed in entering the U.S. 
labor force. The distributional impacts (transfers) would be in the 
form of lost compensation (wages and benefits). 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. A portion of the impacts of this 
rule would also be borne by companies that would have hired the asylum 
applicants had they been in the labor market earlier but were unable to 
find available workers. These companies would incur a cost, as they 
would be losing the productivity and potential profits the asylum 
applicant would have provided had the asylum applicant been in the 
labor force earlier. 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 reasonable substitutes for the 
labor the asylum applicants would have provided, this rule would 
primarily be a cost to these companies through lost productivity and 
profits. USCIS uses the lost compensation 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 
asylum applicants could range from $255.88 million to $774.76 million 
annually depending on the wages the asylum applicant would have earned. 
The ten-year total discounted lost compensation to asylum applicants at 
3 percent could range from $2,182.68 million to $6,608.90 million and 
at 7 percent could range from $1,797.17 million to $5,441.62 million 
(years 2019-2028). USCIS recognizes that the impacts of this proposed 
rule could be overstated if the provisions in the broader asylum EAD 
NPRM are finalized as proposed. Specifically, the broader asylum EAD 
NPRM would limit

[[Page 47157]]

or delay eligibility for employment authorization for certain asylum 
applicants. Accordingly, if the population of aliens is less than 
estimated as a result of the broader asylum EAD rule, the estimated 
impacts of this rule could be overstated because the population 
affected may be lower than estimated in this rule.
---------------------------------------------------------------------------

    \25\ Transfer payments are monetary payments from one group to 
another that do not affect total resources available to society. See 
OMB Circular A-4 pages 14 and 38 for further discussion of transfer 
payments and distributional effects. Circular A-4 is available at: 
https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf.
---------------------------------------------------------------------------

    In instances where a company cannot transfer additional work onto 
current employees and cannot hire replacement labor for the position 
the asylum applicant would have filled, USCIS acknowledges that delays 
may result in tax losses to the government. It is difficult to quantify 
income tax losses because individual tax situations vary widely \26\ 
but USCIS estimates the potential loss to other employment tax 
programs, namely Medicare and social security which have a combined tax 
rate of 7.65 percent (6.2 percent and 1.45 percent, respectively).\27\ 
With both the employee and employer not paying their respective portion 
of Medicare and social security taxes, the total estimated tax loss for 
Medicare and social security is 15.3 percent.\28\ Lost wages ranging 
from $255.88 million to $774.76 million would result in employment tax 
losses to the government ranging from $39.15 million to $118.54 
million.\29\ Adding the lost compensation to the tax losses provide 
total monetized estimates of this proposed rule that range from $275.46 
million to $834.03 million annually in instances where a company cannot 
hire replacement labor for the position the asylum applicant would have 
filled.\30\ Again, depending on the circumstances of the employee, 
there could be additional federal income tax losses not estimated here. 
There may also be state and local income tax losses that would vary 
according to the jurisdiction.
---------------------------------------------------------------------------

    \26\ See More than 44 percent of Americans pay no federal income 
tax (September 16, 2018) available at https://www.marketwatch.com/story/81-million-americans-wont-pay-any-federal-income-taxes-this-year-heres-why-2018-04-16.
    \27\ The various employment taxes are discussed in more detail 
at https://www.irs.gov/businesses/small-businesses-self-employed/understanding-employment-taxes. See IRS Publication 15, Circular E, 
Employer's Tax Guide for specific information on employment tax 
rates. https://www.irs.gov/pub/irs-pdf/p15_18.pdf.
    \28\ Calculation: (6.2 percent social security + 1.45 percent 
Medicare) x 2 employee and employer losses = 15.3 percent total 
estimated tax loss to government.
    \29\ Calculations: Lower bound lost wages $255.88 million x 15.3 
percent estimated tax rate = $39.15 million. Upper bound lost wages 
$774.76 million x 15.3 percent estimated tax rate = $118.54 million.
    \30\ Calculation: Lower bound lost wages $255.88 million + lower 
bound tax losses $19.58 million = total lower bound cost $275.46 
million.
    Upper bound lost wages $774.76 million + upper bound tax losses 
$59.27 million= total upper bound cost $834.03 million.
---------------------------------------------------------------------------

    This proposed rule would result in reduced opportunity costs to the 
Federal Government. Since Rosario compelled USCIS to comply with the 
30-day provision in FY 2018, USCIS has redistributed its adjudication 
resources to work up to full compliance. If the 30-day timeframe is 
removed, these redistributed resources could be reallocated, 
potentially reducing delays in processing of other applications and 
avoiding costs associated with hiring additional employees. USCIS has 
not estimated these avoided costs. Additionally, USCIS does not 
anticipate that removing the separate 90-day EAD filing requirement 
would result in any costs to the Federal Government.
    The proposed rule would benefit USCIS by allowing it to operate 
under long-term sustainable case processing times for initial EAD 
applications for pending asylum applicants, to allow sufficient time to 
address national security and fraud concerns, and to maintain 
technological advances in document production and identify 
verification. Applicants would rely on up-to-date processing times, 
which will provide accurate expectations of adjudication times. The 
technical change to remove the 90-day filing requirement would 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.\31\
---------------------------------------------------------------------------

    \31\ In the 2017 AC21 final rule, 81 FR 82398, USCIS amended 8 
CFR 274a.13 to allow for the automatic extension of existing, valid 
EADs for up to 180 days for renewal applicants falling within 
certain EAD categories as described in the regulation and designated 
on the USCIS website. See 8 CFR 274a.13(d). Among those categories 
is asylum applicants. To benefit from the automatic extension, an 
applicant falling within an eligible category must (1) properly file 
his or her renewal request for employment authorization before its 
expiration date, (2) request renewal based on the same employment 
authorization category under which the expiring EAD was granted, and 
(3) will continue to be authorized for employment based on his or 
her status, even after the EAD expires, and is applying for renewal 
under a category that does not first require USCIS to adjudicate an 
underlying application, petition, or request.
---------------------------------------------------------------------------

    Table 4 provides a detailed summary of the regulatory changes and 
the expected impacts of this proposed rule.

[[Page 47158]]



                               Table 4--Summary of Proposed Provisions and Impacts
----------------------------------------------------------------------------------------------------------------
                    Proposed change to   Expected costs and transfers from     Expected benefits from proposed
 Current provision       provision               proposed provision                       provision
----------------------------------------------------------------------------------------------------------------
USCIS has a 30-day  USCIS proposes to   Quantitative:                        Quantitative:
 EAD adjudication    eliminate the      This provision could delay the       Not estimated.
 timeframe for       provisions for      ability of some initial applicants
 applicants who      the 30-day          to work. A portion of the impacts
 have pending        adjudication        of the rule would be the lost
 asylum              timeframe and       compensation transferred from
 applications.       issuance of EADs    asylum applicants to others
                     for pending         currently in the workforce,
                     asylum              possibly in the form of additional
                     applicants.         work hours or overtime pay. A
                                         portion of the impacts of the rule
                                         would be lost productivity costs
                                         to companies that would have hired
                                         asylum applicants had they been in
                                         the labor market, but who were
                                         unable to find available workers.
                                         USCIS uses the lost compensation
                                         to asylum applicants as a measure
                                         of these distributional impacts
                                         (transfers) and as a proxy for
                                         businesses' cost for lost
                                         productivity. The lost
                                         compensation due to processing
                                         delays could range from $255.88
                                         million to $774.76 million
                                         annually. The total ten-year
                                         discounted lost compensation for
                                         years 2019-2028 averages $4,395.79
                                         million and $3,619.40 million at
                                         discount rates of 3 and 7 percent,
                                         respectively. USCIS does not know
                                         the portion of overall impacts of
                                         this rule that are transfers or
                                         costs. Lost wages ranging from
                                         $255.88 million to $774.76 million
                                         would result in employment tax
                                         losses to the government ranging
                                         from $39.15 million to $118.54
                                         million.
                                        Qualitative:                         Qualitative:
                                           There may also be additional         DHS would be able to operate
                                            distributional impacts for           under long-term sustainable
                                            those in an applicant's support      case processing times for
                                            network--if applicants are           initial EAD applications for
                                            unable to work legally, they         pending asylum applicants, to
                                            may need to rely on resources        allow sufficient time to
                                            from family members, friends,        address national security and
                                            non-profits, or government           fraud concerns, and to maintain
                                            entities for support.                technological advances in
                                                                                 document production and
                                                                                 identity verification without
                                                                                 having to add any resources.
                                                                                This rule would result in
                                                                                 reduced opportunity costs to
                                                                                 the Federal Government. If the
                                                                                 30-day timeframe is removed,
                                                                                 USCIS could reallocate the
                                                                                 resources it redistributed to
                                                                                 comply with the 30-day
                                                                                 provision, potentially reducing
                                                                                 delays in processing of other
                                                                                 applications and avoiding costs
                                                                                 associated with hiring
                                                                                 additional employees.
Applicants can      USCIS proposes to   Quantitative:                        Qualitative:
 currently submit    remove the 90-day  None.                                None.
 a renewal EAD       submission         Quantitative:                        Qualitative:
 application 90      requirement for    None.                                Applicants--
 days before the     renewal EAD                                              Reduces confusion
 expiration of       applications.                                            regarding EAD renewal
 their current                                                                requirements. Some confusion may
 EAD.                                                                         nonetheless remain if applicants
                                                                              consult outdated versions of
                                                                              regulations or inapplicable DOJ
                                                                              regulations.
                                                                                DHS/USCIS--
                                                                                 The regulations would
                                                                                 be updated to match those of
                                                                                 other EAD categories.
----------------------------------------------------------------------------------------------------------------

    As previously discussed, USCIS does not know the portion of overall 
impacts of this rule that are transfers or costs, but estimates that 
the maximum monetized impact of this rule from lost compensation is 
$774.76 million annually. If all companies are able to easily find 
reasonable labor substitutes for the positions the asylum applicants 
would have filled, they will bear little or no costs, so $774.76 
million will be transferred from asylum applicants to workers currently 
in the labor force or induced back into the labor force (we assume no 
tax losses as a labor substitute was found). Conversely, if companies 
are unable to find reasonable labor substitutes for the position the 
asylum applicant would have filled then $774.76 million is the 
estimated maximum monetized cost of the rule and $0 is the estimated 
minimum in monetized transfers from asylum applicants to other workers. 
In addition, under this scenario, because the jobs would go unfilled 
there would be a loss of employment taxes to the Federal Government. 
USCIS estimates $118.54 million as the maximum decrease in employment 
tax transfers from companies and employees to the Federal Government. 
The two scenarios described above represent the estimated endpoints for 
the range of monetized impacts resulting from this rule, and are 
summarized in Table 5 below.

[[Page 47159]]



                                                     Table 5--Summary of Range of Monetized Impacts
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Scenario: No replacement labor       Scenario: All asylum
                                                                            found for asylum applicants   applicants replaced with other  Primary  (half
               Category                           Description            --------------------------------             workers                 of the
                                                                                                         --------------------------------  highest high
                                                                             Low wage        High wage       Low wage        High wage     for each row)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost.................................  Lost compensation used as proxy           $255.88         $774.76           $0.00           $0.00         $387.38
                                        for lost productivity to
                                        companies.
Transfer.............................  Compensation transferred from                0.00            0.00          255.88          774.76          387.38
                                        asylum applicants to other
                                        workers.
Transfer.............................  Lost employment taxes paid to the           39.15          118.54            0.00            0.00           59.27
                                        Federal Government.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As required by OMB Circular A-4, Table 6 presents the prepared A-4 
accounting statement showing the costs and transfers associated with 
this proposed regulation. For the purposes of the A-4 accounting 
statement below, USCIS uses the mid-point as the primary estimate for 
both costs and transfers because the total monetized impact of the rule 
from lost compensation cannot exceed $774.76 million and as described, 
USCIS is unable to apportion the impacts between costs and transfers. 
Likewise, USCIS uses a mid-point for the reduction in employment tax 
transfers from companies and employees to the Federal Government when 
companies are unable to easily find replacement workers. USCIS notes 
that there may be some unmonetized costs such as additional opportunity 
costs to employers that would not be captured in these monetized 
estimates.

                                                Table 6--OMB A-4 Accounting Statement ($ Millions, 2017)
                                                             [Period of analysis: 2019-2028]
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
Category                                              Primary estimate                Minimum         Maximum  Source citation (RIA, preamble, etc.)
                                                                                     estimate        estimate
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Benefits
--------------------------------------------------------------------------------------------------------------------------------------------------------
Monetized Benefits...........................            (7%)             N/A             N/A             N/A  RIA.
                                                         (3%)             N/A             N/A             N/A  RIA.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized quantified, but un-monetized,                                    0               0               0  RIA.
 benefits.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unquantified Benefits........................   Applicants would benefit from reduced confusion over renewal   RIA.
                                                requirements. DHS would be able to operate under sustainable
                                               case processing times for initial EAD applications for pending
                                                   asylum applicants, to allow sufficient time to address
                                                    national security and fraud concerns, and to maintain
                                                 technological advances in document production and identity
                                                                        verification.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized monetized costs (discount rate in             (7%)         $387.38              $0         $774.76  RIA.
 parenthesis).
                                                         (3%)         $387.38              $0         $774.76  RIA.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized quantified, but un-monetized,                     N/A                          N/A             N/A  RIA.
 costs.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Qualitative (unquantified) costs.............     In cases where companies               RIA.
                                                   cannot find reasonable
                                                substitutes for the labor the
                                                asylum applicants would have
                                                provided, affected companies
                                                would also lose profits from
                                                the lost productivity. In all
                                                cases, companies would incur
                                               opportunity costs by having to
                                                    choose the next best
                                                 alternative to immediately
                                                 filling the job the pending
                                                 asylum applicant would have
                                                    filled. There may be
                                                additional opportunity costs
                                                    to employers such as
                                                  additional search costs.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Transfers
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized monetized transfers: ``on budget''            (7%)              $0              $0              $0  RIA.
                                                         (3%)              $0              $0              $0
--------------------------------------------------------------------------------------------------------------------------------------------------------
From whom to whom?...........................                                N/A                               N/A.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized monetized transfers: ``off-                   (7%)         $387.38              $0         $774.76  RIA.
 budget''.
                                                         (3%)         $387.38              $0         $774.76
--------------------------------------------------------------------------------------------------------------------------------------------------------
From whom to whom?...........................   From asylum applicants to workers in the U.S. labor force or   RIA.
                                                induced into the U.S. labor force. Additional distributional
                                                   impacts from asylum applicant to the asylum applicant's
                                                support network that provides for the asylum applicant while
                                                                      awaiting an EAD.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized monetized transfers: ``off-                   (7%)          $59.27              $0         $118.54  RIA.
 budget''.
                                                         (3%)          $59.27              $0         $118.54
--------------------------------------------------------------------------------------------------------------------------------------------------------
From whom to whom?...........................   A reduction in employment taxes from companies and employees   .........................................
                                                to the Federal Government. There could also be a transfer of
                                                        federal, state, and local income tax revenue.
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 47160]]


--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                               Source citation  (RIA,
             Category                                                      Effects                                                preamble,  etc.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Effects on state, local, and/or     None; no significant impacts to national labor force or to the labor force of          RIA.
 tribal governments.                 individual states is expected. Possible loss of tax revenue.
Effects on small businesses.......  None.................................................................................  RFA.
Effects on wages..................  None.................................................................................  RIA.
Effects on growth.................  None.................................................................................  RIA.
--------------------------------------------------------------------------------------------------------------------------------------------------------

2. Background and Purpose of the Proposed Rule
    Aliens who are arriving or physically present in the United States 
generally may apply for asylum in the United States irrespective of 
their immigration status. To establish eligibility for asylum, an 
applicant must demonstrate, among other things, that they have suffered 
past persecution or have a well-founded fear of future persecution on 
account of race, religion, nationality, membership in a particular 
social group, or political opinion. Applicants, with limited 
exceptions, are required to apply for asylum within one year of their 
last arrival in the United States. USCIS does not currently charge 
filing fees for certain humanitarian benefits, including asylum 
applications and applications concurrently filed with asylum 
applications. Asylum applicants whose cases remain pending without a 
decision for at least 150 days are eligible to apply for employment 
authorization, unless any delays are caused by the applicant (such as a 
request to reschedule an interview). 8 CFR 208.7, 274a.12(c)(8), 
274a.13(a)(2). Applicants who are granted asylum (``asylees'') may work 
immediately. See INA 208(c)(1)(B), 8 U.S.C. 1158(c)(1)(B). An asylee 
may choose to obtain an EAD for convenience or identification purposes, 
but this documentation is not necessary for an asylee to work. 8 CFR 
274a.12(a)(5).
    Currently, DHS regulations at 8 CFR 208.7(a)(1) provide that USCIS 
adjudicates a Form I-765 within 30 days of receiving a properly filed 
application from a pending asylum applicant. Asylum applicants must 
wait 150 days from the time of filing the asylum application before 
they can file a Form I-765. USCIS cannot grant employment authorization 
until the applicant has accumulated a total of 180 days, not including 
any delays caused or requested by the applicant, meaning the 
applicant's asylum case has been pending for a total of 180 days. 8 CFR 
208.7(a)(1)-(2). This is known as the 180-Day Asylum EAD clock.\32\ If 
USCIS approves the Form I-765, USCIS mails an EAD according to the 
mailing preferences indicated by the applicant. If USCIS denies the 
Form I-765, the agency sends a written notice to the applicant 
explaining the basis for denial.
---------------------------------------------------------------------------

    \32\ See The 180-Day Asylum EAD Clock Notice (May 9, 2017) 
https://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/Asylum_Clock_Joint_Notice_-_revised_05-10-2017.pdf.
---------------------------------------------------------------------------

    However, if USCIS requires additional documentation from the 
applicant before a decision can be made, USCIS sends a request for 
evidence (RFE) and the 30-day processing timeframe for processing a 
Form I-765 is paused until additional documentation is received. Once 
USCIS receives all requested information in response to the RFE, the 
30-day timeframe continues from the point at which it stopped. In some 
instances, applications may require additional vetting by the 
Background Check Unit (BCU) and the Center Fraud Detection Operations 
(CFDO), for instance, to verify an applicant's identity. The 30-day 
timeframe does not stop in these situations, though these cases may 
take longer than 30 days to process. USCIS would make a decision only 
after all eligibility and background checks relating to the EAD 
application have been completed.
    DHS considers the 30-day adjudication timeframe to be outdated, as 
it no longer reflects current DHS operational realities. In the 20-plus 
years since the timeframe was established, there has been a shift to 
centralized processing as well as increased security measures, such as 
the creation of tamper-resistant EAD cards. These measures reduce 
opportunities for fraud but can require additional processing time, 
especially as filing volumes remain high. By eliminating the 30-day 
provision, DHS would be able to maintain accurate case processing times 
for initial EAD applications for pending asylum applicants since, prior 
to the Rosario v. USCIS court order, it was not meeting the 30-day 
regulatory timeframe most of the time (53 percent), to address national 
security and fraud concerns for those applications that require 
additional vetting through RFEs or referrals to BCU and/or CFDO, and to 
maintain technological advances in document production and identity 
verification that USCIS must fulfill as a part of its core mission 
within DHS such as the centralized production and creation of tamper-
resistant cards.
    As noted above, the need for this rule results in part from the 
resource burden associated with adjudicating, within the 30-day 
adjudication timeframe, a large number of initial Forms I-765 under the 
Pending Asylum Applicant category. The large number of applications 
results from a range of factors, such as recent growth in USCIS's 
asylum backlog, which USCIS continues to address through a number of 
different measures.
    For example, in an effort to stem the growth of the agency's asylum 
backlog, USCIS returned to processing affirmative asylum applications 
on a ``last in, first out'' (LIFO) basis. Starting January 29, 2018, 
USCIS began prioritizing the most recently filed affirmative asylum 
applications when scheduling asylum interviews. The former INS first 
established this interview scheduling approach as part of asylum 
reforms implemented in January 1995 and it remained in place until 
December 2014. USCIS has returned to this approach in order to deter 
individuals from using asylum backlogs solely as a means to obtain 
employment authorization by filing frivolous, fraudulent or otherwise 
non-meritorious asylum applications. Giving priority to recent filings 
allows USCIS to promptly adjudicate asylum applications.\33\
---------------------------------------------------------------------------

    \33\ USCIS now schedules asylum interviews based on three 
priority levels. First priority: Applications scheduled for an 
interview, but the interview had to be rescheduled at the 
applicant's request or the needs of USCIS. Second priority: 
Applications pending 21 days or less. Third priority: All other 
pending affirmative asylum applications, which will be scheduled for 
interviews starting with newer filings and working back towards 
older filings. See Affirmative Asylum Interview Scheduling (Jan. 26, 
2018), available at https://www.uscis.gov/humanitarian/refugees-asylum/asylum/affirmative-asylum-interview-scheduling.
---------------------------------------------------------------------------

    Another possible effect of reinstating LIFO is that in the future, 
fewer affirmative asylum applications would remain pending before USCIS 
for 150 days. However, the majority of asylum

[[Page 47161]]

applications filed with USCIS have been referred to the Department of 
Justice Executive Office for Immigration Review (EOIR) for 
consideration of the asylum application by an immigration judge. In FY 
2017, 53 percent of asylum filings processed by USCIS resulted in a 
referral to an immigration judge.\34\ These applicants may be eligible 
to apply for an initial EAD under the (c)(8) category once the Asylum 
EAD Clock reaches 150 days. USCIS anticipates updating its data in the 
analysis accompanying the final rule. If this and other reforms are 
successful, such updated data may reflect a relative reduction in 
application volumes.
---------------------------------------------------------------------------

    \34\ See Notes from Previous Engagements, Asylum Division 
Quarterly Stakeholder Meeting (Feb. 7, May 2, Aug. 11, and Nov. 3, 
2017), https://www.uscis.gov/outreach/notes-previous-engagements?topic_id=9213&field_release_date_value%5Bvalue%5D%5Bmonth%5D=&field_release_date_value_1%5Bvalue%5D%5Byear%5D=&multiple=&items_per_page=10.
---------------------------------------------------------------------------

    In the end, however, USCIS cannot predict with certainty how LIFO 
and other administrative measures, as well as external factors such as 
immigration court backlogs and changes in country conditions, will 
ultimately affect total application volumes and the attendant resource 
burdens on USCIS. In addition, in light of the need to accommodate 
existing vetting requirements and to maintain flexibility should trends 
change, USCIS believes that even if it could reliably project a 
reduction in total application volume, such reduction would not, on its 
own, serve as a sufficient basis to leave the 30-day adjudication 
timeframe in place.
    Finally, once an EAD is approved under the (c)(8) Pending Asylum 
Applicant category, it is valid for two years and requires renewal to 
extend an applicant's employment authorization if the underlying asylum 
application remains pending.\35\ Currently, DHS regulations at 8 CFR 
208.7(d) require that USCIS must receive renewal applications at least 
90 days prior to the employment authorization expiration.\36\ Removing 
the 90-day requirement would bring 8 CFR 208.7(d) in line with 8 CFR 
274a.13(d), as amended in 2017; such amendments automatically extend 
renewal applications for up to 180 days. Additionally, under the 2017 
AC21 Rule, applicants eligible for employment authorization can have 
the validity of their EADs automatically extended for up to 180 days 
from the document's expiration date, if they (1) file before its 
expiration date, (2) are requesting renewal based on the same 
employment authorization category under which the expiring EAD was 
granted, and (3) will continue to be authorized for employment based on 
their status, even after the EAD expires and are applying for renewal 
under a category that does not first require USCIS to adjudicate an 
underlying application, petition, or request.
---------------------------------------------------------------------------

    \35\ EADs issued prior to October 5, 2016 had a validity period 
of one year. See USCIS Increases Validity of Work Permits to Two 
Years for Asylum Applicants (Oct. 6, 2016), available at https://www.uscis.gov/news/alerts/uscis-increases-validity-work-permits-two-years-asylum-applicants.
    \36\ For renewal applications, a properly filed application for 
pending asylum applicants is one that is complete, signed, 
accompanied by all necessary documentation and the current filing 
fee of $410.
---------------------------------------------------------------------------

3. Population
    In FY 2017, USCIS received a total of 142,760 affirmative filings 
of Form I-589 applications for asylum. The number of total receipts for 
asylum applicants has risen sharply over the last five years, 
increasing over 221 percent from FY 2013 to FY 2017 (Table 7). As the 
number of asylum applicants increases, the backlog continues to 
grow,\37\ resulting in a greater number of people who are eligible to 
apply for EADs while they await adjudication of their asylum 
application.
---------------------------------------------------------------------------

    \37\ As of June 2018, the asylum backlog was still increasing, 
but its growth rate has begun to stabilize.

   Table 7--Total Annual Form I-589 Receipts Received From Affirmative
                          Asylum Applicants 38
------------------------------------------------------------------------
                       Fiscal year                        Total receipts
------------------------------------------------------------------------
2013....................................................          44,453
2014....................................................          56,912
2015....................................................          84,236
2016....................................................         115,888
2017....................................................         142,760
------------------------------------------------------------------------
Source: All USCIS Application and Petition Form Types, All Form Types
  Performance Data (Fiscal Year 2013-2017, 4th Qtr), https://www.uscis.gov/tools/reports-studies/immigration-forms-data/data-set-all-uscis-application-and-petition-form-types.

     
---------------------------------------------------------------------------

    \38\ These numbers only address the affirmative asylum 
applications that fall under the jurisdiction of USCIS' Asylum 
Division. Defensive asylum applications, filed with the Department 
of Justice's Executive Office for Immigration Review (EOIR) are also 
eligible for (c)(8) EADs. There is an ongoing backlog of pending 
defensive asylum cases at EOIR, which has approximately 650,000 
cases pending. See Memorandum from Jeff Sessions, Attorney General, 
Renewing Our Commitment to the Timely and Efficient Adjudication of 
Immigration Cases to Serve the National Interest (Dec. 5, 2017). The 
defensive asylum backlog at EOIR also contributes to an increase in 
both initial and renewal (c)(8) EAD applications.
---------------------------------------------------------------------------

    This larger number of applications strains resources, which leads 
to longer processing times for Form I-765 adjudication. Table 8 shows 
the total, initial, and renewal applications received for Form I-765 
for asylum applicants for FYs 2013 to 2017.\39\
---------------------------------------------------------------------------

    \39\ Since LIFO was reinstated at the end of January 2018, there 
is not yet enough data currently available to determine the impact 
on asylum applications or initial EAD applications. USCIS 
anticipates updating its data in the analysis accompanying the final 
rule. If this and other reforms are successful, such updated data 
may reflect a relative reduction in application volumes.

                Table 8--Total Annual Form I-765 Receipts Received From Pending Asylum Applicants
----------------------------------------------------------------------------------------------------------------
                                                                  Total receipts   Total initial   Total renewal
                           Fiscal year                                   *           receipts        receipts
----------------------------------------------------------------------------------------------------------------
2013............................................................          79,571          41,021          37,861
2014............................................................         110,210          62,169          47,103
2015............................................................         180,196         106,030          72,559
2016............................................................         300,855         169,970         128,610
2017............................................................         478,721         261,782         212,255
                                                                 -----------------------------------------------
    Average.....................................................         229,911         128,194          99,678
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Performance and Quality.
* Total receipts do not include replacement receipts. Therefore, initial and renewal receipts will not equal to
  total receipts.
Note: This data includes receipts received from both affirmative and defensive pending asylum applicants.


[[Page 47162]]

    In FY 2017, USCIS received a total of 478,721 applications for Form 
I-765 from pending asylum applicants, with more than half as initial 
applications (261,782 or 54.7 percent). There were 212,255 renewal 
applications (44.3 percent) in FY 2017. This trend is similar across 
all five fiscal years. The five-year average of total applications 
received was 229,911, with five-year averages of 128,194 initial 
applications and 99,678 renewal applications.
    For this analysis, USCIS does not use a trend line to forecast 
future projected applications because various factors outside of this 
rulemaking may result in either a decline or, conversely, a continued 
rise of applications received. For example, while the number of initial 
applicants and renewals has risen sharply over the last five years, DHS 
assumes the increase in initial EAD applications has some correlation 
with the increase in applications for asylum. As pending asylum 
applications increase, the length of time it takes to adjudicate those 
applications increases, and it is reasonable to assume that the number 
of applicants who seek employment authorization on the basis of that 
underlying asylum application would also rise. On the other hand, 
initial EAD applications may decline. For instance, USCIS' return to a 
LIFO interview schedule to process affirmative asylum applications, may 
help stem the growth of the agency's asylum backlog, and may result in 
fewer pending asylum applicants applying for an EAD. But USCIS cannot 
predict such an outcome with certainty at this time. Therefore, since 
DHS anticipates similar outcomes to those achieved in FY 2017, USCIS 
anticipates receiving approximately 478,721 Form I-765 applications 
annually from pending asylum applicants, with an estimated 261,782 
initial applications and 212,255 renewal applications.
    In order to analyze USCIS processing times for Form I-765, USCIS 
obtained data on completed initial applications, which included the 
length of time to complete adjudication and information on 
investigative factors that may prolong the adjudication process. Table 
9 differentiates between initial applications that USCIS adjudicated 
within the 30-day timeframe in FY 2017 and those that it did not. The 
table also includes the initial applications that were adjudicated 
within a 60-day timeframe in FY 2017, along with the corresponding 
initial applications that required additional vetting. This additional 
vetting includes the issuance of RFEs and referrals for identity 
verification by the BCU and the CFDO, which can cause delays in 
processing. DHS notes that the 30-day timeframe pauses for RFEs but 
does not pause for BCU or CFDO checks. Delays could also be caused by 
rescheduled fingerprinting.

       Table 9--Percentage of Completions for Initial Form I-765 for Pending Asylum Applicants in FY 2017
----------------------------------------------------------------------------------------------------------------
                                  No additional vetting required    Additional vetting required
                                             (percent)                       (percent)
   Number of days the initial    ----------------------------------------------------------------      Total
     application was pending         Approved         Denied         Approved         Denied         (percent)
                                      initial         initial         initial         initial
                                   applications    applications    applications    applications
----------------------------------------------------------------------------------------------------------------
0-30............................              42               2               3               0              47
31-60...........................              22               2               6               1              31
Over 60.........................              12               2               6               2              22
                                 -------------------------------------------------------------------------------
    Total (percent).............              76               5              16               3             100
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Performance and Quality.
Note: Additional vetting includes the applications issued an RFE, referred to BCU/CFDO and both.

    In FY 2017, USCIS adjudicated within the 30-day timeframe just 
under half (47 percent) of all initial Form I-765 applications 
received. USCIS approved within 30 days 45 percent \40\ of the initial 
applications received and denied 2 percent that did not require any 
additional vetting. Among the approved applications, only 3 percent of 
the total required additional vetting, while 42 percent did not. USCIS' 
completion rate within a 60-day timeframe increased to 78 percent 
overall, with 73 percent \41\ of applications approved and 5 percent 
\42\ denied. Only 10 percent \43\ of applications adjudicated within 60 
days required additional vetting, while the majority of approved 
applications did not (68 percent of the total).\44\
---------------------------------------------------------------------------

    \40\ Calculation of 30-day Approved: 42 (No Additional Vetting 
Percent Approved 0-30 days) + 3 (Additional Vetting Percent Approved 
0-30 days) = 45 percent.
    \41\ Calculation of 60-day Approved: 42 (No Additional Vetting 
Percent Approved 0-30 days) + 22 (No Additional Vetting Percent 
Approved 31-60 days) + 3 (Additional Vetting Percent Approved 0-30 
days) + 6 (Additional Vetting Percent Approved 31-60 days) = 73 
percent.
    \42\ Calculation of 60-day Denied: 2 (No Additional Vetting 
Percent Denied 0-30 days) + 2 (No Additional Vetting Percent Denied 
31-60 days) + 1 (Additional Vetting Percent Denied 31-60 days) = 5 
percent.
    \43\ Calculation of 60-day Additional Vetting: 3 (Additional 
Vetting Percent Approved 0-30 days) + 6 (Additional Vetting Percent 
Approved 31-60 days) + 1 (Additional Vetting Percent Denied 31-60 
days) = 10 percent.
    \44\ Calculation of 60-day No Additional Vetting: 42 (No 
Additional Vetting Percent Approved 0-30 days) + 22 (No Additional 
Vetting Percent Approved 31-60 days) + 2 (No Additional Vetting 
Percent Denied 0-30 days) + 2 (No Additional Vetting Percent Denied 
31-60 days) = 68 percent.
---------------------------------------------------------------------------

    In FY 2017, prior to the Rosario v. USCIS court order, the majority 
of applications (53 percent) did not meet the required 30-day 
adjudication timeframe. In fact, it took up to 60 days for USCIS to 
adjudicate the majority of applications. For applications that require 
additional vetting, most applications took more than 30 days to 
adjudicate as well. ``Additional vetting'' cases include those where an 
RFE is issued, which pauses the regulatory processing time. The 
findings in Table 9 underscore that, while additional vetting and other 
delays may contribute to increased processing times, it may not be the 
only reason processing times have increased. It is likely that the 
increasing number of initial EAD applications is due to increasing 
asylum receipts, the asylum interview backlogs, and updated operations 
as outlined in the background of this proposed rule.
    With the removal of the 30-day adjudication timeframe, DHS 
anticipates similar outcomes to those achieved in FY 2017. DHS's 
primary goal is to adequately vet applicants and adjudicate cases as 
quickly and efficiently as possible. DHS welcomes public comment on the 
above analysis, including the methodology used for the population 
estimates of this proposed rule and the analysis of processing times.

[[Page 47163]]

4. Transfers, Costs and Benefits of This Proposed Rule
(1) Transfers and Costs
    The proposed rule would remove the 30-day adjudication timeframe in 
order to better align with DHS processing times achieved in FY 2017. 
USCIS recognizes that removing the 30-day regulatory timeframe could 
potentially result in longer processing times for some applicants and 
in such situations, this could lead to potential delays in employment 
authorization for some initial EAD applicants. As described above, 
these delays would have both distributional effects (which are 
transfers) and costs. Any delay beyond the regulatory 30-day timeframe 
would prevent an EAD applicant, if his or her application were 
approved, from earning wages and other benefits until authorization is 
obtained. A portion of this lost compensation would be a distributional 
impact and considered a transfer 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. In cases where companies that 
would have hired asylum applicants had they been in the labor market 
earlier are not able to find available workers, the lost compensation 
to asylum workers would be considered a proxy for the cost of lost 
productivity to those companies. However, USCIS does not know the 
portion of the overall impacts of this rule that are transfers or 
costs. One reason USCIS is unable to apportion these impacts is because 
the industries in which asylum applicants will work with their 
employment authorization is unknown; companies' responses to such a 
situation will vary depending on the industry and location of the 
company (e.g., truck drivers are limited to the number of overtime 
hours they can work). Additional uncertainty in how companies will 
respond exists because while the official unemployment rate is low, 
there is still evidence of some labor market slack.\45\ While USCIS is 
unable to apportion these impacts between transfers and costs, USCIS 
does use the lost compensation to asylum applicants, as described 
below, as a measure of these total impacts.
---------------------------------------------------------------------------

    \45\ See Bureau of Labor Statistics, Employment Situation News 
Release, Nov. 2, 2018, https://www.bls.gov/news.release/archives/empsit_11022018.pdf.
    It reports that ``the number of persons employed part time for 
economic reasons (sometimes referred to as involuntary part-time 
workers) was essentially unchanged at 4.6 million in October. These 
individuals, who would have preferred full-time employment, were 
working part time because their hours had been reduced, or they were 
unable to find full-time jobs.'' It reports also that ``In October, 
1.5 million persons were marginally attached to the labor force . . 
. These individuals were not in the labor force, wanted and were 
available for work, and had looked for a job sometime in the prior 
12 months.''
---------------------------------------------------------------------------

    In FY 2017, the processing times for initial Form I-765 under the 
Pending Asylum Applicant category exceeded the regulatory set timeframe 
of 30 days more than half the time. However, USCIS adjudicated 
approximately 78 percent of applications within 60 days. To estimate 
lost wages and other benefits, USCIS used FY 2017 daily processing 
data. In FY 2017, USCIS adjudicated 119,088 approved applications \46\ 
past the regulatory set timeframe. USCIS recognizes that pending asylum 
EAD applicants do not currently participate in the U.S. labor market, 
and, as a result, are not represented in national average wage 
calculations. Further, USCIS recognizes that pending asylum applicants 
who obtain an EAD are not limited to certain types of employment or 
occupations nor does USCIS track the type of employment applicants 
obtain. Because the Form I-765(c8) does not include or legally require, 
at the initial or renewal stage, any data on employment, and, since it 
does not involve an associated labor condition application (LCA), DHS 
has no information on wages, occupations, industries, or businesses 
that may involve such workers. In some DHS rulemakings, the estimates 
of distributional impacts and time-related opportunity costs are linked 
to the federal minimum wage for new entrants to the labor force. This 
reliance is grounded in the notion that most of the relevant EAD 
holders would not have been in the labor force long, and would thus not 
be expected to earn relatively high wages. In this proposed rulemaking, 
we rely on a slightly more robust ``prevailing'' minimum wage of $8.25. 
As is reported by the Economic Policy Institute (EPI, 2016), many 
states have their own minimum wage, and, even within states, there are 
multiple tiers.\47\ Although the minimum wage could be considered a 
lower-end bound on true earnings, the prevailing minimum wage is fully 
loaded, at $12.05, which 13.8 percent higher than the federal minimum 
wage.\48\ DHS does not rule out the possibility that some portion of 
the population might earn wages at the average level for all 
occupations, but without solid a priori information we believe that 
providing a range with the lower bound relying on the prevailing 
minimum wage is justifiable. Therefore, for the purpose of this 
analysis, USCIS uses both the prevailing minimum hourly wage rate of 
$8.25 to estimate a lower bound and a national average wage rate of 
$24.98 \49\ to take into consideration the variance in average wages 
across states as an upper bound.
---------------------------------------------------------------------------

    \46\ In FY 2017, USCIS adjudicated 15,860 denied (c)(8) EAD 
applications past the regulatory set timeframe. Since denied 
applicants would not obtain work authorization and would not lose 
working days, this population is not be impacted by this proposed 
rule and are therefore not included in the analysis for lost 
compensation.
    \47\ See When it comes to the minimum wage, we cannot just 
`leave it to the states' (November 10, 2016) available at: https://www.epi.org/publication/when-it-comes-to-the-minimum-wage-we-cannot-just-leave-it-to-the-states-effective-state-minimum-wages-today-and-projected-for-2020//. There are multiple tiers of minimum wages 
across many states that apply to size of business (revenue and 
employment), occupations, working hours, and other criteria. Some of 
these variations per state are described at: https://www.minimum-wage.org.
    \48\ Calculations (1) for prevailing minimum wage: $8.25 Hourly 
wage x benefits burden of 1.46 = $12.05; for federal minimum wage: 
$7.25 hourly wage x benefits burden of 1.46 = $10.59. See Minimum 
Wage, U.S. Department of Labor available at https://www.dol.gov/general/topic/wages/minimumwage; (2) (($12.05 wage-$10.59 wage)/
$10.59)) wage = .1378, which rounded and multiplied by 100 = 13.8 
percent.
    \49\ The wage update in April 2018 reflects the 2017 average for 
all occupations nationally. The data are found at the BLS 
Occupational Employment and Wage Estimates, United States, found at: 
https://www.bls.gov/oes/2018/may/oes_nat.htm#00-0000.
---------------------------------------------------------------------------

    In order to estimate the fully loaded wage rates, to include 
benefits such as paid leave, insurance, and retirement using the most 
recent Bureau of Labor Statistics (BLS) data, USCIS calculated a 
benefits-to-wage multiplier of 1.46 \50\ and multiplied it by the 
prevailing minimum hourly wage rate. The fully loaded per hour wage 
rate for someone earning the prevailing minimum wage rate is $12.05 
\51\ and $36.47 \52\ for someone earning the average wage rate. 
Multiplying these fully loaded hourly wage rates by 8 to reflect an 
assumed 8-hour workday produces daily wage rates of $96.36 and 
$291.77,\53\ respectively. USCIS also assumes that EAD holders would 
work 5 out of every 7 days, or an average of 21 days per month.
---------------------------------------------------------------------------

    \50\ The benefits-to-wage multiplier is calculated by the Bureau 
of Labor Statistics (BLS) as follows: ($36.32 Total Employee 
Compensation per hour)/($24.91 Wages and Salaries per hour) = 1.458 
(1.46 rounded). See U.S. Department of Labor, Bureau of Labor 
Statistics, Economic News Release, Table 1. Employer costs per hour 
worked for employee compensation and costs as a percent of total 
compensation: Civilian workers, by major occupational and industry 
group (April 2019), available at https://www.bls.gov/news.release/archives/ecec_03192019.pdf.
    \51\ Calculation: $8.25 x 1.46 = $12.05 per hour.
    \52\ Calculation: $24.98 x 1.46 = $36.47 per hour.
    \53\ Calculations: $12.05 per hour x 8 hours = $96.36 per day; 
$36.47 per hour x 8 hours = $291.77 per day.
---------------------------------------------------------------------------

    Using FY 2017 data, USCIS estimates that the 119,088 approved EAD 
applicants experienced an estimated

[[Page 47164]]

total 2,655,429 lost working days, and lost compensation could range 
from $255.88 million to $774.76 million.\54\ USCIS understands that not 
all EAD recipients would work in minimum or average wage occupations, 
but provides these estimates as possible lower and upper bounds for 
approved applicants who would engage in full-time employment. Table 10 
shows the number of applicants completed in a period longer than the 
30-day regulatory timeframe in FY 2017, the associated number of lost 
working days, and an estimate of the resulting lost compensation. The 
two categories over 120 days show the declining number of applications 
that remain pending after 200 days and the maximum number of days it 
took to adjudicate an initial EAD completed in FY 2017, which was 810 
calendar days.
---------------------------------------------------------------------------

    \54\ Calculations: 2,655,429 lost working days * ($96.36 per 
day) = $255.88 million; 2,655,429 lost working days * ($291.77 per 
day) = $774.76 million.

                            Table 10--Summary of Calculations for Initial Form I-765 for Pending Asylum Applicants in FY 2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            31-60 Days      61-90 Days      91-120 Days    121-200 Days    201-810 Days        Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
FY 2017 Completions.....................................          71,556          31,356          11,734           4,048             394         119,088
Lost Calendar Days......................................         899,402       1,377,308         817,073         466,524          91,019       3,651,326
Lost Working Days.......................................         691,314         992,880         581,237         330,038          59,960       2,655,429
Lost Compensation (lower bound).........................     $66,615,017     $95,673,917     $56,007,997     $31,802,462      $5,777,746    $255,877,138
Lost Compensation (upper bound).........................    $201,702,197    $289,689,023    $169,585,427     $96,293,999     $17,494,313    $774,764,960
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
Note: To calculate lost compensation USCIS uses the fully-loaded wages based on the prevailing minimum wage to calculate the lower bound and a national
  average wage to calculate the upper bound.

    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 reasonable substitutes for the labor 
the asylum applicants would have provided, this rule would primarily be 
a cost to these companies through lost productivity. USCIS requests 
comments on how it can apportion these impacts between transfers and 
costs.
    USCIS also recognizes that companies would incur additional costs 
not captured in the estimates of lost compensation above. In cases 
where companies cannot find reasonable substitutes for the labor the 
asylum applicants would have provided, affected companies would also 
lose profits from the lost productivity. In all cases, companies would 
incur opportunity costs by having to choose the next best alternative 
to immediately filling the job the pending asylum applicant would have 
filled.
    USCIS continues to resource the adjudication of pending asylum EAD 
applications. In response to the Rosario v. USCIS litigation and to 
comply with the court order, USCIS has dedicated as many resources as 
practicable to these adjudications but continues to face an increasing 
asylum application backlog, which in turn increases the numbers of 
applicants eligible for pending asylum EADs. However, this reallocation 
of resources is not a long-term sustainable solution because USCIS has 
many competing priorities and many time-sensitive adjudication 
timeframes. Reallocating resources in the long-term is not sustainable 
due to work priorities in other product lines. USCIS could hire more 
officers, but that would not immediately and in all cases shorten 
adjudication timeframes because (1) additional time would be required 
to onboard and train new employees and (2) for certain applications, 
additional time is needed to fully vet an applicant, regardless of 
staffing levels. In addition, there is currently no fee for asylum 
applications or the corresponding initial EAD applications, and the 
cost of adjudication is covered by fees paid by other benefit 
requesters. USCIS is uncertain of the actual cost impacts of hiring 
additional adjudicators to process these EAD applications at this time. 
If the backlog dissipates in the future, USCIS may seek to redistribute 
adjudication resources. USCIS may also redistribute adjudication 
resources for other operational needs.
    This proposed rule may result in a delay for some applicants to 
earn compensation if EAD processing is delayed beyond the 30-day 
regulatory timeframe. The lost compensation to asylum applicants could 
range from $255.88 million to $774.76 million annually, depending on 
the wages the asylum applicant would have earned. The ten-year total 
discounted costs at 3 percent could range from $2,182.68 million to 
$6,608.90 million and at 7 percent could range from $1,797.17 million 
to $5,441.62 million (years 2019-2028). USCIS recognizes that the 
impacts of this proposed rule could be overstated if the provisions in 
the broader asylum EAD NPRM are finalized as proposed.
    In instances where a company cannot hire replacement labor for the 
position the asylum applicant would have filled, USCIS acknowledges 
that delays may result in tax revenue losses to the government. It is 
difficult to quantify income tax losses because individual tax 
situations vary widely \55\ but USCIS estimates the potential loss to 
other employment tax programs, namely Medicare and social security 
which have a combined tax rate of 7.65 percent (6.2 percent and 1.45 
percent respectively).\56\ With both the employee and employer not 
paying their respective portion of Medicare and social security taxes, 
the total estimated tax loss for Medicare and social security is 15.3 
percent.\57\ Lost wages ranging from $255.88 million to $774.76 million 
would result in employment tax losses to the government ranging from 
$39.15 million to $118.54 million.\58\ Again,

[[Page 47165]]

depending on the circumstances of the employee, there could be 
additional federal income tax losses not estimated here. There may also 
be state and local income tax losses that would vary according to the 
jurisdiction.
---------------------------------------------------------------------------

    \55\ See More than 44 percent of Americans pay no federal income 
tax (September 16, 2018) available at https://www.marketwatch.com/story/81-million-americans-wont-pay-any-federal-income-taxes-this-year-heres-why-2018-04-16.
    \56\ The various employment taxes are discussed in more detail 
at https://www.irs.gov/businesses/small-businesses-self-employed/understanding-employment-taxes. See IRS Publication 15, Circular E, 
Employer's Tax Guide for specific information on employment tax 
rates. https://www.irs.gov/pub/irs-pdf/p15_18.pdf.
    \57\ Calculation: (6.2 Percent social security + 1.45 percent 
Medicare) x 2 employee and employer losses = 15.3 percent total 
estimated tax loss to government.
    \58\ Calculations: Lower bound lost wages $255.88 million x 15.3 
percent employee tax rate = $39.15 million.
    Upper bound lost wages $774.76 million x 15.3 percent employee 
tax rate = $118.54 million.
---------------------------------------------------------------------------

    In addition to taxes, USCIS also considered the effects of this 
rule on USCIS resources. In response to the Rosario v. USCIS litigation 
and to comply with the court order, USCIS has dedicated as many 
resources as practicable to adjudications of initial EAD applications 
for pending asylum applicants, but continues to face a historic asylum 
application backlog, which in turn increases the numbers of applicants 
eligible for pending asylum EADs. However, this reallocation of 
resources is not a long-term, sustainable solution because USCIS has 
many competing priorities and many time-sensitive adjudication 
timeframes. Reallocating resources in the long-term is not sustainable 
due to work priorities in other product lines. Hiring more officers 
could bring improvements but that would not immediately shorten 
adjudication timeframes because additional time would be required to 
onboard new employees, and train them. In addition, there is currently 
no fee for asylum applications or the corresponding initial EAD 
applications, and the cost of adjudication is covered by fees paid by 
other benefit requesters. USCIS is uncertain of the actual cost impacts 
of hiring additional adjudicators to process these EAD applications at 
this time. Finally, USCIS has found that certain applications 
inherently cannot be processed in a specific number of days due to 
vetting procedures and background checks that simply require additional 
time (see Table 10 where processing days in FY 2017 reached a maximum 
810 days). Therefore, meeting the 30-day timeframe does not solely 
depend on hiring more adjudication officers because for certain 
applications additional time is needed for processing. Thus, USCIS is 
proposing to remove the 30-day requirement rather than increasing the 
number of adjudication officers in the long-term.
    This proposed rule would result in reduced opportunity costs to the 
Federal Government. Since Rosario compelled USCIS to comply with the 
30-day provision in FY 2018, USCIS has redistributed its adjudication 
resources to work up to full compliance. If the 30-day timeframe is 
removed, these redistributed resources could be reallocated, 
potentially reducing delays in processing of other applications and 
avoiding costs associated with hiring additional employees. USCIS has 
not estimated these avoided costs.
    DHS also acknowledges the distributional impacts associated with an 
applicant waiting for an EAD onto the applicant's support network. DHS 
assumes the longer an asylum applicant's EAD is delayed, the longer the 
applicant's support network is providing assistance to the applicant. 
DHS cannot determine how much monetary or other assistance is provided 
to such applicants. DHS requests comments from the public on any data 
or sources that demonstrate the amount or level of assistance provided 
to asylum applicants who have pending EAD applications. DHS welcomes 
any comments from the public on costs to applicants from removing the 
30-day adjudication timeframe.
    USCIS does not anticipate that removing the separate 90-day EAD 
filing requirement would result in any costs to applicants or the 
Federal Government, as it makes a procedural change that benefits the 
applicant. DHS also welcomes public comments on any costs resulting 
from the removal of the 90-day renewal requirement.
(2) Benefits
    By eliminating the 30-day provision, DHS would be able to operate 
under long-term sustainable case processing times for initial EAD 
applications for pending asylum applicants, to allow sufficient time to 
address national security and fraud concerns, and to maintain 
technological advances in document production and identity verification 
that USCIS must fulfill as a part of its core mission within DHS.
    Applicants would rely on up-to-date processing times, which provide 
realistic expectations of adjudication times.
    This rule would end future litigation over the 30-day adjudication 
timeframe, such as the litigation referenced above. Even applications 
that are not subject to a set timeframe, however, could in some cases 
be the subject of litigation on ``unreasonable delay'' theories. And 
more important, as indicated above, as a primary goal, USCIS seeks to 
adequately vet applicants and adjudicate applications as quickly and 
efficiently as possible. DHS welcomes any public comments on the 
benefits described for the removal of the 30-day adjudication 
timeframe.
    USCIS would benefit from the removal of the 90-day renewal 
requirement, because regulations would be updated to match that of 
other EAD categories and it would ensure that the regulatory text 
reflects current DHS policy and regulations under DHS's 2017 AC21 Rule. 
USCIS welcomes any public comment on the benefits of the removal of the 
90-day renewal requirement.
(3) Labor Market Overview
    As discussed in the population section of this analysis, USCIS 
anticipates receiving approximately 478,721 Form I-765 applications 
annually from pending asylum applicants with an estimated 261,782 
initial applications and 212,255 renewal applications. Since this 
proposed rule would only affect initial applicants who experience 
potential delays in processing, USCIS estimates the affected population 
to be approximately 119,088 applications.\59\ The U.S. labor force 
consists of a total of 162,981,000 workers, according to the recent 
data (June 2019).\60\ Therefore, the population affected by this 
proposed rule represents 0.07 percent of the U.S. labor force, 
suggesting that the number of potential workers no longer expecting a 
30-day processing timeframe make up a very small percentage of the U.S. 
labor market.\61\ USCIS recognizes that unemployment rates have been 
historically low recently and the number of unemployed persons was 
5,975,000 in June 2019, and so providing EADs to pending asylum 
applicants potentially fills an economic need as discussed 
previously.\62\ However, USCIS must first be sufficiently assured of 
applicant eligibility and ensure all background and security checks are 
completed.
---------------------------------------------------------------------------

    \59\ In FY 2017, USCIS adjudicated 119,088 approved applications 
past the regulatory set timeframe.
    \60\ The BLS labor force data are found in Table A-1. Employment 
status of the civilian population by sex and age, seasonally 
adjusted, from the Current Population Survey July 2019 News Release: 
https://www.bls.gov/news.release/archives/empsit_07052019.pdf.
    \61\ Calculation: (119,088 approximate initial applicants who 
could experience processing delays per year/162,981,000 workers) 
*100 = 0.07 percent.
    \62\ The BLS labor force data are found in Table A-1. Employment 
status of the civilian population by sex and age, seasonally 
adjusted, from the Current Population Survey July 2019 News Release: 
https://www.bls.gov/news.release/archives/empsit_07052019.pdf.
---------------------------------------------------------------------------

    In any case, USCIS notes that this proposed rule does not introduce 
any newly eligible workers into the labor force, or permanently prevent 
any eligible workers from joining the labor force. This proposed rule 
only amends the processing of initial and renewal employment 
authorizations for pending asylum applicants. The ability of pending 
asylum applicants to be eligible for requesting employment 
authorization in certain circumstances is in existing regulations; this 
proposed

[[Page 47166]]

rulemaking is not seeking to alter which pending asylum applicants are 
eligible to apply for employment authorization. Therefore, this 
proposed rule would not change the composition of the population of 
229,911 estimated applicants who may apply for employment authorization 
or the number of workers entering the labor force; rather, this rule 
could delay 119,088 pending asylum applicants from entering the U.S. 
labor market by an average of approximately 31 days each, for a total 
of 3,651,326 days.\63\ DHS welcomes public comment on this assessment 
of this proposed rule.
---------------------------------------------------------------------------

    \63\ Calculation: 3,654,326 total days/119,088 applicants = 31 
days (rounded).
---------------------------------------------------------------------------

(4) Alternatives
(1) Alternative: 90-Day Regulatory Timeframe
    DHS considered an alternative to the proposed removal of the 30-day 
regulatory timeframe, to instead extend the regulatory timeframe to 90 
days. Currently, under the Rosario v. USCIS court order, USCIS must 
comply with its existing regulation requiring a 30-day timeframe and 
process all initial EAD applications for asylum applicants within 30 
days. Under this alternative, USCIS would instead process all future 
applications within 90 days. In FY 2017, prior to the Rosario v. USCIS 
court order, USCIS was able to sustainably process approximately 47 
percent of applications within 30 days. USCIS, therefore, assumes 47 
percent of applicants would remain unaffected under this 90-day 
alternative. USCIS assumes the remaining 53 percent of applicants would 
have their processing time extended under this alternative. In FY 2017 
there were a total of 119,088 approved applications for which 
processing took more than 30 days. USCIS assumes approved applications 
that were processed in 31-60 days, and 61-90 days in FY 2017 (71,556 
and 31,356 applicants, respectively) would be processed in a similar 
amount of time under this alternative. For the 16,176 approved 
applications that took more than 90 days to process in FY 2017, USCIS 
assumes the processing time under this alternative would be 90 days, as 
this alternative would set the maximum processing time at 90 days. 
USCIS notes that while processing for this group under the 90-day 
alternative would be longer than the current 30-day processing time 
under the Rosario v. USCIS court order, it would be shorter as compared 
to the proposed rule, which proposes to remove any processing 
timeframe.\64\
---------------------------------------------------------------------------

    \64\ In FY 2017, USCIS adjudicated 16,176 approved and 5,202 
denied (c)(8) EAD applications in over 90 days.
---------------------------------------------------------------------------

    Based on the analysis provided in the Transfers and Costs section, 
USCIS used FY 2017 daily processing data to estimate lost wages, lost 
taxes, and other benefits for this alternative proposal. In FY 2017, 
USCIS adjudicated 102,912 approved applications \65\ between 31 and 90 
days. USCIS estimates that under this alternative the 102,912 approved 
EAD applicants would have experienced an estimated total 1,684,194 lost 
working days, and lost compensation could have ranged from $158.82 
million to $480.89 million \66\ annually depending on the wages the 
asylum applicant would have earned. In FY 2017, USCIS adjudicated 
16,176 approved applications in greater than 90 days. USCIS estimates 
that under this alternative the 16,176 approved EAD applicants would 
have experienced an estimated total 679,392 lost working days, and lost 
compensation could have ranged from $65.47 million to $198.23 million 
annually depending on the wages the asylum applicants would have 
earned. Table 11 shows the number of approved applications completed in 
more than 30 days in FY 2017, the associated number of lost working 
days, and an estimate of the resulting lost compensation.
---------------------------------------------------------------------------

    \65\ In FY 2017, USCIS adjudicated 10,658 denied (c)(8) EAD 
applications between 31 and 90 days. Since denied applicants would 
not obtain work authorization and would not lose working days, this 
population is not be impacted by this proposed rule and are 
therefore not included in the analysis for lost compensation.
    \66\ Calculations: 1,648,194 lost working days * ($96.36 per 
day) = $158.82 million; 1,648,194 lost working days * ($291.77 per 
day) = $480.89 million.

        Table 11--Summary of Calculations for Initial Form I-765 for Pending Asylum Applicants in FY 2017
----------------------------------------------------------------------------------------------------------------
                                                                                   Greater than
                                                    31-60 Days      61-90 Days        90 days          Total
----------------------------------------------------------------------------------------------------------------
FY 2017 Completions.............................          71,556          31,356          16,176         119,088
Lost Calendar Days..............................         899,402       1,377,308         970,560       3,247,270
Lost Working Days...............................         691,314         992,880         679,392       2,377,451
Lost Compensation (lower bound).................     $66,615,017     $95,673,917     $65,466,213    $227,755,147
Lost Compensation (upper bound).................    $201,702,197    $289,689,023    $198,223,758    $689,614,978
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
Note: The prevailing minimum wage is used to calculate the lower bound while a national average wage is used to
  calculate the upper bound lost compensation.

    In addition to the lost wages, USCIS acknowledges that such 
processing delays may result in the loss in tax revenue to the 
government. Similar to the analysis in the Transfers and Costs section, 
USCIS estimates the potential loss to Medicare and social security. 
Lost wages ranging $227.76 million to $689.61 million would result in 
employment tax revenue losses to the government ranging from $34.85 
million to $105.51 million annually.\67\ Again, depending on the 
circumstances of the employee, there could be additional federal income 
tax losses not estimated here. There may also be state and local income 
tax losses that would vary according to the jurisdiction. The ten-year 
total discounted lost compensation to asylum applicants at 3 percent 
could range from $1,942.80 million to $5,882.56 million and at 7 
percent could range from $1,599.66 million to $4,843.57 million (years 
2019-2028). USCIS recognizes that the impacts of this alternative could 
be overstated if the provisions in the broader asylum EAD NPRM are 
finalized as proposed. Specifically, the broader asylum EAD NPRM would 
limit or delay eligibility for employment authorization for certain 
asylum applicants. Accordingly, if the population of aliens is less 
than estimated as a result of the broader asylum EAD rule, the 
estimated impacts of this alternative could be overstated because the 
population affected may be lower than estimated in this rule.
---------------------------------------------------------------------------

    \67\ Calculations: Lower bound lost wages $227.76 million x 15.3 
percent employee tax rate = $34.85 million.
    Upper bound lost wages $689.61 million x 15.3 percent employee 
tax rate = $105.51 million.

---------------------------------------------------------------------------

[[Page 47167]]

    As previously discussed, USCIS does not know the portion of overall 
impacts of this rule that are transfers or costs, but estimates that 
the maximum monetized impact of this 90-day alternative from lost 
compensation is $689.61 million annually. Accordingly, if companies are 
unable to find reasonable labor substitutes for the position the asylum 
applicant would have filled then $689.61 million is the estimated 
maximum monetized cost of the rule and $0 is the estimated minimum in 
monetized transfers. Additionally, under this scenario, there would be 
a reduction of $105.51 million in employment tax transfers from 
companies and employees to the Federal Government. Conversely, if all 
companies are able to easily find reasonable labor substitutes, they 
will bear little or no costs, so $689.61 million will be transferred 
from asylum applicants to workers currently in the labor force or 
induced back into the labor force (we assume no tax losses as a labor 
substitute was found).
(2) Comparison of Alternatives
    Currently, the Rosario v. USCIS court decision requires USCIS to 
process asylum EAD applications in 30 days. This rule proposes to 
remove any adjudication timeframe for processing future asylum EAD 
applications. USCIS also considered an alternative under which USCIS 
would process all future applications within 90 days. In the table 
below, USCIS compares the lost working days and associated lost 
compensation and taxes under the 90-day alternative with the proposed 
rule. As previously discussed, if companies can find replacement labor 
for the position the asylum applicant would have filled, the effects of 
this rule would be primarily transfers from asylum applicants to others 
already in the labor market (or induced to return). If companies cannot 
find reasonable substitutes, the rule would primarily be a cost to 
these companies through lost productivity and profits, and also result 
in a decrease in employment tax transfers from employees to the 
government. USCIS uses the lost compensation to asylum applicants as a 
measure of the overall impact of the rule--either as distribution 
impacts (transfers) or as a proxy for businesses' cost for lost 
productivity.

                                             Table 12--Comparison of Alternatives, Using FY 2017 Annual Data
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                               Lost            Lost
                                                             Number of                                                      employment      employment
                                                            applicants                         Lost            Lost         taxes when      taxes when
                                                            impacted by    Lost working    compensation    compensation     replacement     replacement
                                                            change (FY         days        (lower bound)   (upper bound)   labor is not    labor is not
                                                               2017)                                                       found (lower    found (upper
                                                                                                                              bound)          bound)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current 30-day Processing Timeframe (i.e., no action                 N/A             N/A             N/A             N/A             N/A             N/A
 baseline)..............................................
90-day Adjudication Timeframe Alternative...............         119,088       2,377,451    $227,755,147    $689,614,978     $34,846,537    $105,511,092
No Adjudication Timeframe (i.e., Proposed Alternative)..         119,088       2,655,429     255,877,138     774,764,960      39,149,202     118,539,039
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.

    The distribution of existing government resources would vary under 
the baseline, the proposed rule, and the 90-day alternative. When 
Rosario compelled USCIS to comply with the 30-day provision in FY 2018 
(the baseline), USCIS redistributed its adjudication resources to work 
up to full compliance. If the 30-day timeframe is removed (the proposed 
rule), all of these redistributed resources could be reallocated back 
to the way they were pre-Rosario (which USCIS assumes will look like FY 
2017). Under the 90-day alternative, some of the resources could be 
moved back, but not all of them because in FY 2017 USCIS was able to 
adjudicate 92 percent of applicants in 90 days.
    DHS decided not to propose the 90-day alternative because although 
it would provide USCIS with more time to adjudicate initial EAD 
applications from pending asylum applicants and applicants with a new 
expected timeframe, it would not provide USCIS with the certainty and 
flexibility it needs to fulfill its core mission. Further, under DHS's 
final 2017 AC21 Rule, USCIS removed the 90-day timeframe for all other 
EAD categories. Maintaining any adjudication timeframe for this EAD 
would unnecessarily constrict adjudication workflows. Ultimately, USCIS 
is unable to plan its workload and staffing needs with the level of 
certainty that a binding timeframe may require, and has no way of 
predicting what national security and fraud concerns may be or what 
procedures would be necessary in the future. DHS therefore declined to 
adopt a 90-day regulatory timeframe, which would unnecessarily place 
operational constraints on adjudicators.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, Public Law 104-121 (March 29, 1996), requires federal agencies to 
consider the potential impact of regulations on small entities during 
the development of their rules. The term ``small entities'' refers to 
small businesses, not-for-profit organizations that are not dominant in 
their fields, and governmental jurisdictions with populations of less 
than 50,000.This proposed rule would continue to provide employment 
authorization to asylum applicants who voluntarily apply for such 
benefits. This proposed rule only removes the 30-day adjudication 
timeframe and the corresponding 90-day renewal requirement. For the 
purposes of the RFA, DHS estimates that approximately 119,088 
individuals may be impacted by this proposed rule annually. Individuals 
are not considered by the RFA to be a small entity. As previously 
explained, this proposed rule may result in lost compensation for some 
initial applicants whose EAD processing is delayed beyond the 30-day 
regulatory timeframe. However, the proposed rule does not directly 
regulate employers.
    The RFA does not require agencies to examine the impact of indirect 
costs to small entities. Regardless, DHS is unable to identify the next 
best alternative to hiring a pending asylum applicant and is therefore 
unable to reliably estimate the potential indirect costs to small 
entities from this proposed rule.

[[Page 47168]]

    DHS requests comments from the public that would assist in 
understanding costs not described herein. An initial regulatory 
flexibility analysis follows.
    (1) A description of the reasons why the action by the agency is 
being considered.
    This proposed rule would remove the 30-day regulatory timeframe for 
the adjudication of initial EAD applications by pending asylum 
applicants because it is outdated, does not account for the recent 
volume of applications and no longer reflects current operations. The 
proposed rule would also make a technical change to remove the 90-day 
filing requirement 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.
    (2) A succinct statement of the objectives of, and legal basis for, 
the proposed rule.
    The authority of the Secretary of Homeland Security (Secretary) for 
these regulatory amendments is found in various sections of the 
Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and the 
Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 
2135, 6 U.S.C. 101 et seq. General authority for issuing the 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 to establish such regulations as she deems 
necessary for carrying out such authority. Further authority for the 
regulatory amendment in the final rule is found in section 208(d)(2) of 
the INA, 8 U.S.C. 1158(d)(2), which states an applicant for asylum is 
not entitled to employment authorization, and may not be granted asylum 
application-based employment authorization prior to 180 days after 
filing of the application for asylum, but otherwise authorizes the 
Secretary to prescribe by regulation the terms and conditions of 
employment authorization for asylum applicants.
    The proposed rule would remove the 30-day adjudication timeframe in 
order to better align with DHS processing times achieved in FY 2017, 
reduce confusion regarding EAD renewal requirements and ensure the 
regulatory text reflects current DHS policy and regulations under DHS's 
final 2017 AC21 Rule.
    (3) A description of and, where feasible, an estimate of the number 
of small entities to which the proposed rule will apply.
    This proposed rule would directly regulate pending asylum 
applicants, or individuals, applying for work authorization. However, 
DHS presents this IRFA as the proposed rule may indirectly impact small 
entities who incur opportunity costs by having to choose the next best 
alternative to immediately filling the job the asylum applicant would 
have filled. DHS cannot reliably estimate how many small entities may 
be indirectly impacted as a result of this proposed rule, but DHS 
believes the number of small entities directly regulated by this rule 
is zero.
    (4) A description of the projected reporting, recordkeeping, and 
other compliance requirements of the proposed rule, including an 
estimate of the classes of small entities which will be subject to the 
requirement and the type of professional skills necessary for 
preparation of the report or record.
    This rule would not directly impose any reporting, recordkeeping, 
or other compliance requirements on small entities. Additionally, this 
rule would not require any additional professional skills.
    (5) Identification, to the extent practicable, of all relevant 
federal rules that may duplicate, overlap or conflict with the proposed 
rule.
    DHS is unaware of any relevant federal rule that may duplicate, 
overlap, or conflict with the proposed rule. Elsewhere in this 
preamble, DHS notes that notwithstanding the language of the parallel 
DOJ regulations in 8 CFR 1208.7, as of the effective date of a final 
rule, the revised language of 8 CFR 208.7(a)(1) and removal of 8 CFR 
208.7(d) would be binding on DHS and its adjudications. DHS would not 
be bound by the 30-day provision of the DOJ regulations at 8 CFR 
1208.7(a)(1). DOJ has no authority to adjudicate employment 
authorization applications. DHS has been in consultation with DOJ on 
this proposed rule, and DOJ may issue conforming changes at a later 
date.
    (6) Description of any significant alternatives to the proposed 
rule which accomplish the stated objectives of applicable statutes and 
which minimize any significant economic impact of the proposed rule on 
small entities.
    DHS is not aware of any alternatives to the proposed rule that 
accomplish the stated objectives and that would minimize the economic 
impact of the proposed rule on small entities as this rule imposes no 
direct costs on small entities. DHS requests comments and seeks 
alternatives from the public that will accomplish the same objectives.

C. Congressional Review Act

    This proposed rule is a major rule, as defined by 5 U.S.C. 804. 
Accordingly, absent exceptional circumstances, this rule, if enacted as 
a final rule, would be effective at least 60 days after the date on 
which Congress receives a report submitted by DHS under the 
Congressional Review Act, or 60 days after the final rule's 
publication, whichever is later.

D. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA) requires each 
federal agency to prepare a written statement assessing the effects of 
any federal mandate in a proposed or final agency rule that may result 
in a $100 million or more expenditure (adjusted annually for inflation) 
in any one year by state, local, and tribal governments, in the 
aggregate, or by the private sector. The value equivalent of $100 
million in 1995, adjusted for inflation to 2018 levels by the Consumer 
Price Index for All Urban Consumers (CPI-U), is $165 million.
    Some private sector entities may incur a cost, as they could be 
losing the productivity and potential profits the asylum applicant 
could have provided had the asylum applicant been in the labor force 
earlier. Entities may also incur opportunity costs by having to choose 
the next best alternative to immediately filling the job the asylum 
applicant would have filled. In such instances, USCIS does not know if 
or to what extent this would impact the private sector, but assesses 
that such impacts would result indirectly from delays in employment 
authorization, and would not be a consequence of an enforceable duty. 
As a result, such costs would not be attributable to a mandate under 
UMRA. See 2 U.S.C. 658(6), (7) (defining a federal private sector 
mandate as, inter alia, a regulation that imposes an enforceable duty 
upon the private sector except for a duty arising from participation in 
a voluntary Federal program); 2 U.S.C. 1502(1). Similarly, any costs or 
transfer effects on state and local governments would not result from a 
mandate under UMRA. See 2 U.S.C. 658 (5), (6) (defining a federal 
intergovernmental mandate as, inter alia, a regulation that imposes an 
enforceable duty upon State, local, or tribal governments, except for a 
duty arising from participation in a voluntary Federal program); 2 
U.S.C 1502(1). USCIS nonetheless welcomes public comment on potential 
UMRA impacts.

E. Executive Order 13132 (Federalism)

    This proposed rule would not have substantial direct effects on the 
states, on the relationship between the Federal Government and the 
states, or on the distribution of power and

[[Page 47169]]

responsibilities among the various levels of government. Therefore, in 
accordance with section 6 of Executive Order 13132 (Federalism), it is 
determined that this proposed rule does not have sufficient federalism 
implications to warrant the preparation of a federalism summary impact 
statement.

F. Executive Order 12988 (Civil Justice Reform)

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988 (Civil Justice Reform).

G. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
agencies are required to submit to OMB, for review and approval, any 
reporting requirements inherent in a rule. See Public Law 104-13, 109 
Stat. 163 (May 22, 1995). This rule does not impose any reporting or 
recordkeeping requirements under the Paperwork Reduction Act.

H. Family Assessment

    DHS has assessed this action in accordance with section 654 of the 
Treasury General Appropriations Act, 1999, Public Law 105-277, Div. A. 
With respect to the criteria specified in section 654(c)(1), DHS has 
determined that the proposed rule may delay the ability for some 
initial applicants to work, which could decrease disposable income of 
families, as the lost compensation to asylum applicants could range 
from $255.88 million to $774.76 million annually depending on the wages 
the asylum applicant would have earned. For the reasons stated 
elsewhere in this preamble, however, DHS has determined that the 
benefits of the action justify the potential financial impact on the 
family. Further, the potential for lost compensation does not account 
for the fact that compliance with the 30-day timeframe is not 
sustainable in the long-term, as DHS has been unable to meet the 30-day 
processing timeframe in certain cases even with additional adjudication 
resources.

I. Executive Order 13175

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would not have a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes.

J. National Environmental Policy Act (NEPA)

    DHS Directive (Dir) 023-01 Rev. 01 and Instruction (Inst) 023-01-
001 Rev. 1 establish the policies and procedures that DHS and its 
components use to comply with NEPA and the Council on Environmental 
Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500-
1508.
    The CEQ regulations allow federal agencies to establish, with CEQ 
review and concurrence, categories of actions (``categorical 
exclusions'') which experience has shown do not individually or 
cumulatively have a significant effect on the human environment and, 
therefore, do not require an Environmental Assessment (EA) or 
Environmental Impact Statement (EIS). 40 CFR 1507.3(b)(1)(iii), 1508.4. 
Inst. 023-01-001 Rev. 01 establishes Categorical Exclusions that DHS 
has found to have no such effect. Inst. 023-01-001 Rev. 01 Appendix A 
Table 1. Inst. 023-01-001 Rev. 01 requires the action to satisfy each 
of the following three conditions: (1) The entire action clearly fits 
within one or more of the categorical exclusions; (2) the action is not 
a piece of a larger action; and (3) no extraordinary circumstances 
exist that create the potential for a significant environmental effect. 
Dir. 023-01 Rev. 01 section V.B (1)-(3).
    This proposed rule would remove the following purely administrative 
provisions from an existing regulation: (1) The 30-day adjudication 
provision for EAD applications filed by asylum applicants, and (2) the 
provision requiring pending asylum applicants to submit Form I-765 
renewal applications 90 days before their employment authorization 
expires. 8 CFR 208.7(a)(1), (d).
    Assuming that NEPA applies to this rule at all,\68\ this rule falls 
within categorical exclusions number A3(a) in Inst. 023- 01-001 Rev. 
01, Appendix A, Table 1: ``Promulgation of rules . . . strictly of an 
administrative or procedural nature'' and A3(d) for rules that 
interpret or amend an existing regulation without changing its 
environmental effect. This rule is not part of a larger action and 
presents no extraordinary circumstances creating the potential for 
significant environmental effects. Therefore, this proposed rule is 
also categorically excluded from further NEPA review.
---------------------------------------------------------------------------

    \68\ DHS reserves its position that NEPA generally does not 
apply to USCIS rules.
---------------------------------------------------------------------------

K. National Technology Transfer and Advancement Act

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through OMB, with an explanation of why using these standards would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., specifications of 
materials, performance, design, or operation; test methods; sampling 
procedures; and related management systems practices) that are 
developed or adopted by voluntary consensus standard bodies. This 
proposed rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

L. Executive Order 12630

    This proposed rule would not cause the taking of private property 
or otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

M. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045 requires agencies to consider the impacts of 
environmental health risk or safety risk that may disproportionately 
affect children. DHS has reviewed this proposed rule and determined 
that this rule is not a covered regulatory action under Executive Order 
13045. Although the rule is economically significant, it would not 
create an environmental risk to health or risk to safety that might 
disproportionately affect children. Therefore, DHS has not prepared a 
statement under this executive order.

N. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    Executive Order 13211 requires agencies to consider the impact of 
rules that significantly impact the supply, distribution, and use of 
energy. DHS has reviewed this proposed rule and determined that this 
proposed rule would not have a significant adverse effect on the 
supply, distribution, or use of energy. Therefore, this proposed rule 
does not require a Statement of Energy Effects under Executive Order 
13211.

[[Page 47170]]

V. List of Subjects and Regulatory Amendments

List of Subjects in 8 CFR Part 208

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

    Accordingly, DHS proposes to amend part 208 of chapter I of title 8 
of the Code of Federal Regulations as follows:

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

0
1. The authority citation for part 208 continues to read as follows:

     Authority:  8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title 
VII of Public Law 110-229; 8 CFR part 2.


Sec.  208.7  [Amended]

0
 2. Amend section 208.7 by:
0
a. In paragraph (a)(1), removing the words ``If the asylum application 
is not so denied, the Service shall have 30 days from the date of 
filing of the request employment authorization to grant or deny that 
application, except that no'' and adding, in their place, the word 
``No'';
0
b. In paragraphs (a)(1) and (c)(3), emoving the words ``the Service'' 
and adding, in their place, the word ``USCIS''; and
0
c. Removing paragraph (d).

Kevin K. McAleenan,
Acting Secretary of Homeland Security.
[FR Doc. 2019-19125 Filed 9-6-19; 8:45 am]
 BILLING CODE 9111-97-P