[Federal Register Volume 85, Number 120 (Monday, June 22, 2020)]
[Rules and Regulations]
[Pages 37502-37546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13391]



[[Page 37501]]

Vol. 85

Monday,

No. 120

June 22, 2020

Part II





 Department of Homeland Security





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8 CFR Part 208





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

  Federal Register / Vol. 85, No. 120 / Monday, June 22, 2020 / Rules 
and Regulations  

[[Page 37502]]


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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: Final rule.

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SUMMARY: This final rule removes a Department of Homeland Security 
(DHS) 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. This rule also removes the 
provision requiring that the application for renewal must be received 
by USCIS 90 days prior to the expiration of the employment 
authorization.

DATES: This final rule is effective August 21, 2020.

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. Executive Summary
    A. Purpose of the Regulatory Action
    B. Legal Authority
    C. Summary of the Final Rule Provisions
    D. Summary of Costs and Benefits
    E. Effective Date
    F. Implementation
II. Background and Discussion
    A. Elimination of 30-Day Processing Timeframe
    B. Removal of the 90-Day Filing Requirement
    C. Corresponding U.S. Department of Justice (DOJ) Regulations
III. Response to Public Comments on the Proposed Rule
    A. General Feedback on the NPRM
    1. General Support for the NPRM
    2. General Opposition to the NPRM
    B. DHS Statutory Authority and Legal Issues
    1. DHS Statutory Authority
    2. Rosario v. USCIS Court Order
    3. Other Comments on Statutory Authority or Legal Issues
    C. Removal of 30-Day Processing Timeframe
    1. DHS Rationale and Need for the Rule
    D. Removal of 90-Day Filing Requirement
    1. Necessity of Rule and DHS Rationale
    E. Statutory and Regulatory Requirements
    1. Costs and Benefits (E.O. 12866 and 13563)
    a. Costs Associated With Hiring Additional Immigration Officers
    b. Population and Effect of Rule on Processing Times
    c. Wage Bases for Labor Earnings
    d. Lost Wages and Benefits
    e. Impact on Support Network
    f. Costs Related to Socioeconomic Factors and Impacts
    g. Impacts to Companies and Employers
    h. Tax Impacts
    i. Small Entity Impacts
    j. Benefits
    2. Other Statutory and Regulatory Requirements
    F. Out of Scope
    1. Comments on the Broader Asylum EAD NPRM
    2. Other Out of Scope Comments
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 Final Rule
    3. Population
    4. Transfers, Costs, and Benefits of the Rule
    a. Transfers and Cost
    b. Benefits
    c. Labor Market Overview
    d. Alternatives
    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
    O. Signature

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
HSA Homeland Security Act of 2002
INA Immigration and Nationality Act
NPR Notice of Proposed Rulemaking
USCIS U.S. Citizenship and Immigration Services

I. Executive Summary

A. Purpose of the Regulatory Action

    On September 9, 2019, DHS published a notice of proposed rulemaking 
in which it laid out its intention 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 was proposed to (1) 
ensure USCIS has sufficient time to receive, screen, and process 
applications for an initial grant of employment authorization based on 
a pending asylum application, and to also (2) reduce opportunities for 
fraud and protect the security-related processes undertaken for each 
EAD application.\1\ DHS also proposed 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 
was proposed 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. DHS provided its analysis and 
justifications and invited public comment. Following the review and 
analysis of public comments, DHS is adopting its proposed regulation in 
all material respects,\2\ and incorporates by reference the reasoning, 
and data in the proposed rule, except to the extent indicated

[[Page 37503]]

below. DHS also provides more recent data below, where available.
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    \1\ As noted in the proposed rule, prior to the Rosario v. 
USCIS, 365 F. Supp. 3d 1156 (W.D. Wash. 2018), court order in fiscal 
year 2017, the adjudication processing times for these employment 
authorization applications exceeded the regulatory set timeframe of 
30 days more than half the time. In response to the Rosario v. USCIS 
litigation and to comply with the court order, USCIS 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, and thus is 
finalizing this rule.
    \2\ DHS has made one technical correction to the proposed rule. 
DHS had proposed to replace old references to ``the Service'' in 8 
CFR 208.7(a)(1) and (c)(3) with references to USCIS. But in context, 
the reference to ``the Service'' in 8 CFR 208.7(c)(3) is best read 
to refer to functions currently performed by U.S. Immigration and 
Customs Enforcement, a different component of DHS. The final rule 
therefore replaces the latter reference to ``the Service'' with a 
reference to ``DHS'' more broadly, rather than just USCIS.
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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 final 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 he deems 
necessary for carrying out such authority. See also 6 U.S.C. 
271(a)(3)(A), (b). 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 that 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. Summary of the Final Rule Provisions

    DHS considered the public comments received and this final rule 
adopts the regulatory text proposed in the Notice of Proposed 
Rulemaking (NPRM) published in the Federal Register on September 9, 
2019, in all material respects. See Removal of 30-Day Processing 
Provision for Asylum Applicant-Related Form I-765 Employment 
Authorization Applications, Proposed Rule, 84 FR 47148.
    As a consequence, this final rule makes the following major 
revisions to the application for employment authorization for asylum 
seekers program regulations:
    1. Eliminates the 30-day adjudication requirement for initial 
filings; and
    2. eliminates the requirement that applications to renew employment 
authorization must be received by USCIS 90 days prior to the expiration 
of the applicant's employment authorization.

D. Summary of Costs and Benefits

    DHS notes that the estimates from the NPRM regarding unemployment, 
number of asylum applicants per year, and USCIS processing are not 
currently applicable as COVID-19 has had a dramatic impact on all 
three. DHS offers this analysis as a glimpse of the potential impacts 
of the rule, but the analysis relies on assumptions related to a pre-
COVID economy. While future economic conditions are currently too 
difficult to predict with any certainty, DHS notes that a higher 
unemployment rate may result in lower costs of this rule as replacing 
pending asylum applicant workers would most likely be easier to do. 
Consequently, as unemployment is high, this rule is less likely to 
result in a loss of productivity on behalf of companies unable to 
replace forgone labor.
    DHS is removing 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, 365 F. Supp. 3d 1156 (W.D. 
Wash. 2018), 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 
Rosario 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 finds this 
reallocation of resources unsustainable as a long-term solution because 
it removes resources from competing work priorities in other product 
lines and adds delays to other time-sensitive adjudication timeframes. 
By eliminating the 30-day adjudicative timeframe, USCIS is better able 
to prioritize status-granting workloads based on agency and department 
priorities. USCIS has not estimated the costs of hiring additional 
officers and therefore has not estimated the costs that might be 
avoided if the major revisions in this final rule are not implemented. 
Hiring more officers would not immediately and in all cases shorten 
adjudication timeframes because: (1) Additional time would be required 
to recruit, onboard and train new employees; and, (2) for certain 
applications, additional time is needed to fully vet applicants, 
regardless of staffing levels. Further, simply hiring more officers is 
not always feasible due to budgetary constraints and the fact that 
USCIS conducts notice and comment rulemaking to raise fees and increase 
revenue for such hiring actions. There is currently no fee for asylum 
applications or the corresponding initial EAD applications,\3\ and the 
cost to the agency for adjudication is covered by fees paid by other 
benefit requesters. As a primary goal, USCIS seeks to adequately vet 
applicants and adjudicate applications as quickly and efficiently as 
possible. However, this final rule may delay the ability to work for 
some initial applicants whose EAD processing is delayed beyond the 30-
day regulatory timeframe.
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    \3\ 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 (known as the 
fee rule, through which USCIS analyzes adjudicative and operational 
costs biannually and sets fees, see 84 FR 6228- (Nov. 14, 2019) 
(proposed rule), but it is uncertain whether such a revised fee 
structure would reduce the overall resource burden associated with 
the 30-day adjudication timeframe.
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    The impacts of this rule are measured against a baseline. While we 
have added some more recent data and information, pursuant to public 
comments, the costs are benchmarked to FY 2017, consistent with the 
NPRM. This baseline reflects the best assessment of the way the world 
would look absent this action. For this rulemaking, USCIS assumes that 
in the absence of this final rule the baseline amount of time that 
USCIS would take to adjudicate would be 30 days. USCIS also assumes 
that after this final rule becomes effective, 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 will occur after 
this rule becomes effective. USCIS believes the FY 2017 timeframes are 
sustainable and expects to meet these timeframes following the 
effective date of this rule. Therefore, USCIS analyzed 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.
    USCIS notes that in FY 2018, 80.3 percent of applications were 
processed within 30 days and 97.5 percent were processed within 60 
days. In FY 2019, the figures were 96.9 percent and 99.2 percent, 
respectively. In the analysis of impacts of this rule, USCIS assumed 
100

[[Page 37504]]

percent of adjudications happened within 30 days.\4\ However, because 
actual adjudications in FYs 2018 and 2019 within the 30-day timeframe 
are slightly less than the 100 percent analyzed, USCIS has over-
estimated the impacts of this rule with respect to this variable when 
less than 100 percent of adjudications happen within 30 days. It is 
noted that the reliance on the 100 percent rate slightly overstates the 
costs.
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    \4\ The information regarding the processing of these 
applications was provided by USCIS Office of Performance and Quality 
(OPQ).
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    The impacts of this rule include both potential distributional 
effects (which are transfers) and costs.\5\ The potential 
distributional impacts fall on the asylum applicants who may be delayed 
in entering the U.S. labor force. The potential distributional impacts 
(transfers) would be in the form of lost opportunity to receive 
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 may 
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 may be 
losing the productivity and potential profits the asylum applicant may 
have provided had the asylum applicant been in the labor force 
earlier.\6\
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    \5\ 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.
    \6\ The analysis accounts for delayed entry into the labor 
force, and does not account for the potential circumstance under 
which this rule may completely foreclose an alien's entry into the 
labor force. Such a possible circumstance could occur if USCIS 
ultimately denies an EAD application that was pending past 30 days 
due to this rule, solely because the underlying asylum application 
had been denied during the extended pendency of the EAD application. 
In such a scenario, there would be additional costs and transfer 
effects due to this rule. Such costs and transfer effects are not 
accounted for below. Similarly, the rule does not estimate avoided 
turnover costs to the employer associated with such a scenario.
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    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 a reasonable substitute for the labor 
an asylum applicant 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 10-year total 
discounted lost compensation to asylum applicants at 3 percent could 
range from $2.183 billion to $6.609 billion and at 7 percent could 
range from $1.797 billion to $5.442 billion (years 2020-2029).
    USCIS recognizes that the impacts of this final rule could be 
overstated if the provisions of a separate NPRM that DHS published in 
November 2019 (``broader asylum EAD NPRM'') are finalized as proposed. 
See Asylum Application, Interview, and Employment Authorization for 
Applicants, Proposed Rule, 84 FR 62374 (Nov. 14, 2019). Specifically, 
the broader asylum EAD NPRM would limit or delay eligibility for 
employment authorization for certain asylum applicants.\7\ 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.
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    \7\ In the broader asylum EAD NPRM, DHS proposed to modify its 
current regulations governing asylum applications, interviews, and 
eligibility for employment authorization based on a pending asylum 
application. That NPRM was intended to 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).
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    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 \8\ 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).\9\ 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.\10\ 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.\11\ 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.
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    \8\ See More than 44 percent of workers 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.
    \9\ 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.
    \10\ 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.
    \11\ 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 rule will possibly result in reduced opportunity costs to the 
federal government. Since the Rosario court order compelled USCIS to 
comply with the 30-day provision in FY 2018, USCIS has redistributed 
its adjudication resources to work up to full compliance. By removing 
the 30-day timeframe, these redistributed resources can be reallocated, 
potentially reducing delays in processing of status-granting benefit 
requests, and avoiding costs associated with hiring additional 
employees. USCIS has not estimated these avoided

[[Page 37505]]

costs. Additionally, USCIS does not anticipate that removing the 
separate 90-day EAD filing requirement would result in any costs to the 
federal government.
    This rule will 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 technical change removing the 90-day filing requirement is 
expected to reduce confusion regarding EAD renewal requirements for 
pending asylum applicants and ensure the regulatory text reflects 
current DHS policy and regulations under DHS's final 2017 AC21 
Rule.\12\
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    \12\ 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 (1) must properly file 
his or her renewal request for employment authorization before its 
expiration date; (2) must 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, if the applicant 
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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    Table 1 provides a detailed summary of the regulatory changes and 
the expected impacts of this final rule.

                                   Table 1--Summary of Provisions and Impacts
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                                                                  Expected costs and
         Current provision             Change to provision      transfers from changed    Expected benefits from
                                                                      provision              changed provision
----------------------------------------------------------------------------------------------------------------
USCIS has a 30-day initial EAD       USCIS is eliminating    Quantitative: This           Quantitative: Not
 adjudication timeframe for           the provisions for      provision could delay the    estimated.
 applicants who have pending asylum   the 30-day              ability of some initial
 applications.                        adjudication            applicants to work. A
                                      timeframe and           portion of the impacts of
                                      issuance of initial     the rule would be the lost
                                      EADs for pending        compensation transferred
                                      asylum applicants.      from asylum applicants to
                                                              others currently in the
                                                              workforce, possibly in the
                                                              form of additional 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
                                                              2020-2029 averages $4.396
                                                              billion and $3.619 billion
                                                              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 annually.
                                                             Qualitative: In cases where  Qualitative: DHS will
                                                              companies cannot find        be able to operate
                                                              reasonable substitutes for   under long-term
                                                              the labor the asylum         sustainable case
                                                              applicants would have        processing times for
                                                              provided, affected           initial EAD
                                                              companies would also lose    applications for
                                                              profits from the lost        pending asylum
                                                              productivity. In all         applicants, to allow
                                                              cases, companies would       sufficient time to
                                                              incur opportunity costs by   address national
                                                              having to choose the next    security and fraud
                                                              best alternative to          concerns, and to
                                                              immediately filling the      maintain
                                                              job the pending asylum       technological
                                                              applicant would have         advances in document
                                                              filled. There may be         production and
                                                              additional opportunity       identity verification
                                                              costs to employers such as   without having to add
                                                              search costs. There may      any resources.
                                                              also be additional
                                                              distributional impacts for
                                                              those in an applicant's
                                                              support network beyond a
                                                              minimum of 180 days--if
                                                              applicants are unable to
                                                              work legally, they may
                                                              need to rely on resources
                                                              from family members,
                                                              friends, non-profits, or
                                                              government entities for
                                                              support.
                                                             DHS notes that the           This rule is expected
                                                              estimates from the NPRM      to result in reduced
                                                              regarding unemployment,      opportunity costs to
                                                              number of asylum             the Federal
                                                              applicants per year, and     Government. By
                                                              USCIS processing are not     removing the 30-day
                                                              currently applicable as      timeframe, USCIS will
                                                              COVID-19 has had a           be able to reallocate
                                                              dramatic impact on all       the resources it
                                                              three. DHS offers this       redistributed to
                                                              analysis as a glimpse of     comply with the 30-
                                                              the potential impacts of     day provision,
                                                              the rule, but the analysis   potentially reducing
                                                              relies on assumptions        delays in processing
                                                              related to a pre-COVID       of other applications
                                                              economy. While future        and avoiding costs
                                                              economic conditions are      associated with
                                                              currently too difficult to   hiring additional
                                                              predict with any             employees.
                                                              certainty, DHS notes that
                                                              a higher unemployment rate
                                                              may result in lower costs
                                                              of this rule as replacing
                                                              pending asylum applicant
                                                              workers would most likely
                                                              be easier to do.
                                                              Consequently, as
                                                              unemployment is high, this
                                                              rule is less likely to
                                                              result in a loss of
                                                              productivity on behalf of
                                                              companies unable to
                                                              replace forgone labor.
Applicants can currently submit      This rule removes the   Quantitative: None.........  Quantitative: None.
                                      90-day
 a renewal EAD application 90 days    submission             Qualitative: None..........  Qualitative:
 before the expiration of their       requirement for                                      Applicants--
 current EAD.                         renewal EAD                                          Reduces
                                      applications.                                        confusion regarding
                                                                                           EAD renewal
                                                                                           requirements. Some
                                                                                           confusion may
                                                                                           nonetheless remain if
                                                                                           applicants consult
                                                                                           outdated versions of
                                                                                           regulations or
                                                                                           inapplicable DOJ
                                                                                           regulations.

[[Page 37506]]

 
                                                                                          DHS/USCIS--
                                                                                           The DHS
                                                                                           regulations are being
                                                                                           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 all of the positions the asylum 
applicants would have filled, they will bear little or no costs, so the 
maximum of $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 any reasonable labor 
substitutes for the positions the asylum applicants 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 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 for each
                                                                             Low wage        High wage       Low wage        High wage         row)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost......................................  Lost compensation used as            $255.88         $774.76           $0.00           $0.00         $387.38
                                             proxy for lost productivity
                                             to companies.
Transfer..................................  Compensation transferred                0.00            0.00          255.88          774.76          387.38
                                             from asylum applicants to
                                             other workers.
Transfer..................................  Lost employment taxes paid             39.15          118.54            0.00            0.00           59.27
                                             to the 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 final 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 un-monetized 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: 2020-2029]
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                  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,                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:

[[Page 37507]]

 
    Annualized monetized costs (discount                (7%)         $387.38              $0         $774.76  RIA.
     rate in 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 additional search costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transfers:
    Annualized monetized transfers: ``on                (7%)              $0              $0              $0  RIA.
     budget''.
                                                        (3%)              $0              $0              $0
                                             ----------------------------------------------------------------
    From whom to whom?......................                                N/A                               N/A.
                                             ----------------------------------------------------------------
    Annualized monetized transfers:                     (7%)         $387.38              $0         $774.76  RIA.
     Compensation.                                      (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: Taxes...            (7%)          $59.27              $0         $118.54  RIA.
                                                        (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
--------------------------------------------------------------------------------------------------------------------------------------------------------
                  Category                                                Effects                                           Source citation
                                                                                                              (RIA, preamble, etc.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Effects on state, local, and/or tribal        None; no significant impacts to national labor force or to the  RIA.
 governments.                                 labor force of 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.
--------------------------------------------------------------------------------------------------------------------------------------------------------

E. Effective Date

    This final rule will be effective on August 21, 2020, 60 days from 
the date of publication in the Federal Register. DHS has determined 
that this 60-day period is reasonable as it does not impose new filing 
burdens on asylum seekers requesting initial employment authorization 
and simplifies the requirements for asylum seekers requesting to renew 
employment authorization.

F. Implementation

    The changes in this rule will apply to adjudication of initial 
applications for work authorization filed on or after the effective 
date of the rule by those with pending asylum applications and renewal 
applicants filing on or after the effective date. As noted in the 
preamble to the proposed rule, Rosario class members who have filed 
their initial EAD applications prior to the effective date of the rule 
will be grandfathered into the 30-day adjudication timeframe. See 84 FR 
at 47153. DHS has determined that this manner of implementation best 
balances operational considerations with fairness to class members.

II. Background and Discussion

A. Elimination of 30-Day Processing Timeframe

Processing of Applications for Employment Authorization Documents 
(EADs)
    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, Application for Employment Authorization. Under 8 CFR 
208.7(a)(1) prior to this final rule, USCIS' adjudicatory timeframe for 
initial employment authorization requests under the (c)(8) category was 
30 days. The 30-day timeframe in 8 CFR 208.7(a)(1) was established more 
than 20 years ago,\13\ when the former Immigration and Naturalization 
Service (INS) adjudicated EAD applications at local INS offices. The 
adjudication process and vetting requirements have changed 
substantially since that time. EAD applications are now adjudicated at 
USCIS service centers. As discussed in the proposed rule and in 
response to comments below, DHS believes that the 30-day timeframe is 
outdated, does not account for the current volume of applications, and 
no longer reflects

[[Page 37508]]

current operational realities.\14\ Specifically, in the time since the 
previous rule was enacted, asylum applications filed with USCIS have 
reached historic levels, peaking most recently at 142,760 in FY 2017. 
This increase in application receipts, along with the significant and 
longstanding backlog at USCIS of affirmative asylum applications 
(``asylum backlog'' or ``affirmative asylum backlog''), has contributed 
to an increase in receipts of initial EAD applications for pending 
asylum applicants that has surpassed available USCIS resources. By 
eliminating the 30-day provision, DHS seeks to maintain realistic case 
processing times for initial EAD applications filed by pending asylum 
applicants, 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. This rulemaking does not change any requirements or 
eligibility for applying for or being granted asylum or employment 
authorization. Rather, it reflects the operational changes necessary 
due to increased employment authorization application volumes based on 
an underlying application for asylum.
---------------------------------------------------------------------------

    \13\ 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).
    \14\ DHS continues to recognize the regulatory history for 
originally promulgating this provision, and discusses this 
extensively in the comment responses.
---------------------------------------------------------------------------

Growth of Receipts and Backlog
    The growth of asylum application receipts by USCIS, along with the 
growing asylum backlog, has contributed to an increase in EAD 
applications from pending asylum applicants that has surpassed 
available Service Center Operations resources. As of February 2020, the 
affirmative asylum caseload stood at approximately 339,000 applications 
\15\ and it had been growing for several years. 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. Affirmative asylum applications increased to over 100,000 in FY 
2016 for the first time in 20 years.\16\ The USCIS Asylum Division 
received 44,453 affirmative asylum applications in FY 2013, 56,912 in 
FY 2014, 84,236 in FY 2015, 115,888 in FY 2016, 142,760 in FY 2017, 
106,041 in FY 2018, and 96,861 in FY 2019.\17\ While receipts have 
dipped slightly in the last two fiscal years, prior to that there was a 
221.15 percent increase in annual affirmative asylum receipts over the 
span of 5 years that directly contributed to the increase in (c)(8) EAD 
receipts. USCIS received 41,021 initial EAD applications from aliens 
with pending asylum applications in FY 2013, 62,169 in FY 2014, 106,030 
in FY 2015, 169,970 in FY 2016, 261,782 in FY 2017, 262,965 in FY 2018, 
and 216,038 in FY 2019. USCIS also received 37,861 renewal EAD 
applications from aliens with pending asylum applications in FY 2013, 
47,103 in FY 2014, 72,559 in FY 2015, 128,610 in FY 2016, 212,255 in FY 
2017, 62,026 in FY 2018 and 335,188 in FY 2019. In FY 2019, USCIS 
received a total of 556,996 applications (which include initial and 
renewals of 551,226 plus 5,770 replacements, the latter of which are 
immaterial to this rule) for Form I-765 from pending asylum applicants, 
with less than half as initial applications (216,038 or 38.8 percent). 
There were 335,188 renewal applications (60.2 percent) in FY 2019.
---------------------------------------------------------------------------

    \15\ 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. An affirmative asylum application is one that is filed 
with USCIS and not in removal proceedings before the Executive 
Office for Immigration Review (EOIR).
    \16\ The USCIS Refugee, Asylum, and International Operations 
Parole System provided this data on March 15, 2018.
    \17\ These numbers only address the affirmative asylum 
applications that fall under the jurisdiction of USCIS' Asylum 
Division. Defensive asylum applicants, who file their asylum 
applications 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.
---------------------------------------------------------------------------

    The increase in both initial and renewal EAD applications coupled 
with the growth in the number of asylum cases filed in recent years has 
grossly outpaced Service Center Operations resources, specifically 
because USCIS has had to reallocate resources from other product lines 
to adjudicate these EAD applications.\18\
---------------------------------------------------------------------------

    \18\ In response to the growing backlog and court-ordered 
implementation of the 30-day adjudication timeline in Rosario v. 
USCIS, Rosario v. USCIS, 365 F. Supp. 3d 1156 (W.D. Wash. 2018), 
Service Center Operations re-allocated available officer resources 
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 and by 2006, DHS fully 
implemented these centralization efforts.\19\
---------------------------------------------------------------------------

    \19\ 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,\20\ which is a Post Office 
box used to accelerate the processing of applications by electronically 
capturing data and receiving and depositing fees.\21\ 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.
---------------------------------------------------------------------------

    \20\ Asylum applicants, however, make their initial 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.
    \21\ USCIS website at https://www.uscis.gov/about-us/directorates-and-program-offices/lockbox-intake/lockbox-intake-processing-tip-sheet (last viewed March 2, 2020).
---------------------------------------------------------------------------

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

[[Page 37509]]

background checks, which resulted from the government's response to 
September 11, 2001, terror attacks (``9/11''). Specifically, the 
Immigration and Naturalization Service (INS), followed by 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, interagency systems checks 
for all applications and FBI name check screening, and the creation of 
USCIS's Office of Fraud Detection and National Security (FDNS) to 
provide centralized support and policy guidance for security checks and 
anti-fraud operations.\22\ In August 2004, the Homeland Security 
Presidential Directive (HSPD) 11, Comprehensive Terrorist-Related 
Screening Procedures,\23\ directed DHS to:
---------------------------------------------------------------------------

    \22\ In 2010, FDNS was promoted to a Directorate within USCIS's 
organizational structure, which elevated its profile and brought 
operational improvements to its 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.
    \23\ 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). USCIS must verify the identity of an alien 
applying for an EAD and determine whether any criminal, national 
security, or fraud concerns exist and changes to biographic and 
biometric information improve USCIS's ability to carry out these 
functions. 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.\24\ Once vetting is completed and a finding is 
made, the adjudicator uses the information provided from BCU and/or 
CFDO to determine whether the alien is eligible to receive the 
requested benefit.
---------------------------------------------------------------------------

    \24\ USCIS conducts background checks on aliens applying for an 
immigration benefit because United States immigration laws and 
regulations preclude USCIS from granting immigration benefits to 
aliens 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 applications with potential eligibility issues 
discovered during background checks beyond the current regulatory 30-
day timeframe. It would be contrary to USCIS' core missions and 
undermine the integrity of the cards issued if USCIS were to reduce or 
eliminate vetting procedures solely to meet a 30-day deadline 
established decades ago.
    In sum, DHS is finalizing elimination of 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, criminality, and national security concerns. DHS believes that 
the 30-day timeframe did 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.

B. Removal of the 90-Day Filing Requirement

    DHS is removing 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 that provision. Under the 2017 AC21 
Rule, certain aliens eligible for employment authorization under 
designated categories may have the validity of their employment 
authorization (if applicable) and 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 employment 
authorization and EADs falling within the designated categories as long 
as: (1) The alien filed the request to renew his or her EAD before its 
expiration date; (2) the alien is requesting renewal based on the same 
employment authorization category under which the expiring EAD was 
granted; and (3) the alien'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 this rule, and as currently 
reflected on the USCIS website, the automatic extension amendment 
applies to aliens who have properly filed applications for asylum. See 
id.; 8 CFR 274a.12(c)(8); 81 FR 82398 at 82455-56 n.98.\25\
---------------------------------------------------------------------------

    \25\ See also USCIS, Automatic Employment Authorization Document 
(EAD) Extension, https://www.uscis.gov/working-united-states/automatic-employment-authorization-document-ead-extension (last 
reviewed/updated Feb. 1, 2017).
---------------------------------------------------------------------------

    Because the 2017 AC21 Rule effectively prevents gaps in work 
authorization for asylum applicants with expiring employment 
authorization and EADs,\26\ DHS finds it unnecessary to continue to 
require that pending asylum applicants file for renewal of their 
employment authorization 90 days before the EAD's scheduled expiration 
in order to prevent gaps in employment authorization. In order to 
receive the automatic extension, applications may be filed before the 
employment authorization expires, though it is advisable to submit the 
application earlier to make allowance for the time it takes for 
applicants to receive a receipt acknowledging USCIS' acceptance of the 
renewal application, which can be used as proof of the extension, and 
to account for current Form I-765 processing times. As the 90-day 
filing requirement is no longer necessary, DHS is finalizing removal of 
that regulatory provision.
---------------------------------------------------------------------------

    \26\ As EAD applicants with pending asylum applications are not 
authorized for employment, incident to status, these applicants need 
both their authorization and document to be extended. Thus, wherever 
DHS discusses expiration, renewal, or extension of an employment 
authorization document for this population, it also means 
expiration, renewal, or extension of employment authorization.

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

[[Page 37510]]

C. Corresponding U.S. Department of Justice (DOJ) Regulations

    This rule removes (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). These provisions can still be found in the parallel regulations 
under the authority of the Department of Justice (DOJ), at 8 CFR part 
1208. Compare old 8 CFR 208.7(a)(1) and (d), with 8 CFR 1208.7(a)(1) 
and (d).
    This rule revises 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 this final rule, the revised 
language of 8 CFR 208.7(a)(1) and removal of 8 CFR 208.7(d) is binding 
on DHS and its adjudications. DHS will 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 rulemaking, and DOJ may issue 
conforming changes at a later date.

III. Response to Public Comments on the Proposed Rule

A. General Feedback on the NPRM

    In response to the proposed rule, DHS received over 3,200 comments 
during the public comment period. DHS reviewed the public comments 
received in response to the proposed rule and addresses relevant 
comments in the preamble to this final rule, grouped by subject area. 
DHS does not address comments seeking changes in U.S. laws, 
regulations, or agency policies that are unrelated to the changes 
proposed in the NPRM. This final rule does not resolve issues outside 
the scope of this rulemaking.
1. General Support for the NPRM
    Comments: Many commenters provided general expressions of support 
for President Trump's overall immigration policies and reforms.
    Response: DHS appreciates the expression of support for the 
Executive Branch in the realm of immigration policy; however, we note 
that the reason for promulgating this rule is to address capacity, 
resources, and efficiencies across USCIS operations. The legacy 
regulation fails to account for processing changes and increased filing 
volumes and does not provide the agency the flexibility it needs to 
effectively manage this workload while continuing to provide timely and 
accurate decisions across the many other types of benefit requests it 
receives.
    Comments: Many commenters expressed support for the rule to assist 
the agency's thorough vetting processes and protections against fraud 
and national security concerns. Some commenters expressed concern that 
the 30-day timeframe would force the agency to ``cut corners'' in 
vetting processes.
    Response: DHS appreciates commenters' general support for this 
rulemaking. In all adjudications, USCIS works to provide thorough 
vetting to advance U.S. interests, including detecting and deterring 
immigration fraud, and protecting against threats to national security 
and public safety, while at the same time fairly administering lawful 
immigration. The existing timeframe and court order have not resulted 
in the agency cutting corners in conducting background checks; however, 
it has placed a serious strain on the agency's resources to conduct 
these checks within 30 days. Vetting is triggered by individual benefit 
requests; in this case, the EAD application. Filing an application for 
asylum triggers vetting as does applying for employment authorization. 
Review of and resolution of derogatory information relating to an 
applicant is conducted within the office handling that particular 
application. Asylum applications are processed in asylum offices, while 
employment authorization applications are processed in service centers. 
Vetting is conducted throughout the adjudication process, however 
vetting often is occurring in relation to the particular application 
rather than in relation to the alien on an enterprise level.
    Comments: Several commenters supported removing ``bureaucratic'' 
timelines. Commenters expressed that such timelines are arbitrary and 
are detrimental to proper vetting of applicants.
    Response: USCIS agrees with commenters that a self-imposed 30-day 
timeframe is no longer an accurate reflection of the agency's ability 
to adjudicate these applications in a sustainable manner. This 
rulemaking will allow USCIS greater flexibility to shift workloads 
based on service center capacity and to continue to conduct necessary 
vetting, while providing accurate and timely adjudications without a 
disproportionate impact to the adjudication of other benefit requests.
2. General Opposition to the NPRM
    Comments: A number of commenters noted that the proposed rule 
contradicts DHS's focus on requiring aliens to be self-sufficient. In 
particular, several commenters indicated that this regulation is in 
tension with the ``Inadmissibility on Public Change Grounds'' final 
rule, which was promulgated in August 2019. See 84 FR 41292 (Aug. 14, 
2019). Commenters expressed concern that the potential for a longer 
wait to receive employment authorization would prevent asylum seekers 
from becoming self-sufficient as quickly as possible and could cause 
them to become a public charge. A commenter also cited 8 U.S.C. 1601, 
providing a Congressional statement that ``[s]elf-sufficiency has been 
a basic principle of United States immigration law since this country's 
earliest immigration statutes.''
    Response: USCIS disagrees with the premise of these comments. 
Asylum seekers are not subject to public charge in the adjudication of 
their asylum applications. Likewise, the public charge ground of 
inadmissibility is not applicable to asylees seeking adjustment of 
status to lawful permanent residence. Since this population is not 
subject to inadmissibility based on being likely to become a public 
charge, USCIS does not find this rule in tension with rulemaking 
related to this ground of inadmissibility. Additionally, the purpose of 
this rulemaking is to address the unsustainable burden due to rising 
number of EAD applications and the resources required to maintain 30-
day processing times. USCIS data supports the operational need for this 
rulemaking based on the significant increase in EAD applications in 
recent years as well as increased requirements for security checks and 
vetting, which lengthen the time it takes to process each case. 
Increasing resources for this adjudication indefinitely to meet an 
outdated regulatory timeframe would come at significant cost, 
potentially in fees and efficiencies for other benefit requestors.\27\ 
Additionally, this rulemaking brings the regulations relating to (c)(8) 
processing in line with other EAD classifications, for which

[[Page 37511]]

processing timelines were previously removed.
---------------------------------------------------------------------------

    \27\ On November 14, 2019, DHS proposed to set a $490 fee for 
initial employment authorization applications for those with pending 
asylum applications. See U.S. Citizenship and Immigration Services 
Fee Schedule and Changes to Certain Other Immigration Benefit 
Request Requirements, 84 FR 62280 (Nov. 14, 2019). Although the fee 
rule has yet to be finalized, DHS stated that it was proposing to 
charge the fee to keep fees lower for all fee-paying EAD applicants. 
As discussed in the NPRM preceding this final rule, the agency is 
uncertain whether the fee would reduce the overall resource burden 
associated with the 30-day timeframe.
---------------------------------------------------------------------------

    Comments: Many commenters also indicated concern that this 
rulemaking would have a negative impact on applicants' wellbeing in 
that delays in EAD application processing would lead to or exacerbate 
issues like homelessness, food insecurity, mental health problems, and 
lack of access to healthcare.
    Response: USCIS strives to process all benefits requests 
efficiently and this rulemaking does not make changes to eligibility 
requirements or the process by which asylum seekers obtain employment 
authorization. Regardless of the underlying basis for applying for 
employment authorization, all applicants filing initially are subject 
to some period of processing time that may delay their ability to 
obtain employment or other services.
    Comments: Several commenters opposed the rule on the basis that 
EADs are essential to the economic survival of vulnerable asylum 
seekers.
    Response: This rulemaking does not prevent eligible asylum seekers 
from obtaining EADs, nor does it make substantive changes to 
eligibility or adjudication requirements. It merely removes a self-
imposed timeframe for USCIS to adjudicate such applications because 
that constraint is no longer operationally feasible. USCIS publicly 
posts processing time information, so that asylum seekers have 
information on how long the adjudicative process is taking and can plan 
accordingly. USCIS acknowledges that this rule may cause some 
processing delays that may increase the period during which asylum 
seekers rely on individuals or organizations for support. This 
rulemaking does not aim to create undue hardships, or to cause 
unnecessary delays in processing applications. Regardless of the 
underlying basis for applying for employment authorization, all 
applicants filing initially are subject to some period of processing 
time that may delay their ability to obtain lawful employment or other 
services. USCIS believes that its operational needs outweigh concerns 
over potential minor increases in processing times.
    Comments: Some commenters expressed concern that delays in work 
authorization would prevent asylum seekers from obtaining valid state 
IDs.
    Response: Individual state governments determine the documentary 
requirements for state-issued identifications and therefore these 
requirements are outside USCIS' purview.
    Comments: Several commenters indicated they think asylum seekers 
should be able to work as soon as possible.
    Response: While USCIS acknowledges these commenters' opinions, the 
earliest date legally possible is at the 180-day mark, as Congress 
explicitly determined that asylum applicants who are not otherwise 
eligible for employment authorization ``shall not be granted such 
authorization prior to 180 days after the date of filing of the 
application for asylum.'' INA section 208(d)(2); 8 U.S.C. 1158(d)(2). 
However, the operational realities are not that simple. USCIS is 
charged with dutifully administering lawful immigration benefits and 
the INA specifically charges the agency with the authority to implement 
the law, including the discretion to grant work authorization to those 
who have applied for asylum. USCIS endeavors to process benefit 
requests as quickly and efficiently as resources allow and will 
continue to do so for applicants seeking an EAD based on a pending 
application for asylum. This rulemaking simply removes an agency's 
antiquated and self-imposed constraint to account for increased 
operational and filing volume changes that have occurred over two 
decades since the promulgation of the previous rule.
    Comments: Commenters stated they believe this rulemaking to be 
antithetical to American values. For example, one commenter stated, ``. 
. . [the United States is] considered the `land of opportunity' but yet 
we refuse to give people running for fear of persecution the 
opportunity to try to assimilate to our culture.'' Another stated, ``. 
. . [l]et us not forget that we are a nation built on values that those 
who need help can always look to this great nation for support and 
refuge.''
    Response: USCIS disagrees with the commenters' premise. This rule 
focuses on USCIS' operational capacity and the resources required to 
maintain the 30-day processing timeline as receipts and vetting 
requirements have increased drive this rulemaking. Continuously 
increasing resources allocated to a particular adjudication type 
negatively impacts production for other benefit request types. This 
rule does not reduce or eliminate the opportunity for an asylum seeker 
who has yet to establish eligibility for asylum on the merits to apply 
for or receive an EAD.
    Comments: A couple of commenters indicated they thought this 
rulemaking was discriminatory to communities of color, including 
Hispanic individuals. Another commenter stated the proposed rule would 
continue what that commenter claimed was a history of illegally 
discriminating against Central and South American migrants.
    Response: This rulemaking applies equally to all asylum seekers, 
and does not discriminate against aliens based on ethnicity or country 
of origin. The demographics of asylum seekers, a population that has 
yet to establish eligibility for asylum, shift over time based on 
country conditions around the globe. This rulemaking addresses USCIS' 
available resources and capacity to process applications for asylum 
seekers of all ethnicities and nationalities and the processing changes 
provided by this rulemaking will continue to be applied equitably.
    Comments: One commenter indicated that they thought the proposed 
rule is part of a structure intended to ignore migrants and trap them 
in an illegal status.
    Response: Aliens seeking asylum must be physically present in the 
United States pursuant to INA section 208(a)(1), but may or may not 
have entered lawfully or be maintaining lawful status. Further, an EAD 
does not change an alien's underlying status or likelihood of being 
eligible for asylee status, but simply provides evidence that an alien 
is temporarily authorized to work in the United States, in this 
instance based on a pending application for asylum.
    Comments: Some commenters suggested that the 30-day deadline is 
needed to ensure government accountability.
    Response: USCIS acknowledges the importance of accountability and 
continuously seeks to improve and streamline work processes to improve 
efficiency and provide accurate and timely adjudicative decisions. As 
with any adjudication, USCIS posts processing times for these 
applications so that applicants can understand what to expect.\28\ 
Applicants have avenues to address excessive delays through case status 
inquiries, expedite requests when circumstances warrant, and even 
judicial redress through filing a mandamus action to compel a decision. 
Removing the 30-day timeframe does not absolve USCIS of its 
responsibility to adjudicate applications as quickly and efficiently as 
possible but does reconcile changes in processing requirements for 
vetting as well as increasing application volume.
---------------------------------------------------------------------------

    \28\ See USCIS, Check Case Processing Times, https://egov.uscis.gov/processing-times/ (last view February 26, 2020). 
Select the form type and the service center processing the 
applicable case.
---------------------------------------------------------------------------

    Comments: Some commenters asserted that USCIS is capable of 
maintaining the 30-day adjudication

[[Page 37512]]

timeline, as it has been doing so for years.
    Response: USCIS has achieved compliance with the Rosario v. USCIS 
court order, 365 F. Supp. 3d 1156 (W.D. Wash. 2018), as 96.9 percent of 
asylum-related EADs were processed within 30 days for FY2019. USCIS has 
had to devote significant additional resources to achieving these 
rates, which in turn adversely impacts other lines of adjudications. 
The resources needed to sustain this rate as application volumes and 
vetting requirements either increase or fail to abate from historically 
high levels will continue to force the agency to divert resources from 
other priorities at greater levels. This is not sustainable and unfair 
to other benefit requestors who also rely on timely adjudications from 
USCIS for other immigration status-granting benefit requests.

B. DHS Statutory Authority and Legal Issues

    Some commenters provided input on DHS's statutory and legal 
authorities to promulgate this regulation.
1. DHS Statutory Authority
    Comments: A commenter said the proposed rule contravenes Congress' 
intention to protect migrants with well-founded fears of persecution. 
Similarly, others commented that the proposed rule contravenes 
Congressional intent to promote effective settlement and conform with 
international law, as evidenced in the Refugee Act of 1980's 
legislative history and its language similar to that of the UN Protocol 
on the Status of Refugees of 1967. Another commenter agreed, stating 
that the 1967 Protocol and U.S. law were in response to World War II 
and the Holocaust.
    Response: This rulemaking does not impede an alien's opportunity to 
seek asylum in the United States and does not contravene Congressional 
intent or explicit Congressional directives. Providing an asylum seeker 
with the opportunity to apply for temporary employment authorization 
while an application for asylum is pending is a discretionary benefit, 
as provided by Congress. See INA section 208(d)(2) (``An applicant for 
asylum is not entitled to employment authorization, but such 
authorization may be provided under regulation by the [Secretary of 
Homeland Security]''). USCIS strives to provide timely and efficient 
adjudications for all benefit requests, including asylum and related 
benefits, but the significant increases in applications for asylum are 
overtaxing our resources to process ancillary benefits within the 30-
day regulatory timeframe.
    Comments: Commenters stated that Congress intended for asylum 
applicants to have work authorization as soon as possible after the 
180-day waiting period, as evidenced by the inclusion of such waiting 
period in the Immigration and Nationality Act (INA). Others likewise 
commented that INA's express waiting period cannot be extended by DHS, 
citing INA section 208(d)(5)(A)(iii), which provides that in the 
absence of exceptional circumstances, final administrative adjudication 
of the asylum application, not including administrative appeal, shall 
be completed within 180 days after the date such application is filed. 
The commenters stated that the 180-day statutory waiting period for 
employment authorization, taken together with the 180-day statutory 
timeframe for asylum adjudications, make clear that Congress intended 
asylum seekers to obtain work authorization as expeditiously as 
possible; either before 180 days if USCIS adjudicated the asylum 
application in that timeframe, or as soon as possible after 180 days if 
the asylum application was still pending at that time.
    Another commenter stated, ``[t]he Proposed Rule sharply contradicts 
a basic principle of United States immigration law since our nation's 
earliest immigration statutes were passed: Self-sufficiency,'' citing 
to 8 U.S.C. 1601 to justify the requirement for expeditious processing 
of asylum seekers' EAD applications.
    Response: USCIS respectfully disagrees with the commenters' 
statutory interpretation. INA section 208(d)(2) states, in pertinent 
part: ``An applicant for asylum is not entitled [emphasis added] to 
employment authorization, but such authorization may be provided under 
regulation by the [Secretary]. An applicant who is not otherwise 
eligible for employment authorization shall not be granted such 
authorization prior to 180 days [emphasis added] after the date of 
filing the application for asylum.'' The statutory language plainly 
creates a minimum requirement for the time an asylum application can be 
pending before the discretionary authority to grant employment 
authorization is permitted, but does not prohibit a longer wait time, 
whether by regulation, policy, or the time it takes to adjudicate such 
an application after a minimum of 180 days has passed. The separate 
provision articulating a 180-day asylum adjudication timeframe does not 
change this conclusion. Had Congress wished to require the Secretary to 
authorize employment for applicants after 180 days had elapsed since 
the asylum application was filed, it could have indicated that 
intention. Cf., e.g., National Defense Authorization Act for Fiscal 
Year 2020, Public Law 116-92, sec. 7611(d)(3)(B) (``Liberian Refugee 
Immigration Fairness'') (``If an application for adjustment of status 
under subsection (b) is pending for a period exceeding 180 days and has 
not been denied, the Secretary shall authorize employment for the 
applicable alien.''). But Congress did not even require DHS to offer 
employment authorization at all, let alone articulate an adjudication 
timeframe.
    8 U.S.C. 1601 provides a Congressional statement that ``Self-
sufficiency has been a basic principle of United States immigration law 
since this country's earliest immigration statute.'' While USCIS agrees 
that self-sufficiency is an important aim of immigration law and 
policy, USCIS must consider its workloads and the operational impacts 
of outdated regulatory timelines for adjudicating EADs for aliens who 
have not yet established eligibility for asylum.
    Comments: A commenter stated that the INA authorized DHS to 
promulgate the proposed rule. The commenter further stated that there 
is no fundamental right to seek safety and protection in the United 
States.
    Response: USCIS concurs that it has the authority granted by the 
statute to promulgate this rulemaking. This rulemaking does not, 
however, impact an alien's right to seek safety and protection in the 
United States, nor does it impose changes to the process or eligibility 
requirements associated with seeking asylum.
    Comments: Some commenters disagreed with eliminating the 30-day 
processing timeframe, stating that it is arbitrary and capricious. 
Commenters stated that there was no rational connection between the 
proposal and the facts relied upon, that the agency relied on 
inappropriate factors, and failed to consider alternatives. 
Specifically, they stated that the agency did not disclose the 2018-
2019 processing times, can adequately vet applicants during the 30 
days, failed to consider the impact to applicants not receiving an EAD, 
and inappropriately considered reduced litigation as a factor.
    Commenters also stated that DHS did not adequately consider 
alternatives. Specifically, commenters stated that DHS did not explain 
why it cannot hire additional staff, why it is abandoning the timeframe 
altogether rather than extending it (challenging DHS's comparison to 
Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program 
Improvements Affecting High-Skilled Nonimmigrant Workers, 81 FR

[[Page 37513]]

82398 (Nov. 18, 2016) (``AC21'')), and asserted that DHS ignored that 
before Rosario v. USCIS, 92% of applicants were adjudicated within 90 
days.
    Response: DHS respectfully disagrees with commenters that it has 
not demonstrated a rational connection between its proposal and the 
facts before the agency. DHS has updated the rule with more data for FY 
2018-2019. In the proposed rule, DHS provided data regarding FY 2017 
processing times, described current processing times, explained its 
vetting procedures and how they have changed since September 11, 2001, 
and showed that most applications that required additional vetting took 
more than 30 days to adjudicate. DHS also explained that other 
adjudications have been delayed as a consequence of diverting 
significant resources from other benefit request types in order to 
adjudicate (c)(8) applications within the 30-day timeframe.
    DHS considered alternatives, such as hiring additional staff or 
extending the timeframe to 90 days. DHS acknowledged that it is working 
to comply with the court order's processing times, but that such an 
approach is unsustainable due to the extreme resource strain. Even if 
DHS were able to hire staff to attempt to mitigate an increased 
timeframe from an operational perspective, DHS would still need to 
recruit, vet, onboard, and train new adjudicators, and likely extend 
the timeframe. Further, extending the regulatory timeframe to 60 or 90 
days would not necessarily result in a timeframe that is feasible in 
all cases. DHS explicitly stated that before Rosario, it was 
adjudicating 92 percent of applications within 90 days, and thus 
disagrees with the commenter that DHS ignored that fact. DHS has seen a 
drastic increase in asylum applications in recent years, and this 
increase was not anticipated, and therefore could not have been 
considered when the former INS promulgated the 30-day timeframe more 
than 20 years ago. To promulgate another timeframe could lead to 
similar results and delays should volumes increase further in the 
future.
    DHS recognizes that AC21 related to employment-based applications 
that do not necessarily involve the same humanitarian considerations. 
However, DHS also notes that though AC21 was primarily focused on 
employment-based immigration, it did provide for automatic extension of 
EADs for those who have properly filed asylum applications. See 8 CFR 
274a.13(d)(1). The purpose of the discussion referenced by the 
commenter is to make clear why DHS rejected the option of changing the 
30-day asylum applicant EAD processing timeframe to 90 days. As DHS 
wrote in the proposed rule, 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 recognizes potential impacts to applicants of not receiving an 
EAD at the earliest possible juncture, however, this rule does not 
prohibit or otherwise limit an asylum applicant's eligibility for an 
EAD or to apply for or receive asylum. USCIS expects that this rule 
will generally align adjudications with USCIS processing times achieved 
in FY 2017. A potentially small (such as a 30- to 60-day) delay in 
adjudication time, as compared to current processing times, would allow 
the agency the flexibility in resources to fully vet applicants through 
a sustainable approach for years to come.
    Lastly, DHS did not wrongfully consider reduced litigation as a 
factor, as it was important and transparent to note to the public that 
it anticipated an end to litigation over the 30-day adjudication 
timeframe, but that applicants could in some cases still challenge the 
agency on ``unreasonable delay'' theories.
    Comments: Commenters stated that the proposed rule was an 
unsupported significant departure from past policy and that it must 
analyze reliance interests, citing FCC v. Fox Television Stations, 556 
U.S. 502 (2009). Commenters also stated that the agency's prior 
rulemakings on the issue enacted the 30-day timeframe for humanitarian 
reasons to mitigate hardships on asylum applicants, ``to ensure that 
bona fide asylees are eligible to obtain employment authorization as 
quickly as possible (citing to Inspection and Expedited Removal of 
Aliens; Detention and Removal of Aliens; Conduct of Removal 
Proceedings; Asylum Procedures, 62 FR 10312, 10317-18 (Mar. 6, 1997)). 
Commenters stated that this rulemaking does not acknowledge 
humanitarian factors.
    Response: For reasons discussed elsewhere in this final rule, as 
well as provided in the proposed rule, this rulemaking fully 
acknowledges the agency's past practice, and provided justifications 
and data to support its change. USCIS predicts, and expects, that with 
finalizing this rule, adjudications will generally align with DHS 
processing times achieved in FY 2017 (before the Rosario v. USCIS court 
order, 365 F. Supp. 3d 1156 (W.D. Wash. 2018)). To the extent that 
legitimate reliance interests may exist in this context, DHS adequately 
addressed such interests in DHS's proposal to grandfather into the 30-
day adjudication timeframe all Rosario class members who filed their 
EAD applications prior to the effective date of the final rule.
    DHS explicitly recognized its past regulatory history on this issue 
and humanitarian concerns in the proposed rule. DHS has tried to find 
ways to reduce adjudication times for this population, such as 
returning to the processing of affirmative asylum applications on a 
``last in, first out'' (LIFO) basis. DHS has further considered 
humanitarian factors submitted by commenters, but as noted in the 
proposed rule, the existing 30-day timeframe has become untenable. DHS 
proposed and is finalizing a solution in this rulemaking that is 
intended to balance the agency's core missions with providing an avenue 
for asylum applicants to obtain employment authorization. DHS is 
committed to adjudicating these applications as quickly as possible in 
a transparent and sustainable manner.
2. Rosario v. USCIS Court Order
    Some commenters provided input on the court order in Rosario v. 
USCIS, 365 F. Supp. 3d 1156 (W.D. Wash. 2018).
    Comments: A commenter stated that the rule appears to be an attempt 
to reverse Rosario v. USCIS, asserting that it is very doubtful that 
courts will favorably review an attempt to reverse the previous ruling 
through a regulatory process. Similarly, another commenter said the 
proposed rule is an attempt to avoid the Rosario litigation and its 
compliance plan, analogizing the latter to a contract.
    Response: The decision in Rosario v. USCIS was predicated on the 
existing regulatory scheme in which USCIS created a 30-day processing 
timeframe. Specifically, the Rosario court order found that USCIS 
violated the existing 30-day regulatory timeframe and enjoined USCIS 
``from further failing to adhere to the 30-day deadline for 
adjudicating EAD applications, as set forth in 8 CFR 208.7(a)(1).'' The 
court order is contingent upon USCIS' existing antiquated rule. As the 
30-day timeframe was established by agency rulemaking, it can likewise 
be changed by agency rulemaking when the agency acknowledges its prior 
policy, provides reasons for the change, and promulgates a new rule. As 
noted in this rulemaking

[[Page 37514]]

and supported with available data, USCIS has determined that changing 
conditions, including increased vetting requirements and rising 
application volumes, render the former regulatory scheme nonviable.
    With respect to the claim that this rulemaking attempts to avoid 
the Rosario litigation and its compliance plan, USCIS respectfully 
disagrees with this characterization of the purpose and nature of this 
rulemaking. However, USCIS is in compliance with the court order in 
Rosario.
    Comments: Several commenters stated that the Rosario decision 
recognized that the balance of equities supported expedient 
adjudication of initial EAD applications so that asylum seekers may 
obtain employment authorization when waiting--often for years--to have 
their asylum applications resolved. Commenters cited the 1994 proposed 
rule, in which INS concluded that it was appropriate to adjudicate 
applications for employment authorization within 30 days of receipt, 
regardless of the merits of the underlying asylum claim.\29\
---------------------------------------------------------------------------

    \29\ See 59 FR 14779, 14780 (Mar. 30, 1994).
---------------------------------------------------------------------------

    Response: The rule does not change the basis upon which USCIS may 
grant employment authorization to an asylum seeker pursuant to INA 
section 208(d)(2). It removes an outdated timeframe for the reasons 
stated above. In the vast majority of cases, this will not result in 
additional years of delays in employment authorization. The merits of 
the underlying asylum application are a separate adjudication and until 
a decision is reached on that application, the asylum seeker may be 
granted an EAD on the basis of the pending application.
    Comments: An organization commented that the Rosario court and U.S. 
Supreme Court precedent in Pereira v. Sessions, 138 S. Ct. 2105 (2018), 
determined that ``resource constraints'' and vague ``practical 
concerns'' do not justify departing from statutory obligations to 
protect human welfare. Another commenter stated that the proposed rule 
fails to acknowledge this humanitarian factor in its analysis, and an 
individual commenter said the proposal cites ``vague'' security 
concerns, stating that the federal court in Rosario found such concerns 
to be sufficiently low that it ordered USCIS to comply with the 30-day 
processing deadline.
    Response: USCIS seeks to clarify that the Rosario court considered 
Pereira v. Sessions in a footnote, finding that ``meritless 
considerations do not justify departing from the law's clear text.'' 
Rosario v. USCIS, 365 F. Supp. 3d 1156, 1163 n.6 (W.D. Wash. 2018). The 
Court considered the human welfare concerns, not security concerns, as 
part of its analysis of the TRAC v. FCC, 750 F.2d 70 (D.C. Cir. 1984), 
factors. See Rosario, 365 F. Supp. 3d at 1162. With respect to the 
claims regarding statutory obligation, USCIS disagrees with the 
commenter, as it is not departing from any statutory obligation. INA 
section 208(d)(2) explicitly states that an ``applicant for asylum is 
not entitled to employment authorization, but such authorization may be 
provided under regulation by the Attorney General.'' USCIS has not 
departed from the statute's text. The statute also prescribes a minimum 
period the asylum application must be pending prior to eligibility for 
consideration of an application for an EAD. The fact that the statute 
does not mandate employment authorization for this population 
demonstrates that the agency could comply with the statute's 
obligations to protect human welfare by not providing any avenue for 
employment authorization to this population. The agency has not elected 
to take that option, but rather has created a regulatory mechanism to 
provide an opportunity for employment authorization. Within that 
context, resource constraints and operational needs have caused DHS to 
reconsider the self-imposed regulatory timeframe. DHS is simply seeking 
to align the regulation with a feasible operational reality. With 
respect to the fraud and national security concerns discussed in the 
proposed rule and in this final rule, DHS reiterates that enhancing 
security is a core goal of the agency. USCIS faces limitations in 
identifying and tracking fraud, as explained in the GAO report 
discussed elsewhere in this preamble, yet the agency must ensure each 
applicant is properly vetted and provide its adjudicators with the 
requisite time to do so.
3. Other Comments on Statutory Authority or Legal Issues
    Comments: One commenter questioned USCIS' authority to set any 
deadlines concerning U.S. immigration policies.
    Response: As noted in section B of the Executive Summary of this 
preamble, 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 
he deems necessary for carrying out such authority. See also 6 U.S.C. 
271(a)(3)(A), (b). 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.
International Law
    Comments: A commenter stated that the proposed rule is contrary to 
the 1967 Protocol's ``fair and efficient'' asylum standard. The 
commenter provided citations to executive statements and case law in 
arguing that the 1967 Protocol is an authority in U.S. refugee law. 
Another commenter stated that the Universal Declaration of Human Rights 
(UDHR) and the United States' commitment to it in the International 
Convention on Civil and Political Rights, the Refugee Convention and 
Protocol, and the Convention Against Torture create a fundamental right 
to asylum that would be weakened by the proposed rule. Another 
commenter said the rule is a violation of the Universal Declaration of 
Human Rights Article 14, Section 1. Another commenter also cited the 
International Covenant on Economic, Social and Cultural Rights (ICESCR) 
as providing a right to work that the proposed rule would contravene. 
This commenter also cited Article 45 of the Organization of American 
States (OAS), Article XIV of the American Declaration on the Rights and 
Duties of Man, and Article 6 of the Additional Protocol to the American 
Convention on Human Rights in the Area of Economic, Social and Cultural 
Rights. Several commenters opposed the proposed rule, stating it 
contravenes the intent of the UN Refugee Convention and the Refugee Act 
of 1980. Another cited Articles 17 and 18 of the 1951 Refugee 
Convention as binding the United States to grant asylum-seekers the 
right to employment. The commenter provided examples of other nations 
with more generous work authorization laws.
    Response: As a threshold matter, this rule does not abrogate the 
ability of asylum applicants to seek or receive employment 
authorization; rather, it

[[Page 37515]]

simply modifies the timeframes under which applications for such 
authorization may be adjudicated.
    Although the United States is a party to the 1967 Protocol, which 
incorporates Articles 2 to 34 of the 1951 Refugee Convention, the 
Protocol is not self-executing. See, e.g., INS v. Stevic, 467 U.S. 407, 
428 n.22 (1984); Khan v. Holder, 584 F.3d 773, 783 (9th Cir. 2009). The 
United States has implemented Article 34 of the 1951 Convention--which 
provides that party states ``shall as far as possible facilitate the 
assimilation and naturalization of refugees''--through the INA's asylum 
provision, section 208. See INS v. Cardoza-Fonseca, 480 U.S. 421, 441 
(1987) (quotation marks omitted). As the Supreme Court has recognized, 
Article 34 is ``precatory'' and ``does not require [an] implementing 
authority actually to grant asylum to all'' persons determined to be 
refugees. Id. Nor is the United States required to provide work 
authorization for asylum applicants, let alone within a particular 
timeframe.
    The INA provides that ``[a]n applicant for asylum is not entitled 
to employment authorization, but such authorization may be provided 
under regulation by the Attorney General.'' 8 U.S.C. 1158(d)(2). The 
implementing regulations establish that, subject to certain 
restrictions, an applicant for asylum shall be eligible to request 
employment authorization. 8 CFR 208.7(a). While the regulations allow 
asylum applicants to request employment authorization, the Act makes it 
clear that there is no entitlement to it. Additionally, the Act itself 
does not impose a temporal limitation on the agency to complete 
adjudications of asylum applicants' application for employment 
authorization. Eliminating the 30-day timeframe for adjudication of an 
asylum applicant's application for employment authorization is 
therefore consistent with the Act, which constitutes the U.S. 
implementation of the treaty obligations. See Weinberger v. Rossi, 456 
U.S. 25, 34 (1982) (noting the general presumption that U.S. law 
conforms to U.S. international treaty obligations).
    To the extent that commenters discussed other international 
treaties or instruments that articulate certain principles relating to 
a right to work, DHS acknowledges those treaties and instruments but 
notes that they are either non-self-executing or non-binding or are 
treaties to which the United States is not a party.\30\ Here, Congress 
has enacted a specific statute authorizing the agency in the realm of 
employment for asylum seekers. This rule is within the Department's 
statutory authority. In any event, the rule does not bar an asylum 
applicant from applying for or receiving work authorization or 
qualifying for asylum; rather, it aligns DHS's processing of such 
applications with agency resources and provides sufficient flexibility 
for DHS to meet its core missions of enforcing and administering our 
immigration laws and enhancing security.
---------------------------------------------------------------------------

    \30\ See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 734-35 
(2004) (observing that the UDHR ``does not of its own force impose 
obligations as a matter of international law''); id. at 735 (``[T]he 
United States ratified the [International] Covenant [on Civil and 
Political Rights] on the express understanding that it was not self-
executing and so did not itself create obligations enforceable in 
the federal courts.'').
---------------------------------------------------------------------------

Other Legal Comments
    Comments: A commenter stated that the proposed rule presents a due 
process issue in discriminating against asylum applicants by denying 
them timely adjudications. Another commenter agreed, stating that 
removing the timeframe would effectively allow the government to deny 
asylum claims by ``doing nothing'', because removing the timeframe 
would deprive applicants of an opportunity to challenge agency delays. 
A commenter stated that, by depriving asylum applicants the opportunity 
to receive timely 30-day notice of whether or not they have received 
employment authorization, this proposed rescinding of the 30-day 
timeline violates applicants' Fifth Amendment rights not to be deprived 
of life, liberty, or property without due process.
    Response: USCIS disagrees with these comments that the rule 
violates due process. This rulemaking does not discriminate against 
asylum seekers or abridge their rights, as they are still able to apply 
for and receive employment authorization, but rather brings the 
regulatory scheme by which these applications are processed in line 
with processing for other types of applications for employment 
authorization. The rulemaking also does not effectively lead to denials 
of the underlying asylum claim because it does not amend any of the 
eligibility requirements or processes related to the asylum 
application. To the extent that it does cause delays in an applicant 
receiving an EAD, DHS notes that it expects to return to the processing 
timeframe in effect prior to Rosario, which the agency believes is a 
manageable and realistic timeframe. Further, providing employment 
authorization to those with pending asylum applications is statutorily 
authorized but not mandated, and this rulemaking is intended to ensure 
that limited resources are allocated in a manner which best allows the 
agency to process not only asylum seekers' initial applications for 
employment authorization timely, but also all other benefit requests.
    Comments: A commenter stated that USCIS must provide a clear 
picture of the impact of a proposal in its proposed rule and that 
updating its analysis in the final rule does not provide an adequate 
opportunity for public comment.
    Response: USCIS would direct the commenter to the regulatory impact 
analysis in the proposed rule. USCIS monetized the impacts where 
possible, and discussed qualitatively those that could not be 
monetized. In addition, data updates incorporated in this final rule 
have not substantially changed the assessments of the proposed impacts. 
See, e.g., 84 FR at 47149 (``The impacts of this rule would include 
both distributional effects (which are transfers) and costs.[FN2] 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). 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). 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 also 
solicited additional data and feedback from commenters. USCIS believes 
the proposal itself and the 60-day comment period provided more than 
sufficient opportunity for comment.

C. Removal of 30-Day Processing Timeframe

1. DHS Rationale and Need for the Rule
    DHS received hundreds of submissions on the need for the proposed 
removal of the 30-day processing timeframe or DHS' rationale for the 
same.

[[Page 37516]]

Fraud and National Security
    Comments: Commenters asserted that security and fraud detection do 
not conflict with the 30-day rule, and that USCIS can already take 
additional time to process EADs where there is suspected fraud. One 
commenter stated that there is no evidence that the 30-day timeframe 
resulted in increased grants of fraudulent applications.
    Response: DHS disagrees with commenters that if DHS retains the 30-
day timeframe it will be able to take additional time to vet certain 
asylum applicants for the EAD, and that fraud detection does not 
conflict with the 30-day timeframe. The regulatory timeframe and 
Rosario court order restrict the agency's ability to, in a sustainable 
manner, fully and thoroughly vet applicants. Additionally, in most 
cases where additional vetting was necessitated, the adjudication took 
longer than 30 days.
    Adequately and thoroughly vetting applicants improves USCIS's 
ability to detect fraud and national security concerns on individual 
cases as well as identify trends and compile statistical data on cases 
involving fraud and/or national security concerns.
    Comments: A commenter stated that the majority of EAD applications 
are not fraudulent and can be processed quickly, as evidenced by 
compliance with the Rosario litigation. The commenter stated that this 
indicates that EAD adjudication processes need to change, not the 
deadline itself. Similarly, an organization stated that USCIS failed to 
provide evidence of fraud impacting the EAD process. An individual also 
stated that USCIS has not conducted any investigation as to the extent 
of EAD fraud, but that a Government Accountability Office (GAO) report 
stated that ``only 374 asylum statuses were terminated for fraud 
between 2010-2014. In the same timeframe, well over 400,000 people 
fleeing war, disaster, political upheaval and imminent crisis were 
admitted to the United States to establish themselves for a better life 
and opportunity.'' An individual commenter stated that the reliance on 
``fraud'' as the catch-all justification for every change that 
undermines the strength of this country's asylum program is 
``tiresome.''
    Response: USCIS agrees with commenters that the majority of (c)(8) 
EAD applicants are found eligible for employment authorization based on 
their pending asylum applications and recognizes the adjudication of 
employment authorization applications is not a flawless system. For 
reasons stated elsewhere in this rule, although USCIS is complying with 
the Rosario court order, Rosario v. USCIS, 365 F. Supp. 3d 1156 (W.D. 
Wash. 2018), doing so is causing a serious strain on agency resources.
    Although USCIS has not published reports regarding fraud by aliens 
seeking an EAD based on a pending asylum application, it has internal 
procedures to monitor and vet applications and petitions for fraud 
risks. The GAO report focused on the merits of the underlying asylum 
application, and instances where an alien who was granted asylum status 
was later found to have obtained that status by fraud. Additionally, 
the GAO findings stated that USCIS has ``limited capabilities to detect 
asylum fraud. . . . Identifying and implementing additional fraud 
detection tools could enable USCIS to detect fraud more effectively 
while using resources more efficiently.'' \31\ The adjudication of 
applications for (c)(8) employment authorization is limited in scope to 
the instant application, however, and does not render a determination 
on frivolity or fraud for the underlying asylum application. The GAO 
acknowledges the limitations USCIS faces in identifying and tracking 
fraud, and encouraged the agency to implement additional tools to 
detect fraud. With this rulemaking, USCIS hopes to provide its 
adjudicators with the requisite time to accommodate existing vetting 
requirements and to maintain flexibility should trends change.
---------------------------------------------------------------------------

    \31\ GAO, Asylum: Additional Actions Needed to Assess and 
Address Fraud Risks (Dec. 2015), available at https://www.gao.gov/assets/680/673941.pdf.
---------------------------------------------------------------------------

    Fraud is not a constant. It is ever-evolving and efforts to commit 
fraud become increasingly sophisticated as methods for detecting fraud 
improve. USCIS must be continuously vigilant in an effort to detect new 
and advanced efforts to commit fraud. Additionally, agency rigor and 
dedication to uncovering fraud schemes serves as a deterrent. No amount 
of effort will detect all attempts to commit fraud, but USCIS must 
remain focused and diligent in order to deter fraudulent claims. USCIS 
relies on all available systems and documents to detect attempts to 
commit fraud, which increases the time spent on each adjudication. 
Maintaining appropriate vetting while processing historically high 
numbers of applications makes the current 30-day timeframe untenable 
without diverting significant resources from other benefit request 
types.
    Comments: Several commenters stated that DHS already has the option 
of stopping the 30-day adjudication timeframe if it suspects fraud by 
requesting additional proof from an applicant.
    Response: While it is true that the 30-day adjudication timeframe 
may be paused or restarted in certain instances, according to certain 
regulations,\32\ pausing or restarting the adjudication timeframe is 
not possible in all instances to accommodate routine background checks 
and fraud detection activities and investigations. USCIS disagrees that 
it can or should stop the adjudication timeframe in the manner proposed 
to accommodate typical adjudicative procedures rather than removing the 
timeframe altogether, as this rule does.
---------------------------------------------------------------------------

    \32\ See 8 CFR 103.2(b)(10)(ii) and 8 CFR 208.7(a)(2).
---------------------------------------------------------------------------

    Comments: A commenter stated that DHS receives biometric 
information during the 150-day waiting period, during which it has 
ample time to conduct background checks. Another commenter stated that, 
by proposing this regulation, USCIS is ``broadcasting'' that it has not 
done security checks on asylum seekers whose applications have been 
pending for many months. A commenter stated that background checks can 
begin with an applicant's arrival at the border, when their biometrics 
are taken with the IDENT system and could be compared against FBI and 
Interpol databases. Similarly, an individual commenter questioned 
USCIS' statement that a slower process will increase national security 
because applicants who are seeking work authorization due to pending 
asylum applications already have supplied biometric and biographical 
data, which should allow processing to go quickly.
    Response: USCIS acknowledges that biometric data is often collected 
prior to an asylum seeker applying for employment authorization, 
including at a border encounter, as part of USCIS' adjudication of an 
asylum application, and/or during removal proceedings.\33\ When an 
alien submits an application or petition with an associated biometrics 
requirement (e.g., a pending asylum application), the data collected in 
relation to the asylum application is not systematically linked to a 
subsequently filed ancillary application for

[[Page 37517]]

employment authorization. Vetting is triggered by individual benefit 
requests, in this case, the EAD application. Filing an application for 
an EAD triggers new vetting in association with this application. EAD 
officers are not permitted to ``refresh'' or otherwise rely on vetting 
performed in association with another application. Because USCIS's 
current vetting processes remain tied to the particular benefit request 
rather than the individual, vetting is initiated for the EAD 
application separate and apart from the asylum application. The 
proposed rule to eliminate the 30-day adjudication timeframe for 
initial (c)(8) EADs is not an admission of failing to conduct 
appropriate vetting in current adjudications, but rather is an 
operational necessity as asylum claims have reached historic levels in 
recent years, and because of the resources needed to adhere to the 
regulatory timeframe. Finally, USCIS notes that asylum seekers are not 
required to apply for an EAD and not all applicants will do so, so 
there is no operational efficiency to ``pre-adjudicate'' a benefit that 
may never be sought.
---------------------------------------------------------------------------

    \33\ DHS plans to propose a rule to modify its biometrics 
procedures, establish consistent identity enrollment and 
verification policies, and align USCIS' biometrics collection with 
other immigration operations. Office of Management and Budget, 
Executive Office of the President, Collection and Use of Biometrics 
by USCIS (Fall 2019 Unified Agenda), https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201910&RIN=1615-AC14.
---------------------------------------------------------------------------

    USCIS did not propose a slower process, but rather explained how 
its vetting procedures have changed since the 30-day timeframe was 
implemented more than 20 years ago, specifically to safeguard national 
security in response to the September 11, 2001, attacks. USCIS is 
removing this timeframe to provide its adjudicators a sustainable 
amount of time to complete these vetting procedures, as well as account 
for the historic number of filings in recent years.
    Comments: Some commenters said fraud concerns are unfounded and 
should not cause delays, concluding that if DHS has a concern about an 
alien, then it should quickly vet the application, rather than delay 
it. Other commenters stated that USCIS' national security statements 
serve only to prompt the need for a speedier process to properly 
protect national security, rather than a proposal to delay the process 
further. Some commenters stated that this need for a speedier process 
is further compounded by the fact that the EAD applicants are asylum-
seekers who are already residing in the United States, and having 
unvetted people in the U.S. subjected to a potentially indefinite 
review period seems contrary to the DHS's stated interests. An 
individual commenter concluded that any need for additional vetting 
prior to issuance of EADs could be addressed by means other than simply 
eliminating the processing parameters for all applicants.
    Response: USCIS is charged with administering and safeguarding the 
integrity of the lawful immigration benefits. While some background 
checks are systematically initiated at intake, safeguarding against 
fraud and national security concerns also relies on manual processes in 
which officers analyze and assess the information available to them in 
the record and electronic databases. Likewise, officers are able to 
assess accurately whether a derogatory piece of information actually 
relates to the applicant, which allows applicants to receive a decision 
far more quickly than if any point of concern was routed outside of 
typical processing for additional scrutiny. Concerns involving fraud or 
national security are often identified in the course of adjudication, 
rather than quickly identified through an upfront review.
    USCIS processes all EAD applications for asylum applicants as 
quickly as possible, including a careful review of those applications 
for aliens who may be flagged for additional scrutiny due to national 
security concerns. However, such additional review requires time, 
resources, and coordination with law enforcement agencies. Such review 
periods are not indefinite and are completed as expeditiously as 
possible.
    Although there could be alternative means to address additional 
vetting, such as alternative timelines, USCIS believes eliminating the 
timeframe provides greater flexibility to the agency to balance its 
large workload efficiently.
    Comments: Some commenters stated that not adjudicating EAD 
applications will not reduce national security threats, as asylum 
applicants are able to remain physically present in the United States 
regardless of the EAD decision. Others provided citations to articles 
relating unemployment and crime \34\ to support assertions that the 
proposal could be counterproductive to public safety and security, as 
asylum applicants would be compelled to find illegitimate sources of 
income because of USCIS' refusal to provide them with EADs.
---------------------------------------------------------------------------

    \34\ The commenter cited to Karin Edmark, Unemployment and 
Crime: Is There a Connection?, 107, The Scandinavian Journal of 
Economics No. 2, 353, 370 (Jun. 2005); Steven Raphael and Rudolf 
Winter[hyphen]Ebmer, Identifying the Effect of Unemployment on 
Crime, Vol. 44 The Journal of Law & Economics No. 1, 259, 280 (Apr. 
2001); Mikko Aaltonen et al., Social determinants of crime in a 
welfare state: Do they still matter?, Vol. 54 Acta Sociologica No. 
2,161 (June 2011).
---------------------------------------------------------------------------

    Response: USCIS disagrees that vetting of employment authorization 
applications does not reduce national security threats. As part of its 
mission as a screening and vetting agency, USCIS conducts national 
security and public safety checks on all applications, petitions, and 
benefit requests submitted to the agency. As indicated in response to a 
previous comment, vetting is triggered by individual benefit requests, 
in this case the EAD application. It is possible an asylum applicant 
became a potential threat to national security or public safety after 
the filing of the asylum application or that new information becomes 
available, but USCIS would not know until initiating security checks 
when the pending asylum EAD application is received. The agency is 
attempting to move away from these ``point in time'' checks, but that 
is something we continue to work toward. These checks, during the 
adjudication process, allow for referral to the Background Check Unit 
(BCU) or Center Fraud Detection Office (CFDO) for additional vetting 
where significant concerns are identified, as well as potential 
investigation by ICE, all of which take time which does not pause the 
30-day regulatory timeframe. Further, in some circumstances, the 
findings may render the applicant subject to mandatory detention or 
ineligible for the underlying asylum claim and/or the EAD.
    USCIS also does not agree that elimination of the 30-day timeframe 
and any potential attendant processing delays will negatively impact 
security or public safety by driving asylum seekers to criminal 
activity. The articles relied on by the commenter discuss studies 
conducted that generally find socio-economic status is strongly 
associated with crime, specifically property crime. USCIS recognizes 
that there may be a correlation between unemployment, socio-economic 
status, and crime; however, it does not concur that the extent of the 
change (returning to the adjudication timeframe pre-Rosario) would have 
such severe effects. Further, an asylum seeker who chooses criminal 
behavior to obtain a source of income, rather than waiting to receive 
employment authorization could be denied asylum as a result of such 
criminal activity, depending on its type and severity.
    Comments: Some commenters stated that USCIS makes frequent 
reference to a rise in national security threats as a reason to spend 
more time and resources on each decision but has reported that it has 
been able to decide over 99 percent of EADs within the 30-day timeframe 
for over the past year, which proves the agency's ability to adequately 
vet requests in a timely manner. Another commenter stated that USCIS' 
national security justification is unsubstantiated, especially because 
USCIS explains that additional security

[[Page 37518]]

and anti-fraud measures are already built into the EAD adjudication 
process. Others stated that the agency had a decade to implement the 
post-9/11 security checks that it now claims make the 30-day timeframe 
impracticable.
    Response: As noted, the agency has had to comply with the Rosario 
court order, and as discussed elsewhere in this rule, continuing to 
adhere to the 30-day timeframe is not sustainable for USCIS and its 
adjudicators, and resources have been moved from other competing 
priorities in other product lines.
    USCIS acknowledges that certain security checks are built into the 
EAD adjudication process across benefit types and this rule does not 
change those processes, it simply reflects that such procedures are 
resource intensive. Modernized vetting procedures are also not 
reflected in the current regulatory timeframe because that timeframe 
was created more than 20 years ago. Additionally, the level of fraud 
sophistication and the threat immigration-related national security 
concerns pose today are more complex than they were when the timeframe 
was created. Although the events of 9/11 prompted a new and intensive 
focus on national security, especially in the immigration context, 
vetting does not remain static as USCIS continually assesses its 
methods and systems to improve its ability to detect and deter those 
who would enter the United States to do harm. Those who do have ill 
intent continue to refine and improve their methods and USCIS must do 
the same. In all adjudications, USCIS works to provide thorough vetting 
and eligibility determinations and advance U.S. interests in fairly 
administering lawful immigration while detecting and deterring fraud 
and threats to national security and public safety.
    Comments: One commenter asked how long it takes to vet somebody 
from another country without any paperwork or medical records.
    Response: To the extent that the comment is relevant to this 
rulemaking, USCIS notes that the length of the vetting process varies, 
and this may depend on the documents an alien seeking asylum may have 
in their possession or to which they have access. USCIS uses a 
combination of systems, biometrics, and documents to vet aliens 
requesting benefits.
Resource Concerns and Efficiency
    Comments: A commenter stated that the proposed rule would save 
costs by eliminating the need to litigate and comply with Rosario.
    Response: USCIS has worked diligently to comply with the Rosario v. 
USCIS decision. Though USCIS predicts that this rule would end future 
litigation over the 30-day adjudication timeframe, even applications 
that are not subject to a set timeframe could, in some cases, be the 
subject of litigation on ``unreasonable delay'' theories. USCIS notes 
that cost-savings resulting from reduced litigation and the cost from 
potential future litigation on ``unreasonable delay'' are not monetized 
in the regulatory impact assessment below.
    Comments: A commenter stated that USCIS cannot simply rely on the 
processing backlog to support its proposal, as the backlog was even 
greater when, in 1994, the Justice Department decided to finalize the 
30-day rule. A commenter cited the proposal's statement that USCIS 
cannot predict future security needs and commented that no proposed 
rule can predict the future; however, USCIS faced the same uncertainty 
in 1994, when it finalized the 30-day timeframe rule. Others commented 
that changes to intake and EAD document production that have been in 
place for more than 15 years cannot justify the proposed rule, since 
logic would dictate that centralization would make the process more 
efficient. Another commenter cited the 2019 Ombudsman Report \35\ as 
failing to list intake requirements or security and vetting as 
challenges to the timely adjudication of EAD applications.
---------------------------------------------------------------------------

    \35\ USCIS Ombudsman, Annual Report, 78, (Jul. 2019), available 
at https://www.dhs.gov/sites/default/files/publications/cisomb/cisomb_2019-annual-report-to-congress.pdf.
---------------------------------------------------------------------------

    Response: USCIS acknowledges that backlogs ebb and flow and agrees 
with commenters that, in some cases, an agency cannot predict future 
needs. Changing backlogs can result from any number of changed 
circumstances, including but not limited to, changes in receipt 
volumes, legal requirements, court rulings, regulation and policy 
changes, and changes to internal processing. Because of the many 
variables which contribute to changing backlogs, USCIS is best able to 
process the great number of benefit requests timely when it has 
flexibility to adjust workflows and staffing levels across form types. 
Hard processing timelines for one benefit type box the agency in and, 
as in this case, require the diversion of resources from other benefit 
types to maintain a processing time for one individual adjudication 
line.
    With respect to the 1994 backlog, USCIS recognizes that there was a 
sharp increase in initial EAD applications in the mid-1990s. FY 1993 
had 90,883 initial EAD applications, which jumped to 176,041 in FY 1994 
and remained high with 158,938 in FY 1995 and 120,621 in FY 1996 before 
dropping below 50,000 per year for several years. USCIS notes that even 
at the peak in 1994, the amount of applications received in 1994 is 
considerably lower than the number of applications filed in recent 
years, which peaked at 262,965 in FY 2018. And regardless, DHS is not 
bound to forever retain the 30-day regulatory timeframe, even assuming 
that the INS adopted that timeframe with full knowledge of a growing 
backlog. DHS retains the authority to remove the timeframe, and it is 
doing so here for the reasons stated in this preamble.
    USCIS reviewed the 2019 Ombudsman Report and though it did not list 
intake requirements as a reason for increased EAD adjudication times, 
it did specifically state that ``background vetting on applications, 
including the predicate petitions or applications upon which EAD 
applications are based, also contribute to EAD processing times.''
    The centralization of the agency's intake and EAD document 
production, though implemented in 2006, had led to a need to remove the 
30-day timeframe. Centralized, rather than local, intake procedures 
provide efficiency in that USCIS is able to leverage contract staff to 
conduct high-volume data entry and other associated intake tasks. 
However, centralized intake, which occurs at offsite locations, also 
incurs delay and costs associated with shipping physical files to 
another location for adjudication. To comply with the Rosario court 
order, USCIS has been forced to conduct application intake onsite at 
the adjudicating office to avoid the delay caused by file shipment. 
This process is less efficient and more costly than Lockbox intake, but 
is necessary to attain compliance with the Rosario court order. These 
changes in intake procedures, coupled with the increased filings and 
modifications to vetting procedures, explain why the 30-day timeframe 
is no longer feasible.
    Comments: A couple of commenters referenced DHS's statement that it 
expects to be able to meet FY 2017 adjudication timeframes, i.e., to 
adjudicate 78 percent of EAD applications within 60 days. The 
commenters stated that this contention seems disingenuous considering 
that DHS does not propose a 60-day timeframe. The commenters went on to 
state that DHS's lack of commitment to a specific timeframe coupled 
with current EAD backlogs does not support

[[Page 37519]]

DHS's claim of being able to adjudicate 78 percent of EAD applications 
within 60 days. Another commenter referenced the 78 percent statistic 
and asked if this would continue to occur if USCIS is not mandated to 
return them within 60 days. Another commenter stated that, even now, 
with guidelines in place, the agency fails to meet the 30-day mandate 
in more than half of cases.
    Response: USCIS would like to provide clarity to commenters 
regarding the adjudication rates. USCIS stated that 78 percent of 
initial applications were adjudicated within 60 days prior to the 
Rosario court order, but since its issuance, USCIS has been in 
compliance with the order. USCIS continues to face a significant 
backlog but strives to provide timely adjudication across all form 
types, regardless of a regulatory timeframe. As stated in the proposed 
rule, DHS expects to return to the pre-Rosario timeframe with 
finalizing this rule, but it will not codify another regulatory 
timeframe at this time. While USCIS cannot predict ebbs and flows in 
receipts, removing the 30-day timeframe without creating another 
regulatory timeframe allows the agency to adjust workflows and staffing 
resources to maintain timely processing for this and other benefit 
requests.
    Comments: A commenter stated that USCIS is unable to support either 
its justifications or its impact analysis without citation to recent 
and actual processing times. The commenter went on to state that USCIS 
explains that the court order has forced it to focus more resources on 
adjudicating initial EADs for asylum, but it does not explain how it 
allocated its resources before, which types of cases it prioritized, 
and which specific case types are suffering as a result of the court 
order. Further, this commenter said USCIS claims that the current rule 
is outdated, and the current adjudication process is more complex, but 
fails to recognize other important conditions that have changed since 
the rule was adopted (more funding, staff, and technology). Lastly, the 
commenter cited to the statement in the proposed rule that, if USCIS 
could predict a reduction in total application volume, such a reduction 
``would not, on its own, serve as a sufficient basis to leave the 30-
day adjudication timeline in place'' to demonstrate that USCIS admits 
that it would have proposed this rule regardless of the additional 
resource burden. The commenter states that this removes resource burden 
as a standalone justification for the proposed rule.
    Response: USCIS's resource allocations and prioritizations are 
fluid and regularly adjusted based on demand, processing time 
constraints, resource availability, legislative and policy changes, and 
other considerations. To comply with the Rosario decision, USCIS 
increased officer hours for adjudication of initial (c)(8) 
applications, and centralized these adjudications to minimize time lost 
to file movement and allow for more accurate tracking of class members' 
applications, which has placed a strain on the agency's resources in a 
manner that is difficult to sustain. USCIS did provide recent and 
actual processing times in the proposed rule, and has supplemented this 
final rule with updated data. USCIS also explained in the proposed 
rule: (1) How its adjudications have changed and resources have shifted 
since the 30-day provision was promulgated, (2) how it prioritizes 
adjudications through LIFO \36\, and (3) how changes in technology and 
security initiatives have impacted the process. While USCIS continues 
to work to improve efficiency and modernize adjudicative processes, the 
initial (c)(8) EAD applications continue to be filed on paper and 
processed using an older case management system. Unfortunately, 
modernizing intake and adjudication systems is a lengthy and labor 
intensive process and there is currently no expected timeframe in which 
USCIS expects a more modernized process for initial (c)(8) EAD 
applications.
---------------------------------------------------------------------------

    \36\ USCIS did note in the proposed rule that it anticipated 
updating its data regarding LIFO in the final rule; however, the 
change to LIFO was accompanied by a historic increase in filings, 
and it has been difficult for USCIS to ascertain all of the impacts.
---------------------------------------------------------------------------

    With respect to the agency's statement on reduced application 
volume, USCIS disagrees with the commenter's understanding that it 
would have proposed this rule regardless of the current resource 
burden. While the number of applications received has dropped from peak 
levels in 2018, the situation created by unforeseen and sustained 
spikes in application volumes highlighted that such specific regulatory 
timeframes can cause significant operational burdens when circumstances 
outside USCIS' control and ability to anticipate occur. USCIS 
acknowledged that it could not predict how administrative measures and 
external factors, such as immigration court backlogs and changes in 
country conditions, would affect total volumes. It then acknowledged 
that even if it could predict such circumstances, it was proposing to 
remove the timeframe ``in light of the need to accommodate existing 
vetting requirements and to maintain flexibility should trends 
change.'' 84 FR at 47161.
    Comments: Multiple commenters stated that USCIS' compliance with 
the Rosario court order demonstrates that a 30-day timeframe is 
practicable and that USCIS could comply with the 30-day timeframe and 
retain vetting procedures, contrary to the proposed rule's contention 
that USCIS would have to reduce or eliminate vetting to continue 
complying. Another commenter cited to the 2019 Ombudsman Report and 
commented that the EAD processing delays had been increasing before the 
Rosario decision and were unrelated to any reallocation of resources. 
One commenter stated that ``USCIS time frames posted publicly'' show 
that Form I-765 takes mere minutes to process. The commenter stated 
that because it takes mere minutes to process such applications, it is 
only reasonable to retain the 30-day timeframe.
    Response: DHS recognizes that EAD processing times had been 
increasing prior to Rosario, but DHS asserted and continues to assert 
that its reallocation of resources occurred due to the litigation and 
in order to comply with the court order, and that such reallocation of 
resources is not a long-term, sustainable solution because USCIS has 
many competing priorities and many time-sensitive adjudication 
timeframes. Although USCIS is currently in compliance with the Rosario 
court order, it continues to reiterate that maintaining the 30-day 
timeframe is not sustainable. This rulemaking is intended to ensure 
that limited resources are allocated in a manner which best allows the 
agency to process not only asylum seekers' initial applications for 
employment authorization timely, but also all other benefit requests, 
as maintaining the current 30-day processing time is already 
significantly diverting resources from other adjudications and is 
expected to continue to do so. Further, since the initial (c)(8) 
application does not currently require the applicant to pay a fee,\37\ 
other benefit requestors are bearing the cost of these adjudications 
while resources are pulled away from the adjudication for which they 
paid a fee. This rulemaking brings the regulatory scheme by which these 
applications are processed in line with

[[Page 37520]]

processing for other types applications for employment authorization.
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    \37\ DHS has proposed to set a $490 fee for initial employment 
authorization applications for those with pending asylum 
applications. See U.S. Citizenship and Immigration Services Fee 
Schedule and Changes to Certain Other Immigration Benefit Request 
Requirements, 84 FR 62280 (Nov. 14, 2019). DHS has not yet issued a 
final rule with respect to that proposal.
---------------------------------------------------------------------------

    DHS acknowledges that the time an officer spends on the actual 
adjudication may take ``mere minutes'' on applications without 
eligibility or fraud concerns, but the time an officer spends on a 
particular application is not indicative of the totality of work that 
is involved in receiving, vetting, adjudication, and document 
production. The USCIS Case Processing Time website provides regularly 
updated and accurate total case processing time information at https://egov.uscis.gov/processing-times/.
Other Comments
    Comments: Several commenters stated that the true intent of the 
proposal is to serve as deterrent for asylum applicants seeking 
protections in the United States. Other commenters made similar 
statements, citing the Migrant Protection Protocols, and rules such as 
Asylum Eligibility and Procedural Modifications.\38\ Similarly, another 
commenter said indefinitely blocking asylum seekers' ability to support 
themselves and their families is an abuse of discretion and an attempt 
to further deter people from seeking asylum in the United States.
---------------------------------------------------------------------------

    \38\ 84 FR 33829 (July 16, 2019).
---------------------------------------------------------------------------

    Response: DHS acknowledges commenter concerns; however, this 
rulemaking is not intended as a deterrent and does not impede an 
alien's opportunity to seek asylum in the United States. Neither does 
this rulemaking change the process by which an alien seeks asylum or 
any eligibility criteria for obtaining asylee status. This rule solely 
affects a benefit an asylum seeker may request while their application 
for asylum has been pending for a period of at least 180 days. USCIS is 
simply removing a self-imposed agency processing timeline that is no 
longer operationally feasible, without impacting the underlying basis 
for the benefit request.
    Employment authorization for applicants with a pending asylum 
application, however, is not a statutory entitlement, unlike employment 
authorization for asylees, who are eligible for employment incident to 
status, as the statute explicitly states. Compare INA section 
208(c)(1)(B) with (d)(2) (``An applicant for asylum is not entitled to 
employment authorization[.]''). USCIS has provided a regulatory avenue 
for asylum applicants to seek employment authorization; thus, the 
agency has not indefinitely blocked an applicant's ability to support 
themselves and their families. USCIS strives to provide timely and 
efficient adjudications for all benefit requests, including asylum and 
related benefits, but the significant increases in applications for 
asylum in recent years are overtaxing agency resources to process 
ancillary benefits within the 30-day regulatory framework.
    Comments: A commenter questioned the benefit of the proposed rule, 
reasoning that it would not reduce the immigration backlog any more 
quickly than the current timeframe and asking whether the purpose of 
the rule was to redirect resources to ICE. Similarly, a commenter 
questioned how the added ``flexibility'' from the proposal would help 
reduce immigration application backlogs, faulting DHS for refusing to 
commit to reducing other wait times as a result of eliminating the 30-
day EAD timeframe. Another commenter stated that removing the incentive 
for USCIS to work quickly will result only in obligations being 
stripped and will not cause the agency to work more effectively.
    Response: DHS did not assert that this change would reduce 
immigration benefit request backlogs, but rather that it was proposing 
this change, in significant part, because of the strain of the growing 
backlog coupled with the steady stream of new filings. This rulemaking 
is not an effort to redirect resources to ICE. In order to maintain the 
current 30-day processing time, USCIS has taken a number of dramatic 
measures to ensure compliance. This includes centralizing the workload 
in one service center to allow for close monitoring and reporting 
practices, eliminating lost time accrued through shipping physical 
files, and diverting both support and officer resources to ensure the 
timeline is met. With finalizing this rule, those diverted resources 
could return to the roles they performed prior to Rosario. DHS has 
chosen not to commit to defined adjudication times across all of its 
employment-authorization processing in order to provide flexibility for 
the agency to allocate its resources. As noted in the proposed rule, 
codifying by regulation any new adjudication timeframe for EADs would 
unnecessarily constrict adjudication workflows and the agency is unable 
to plan its workload and staffing needs with the level of certainty 
that a binding timeframe may require. Removing the 30-day timeline will 
allow greater flexibility, including to share this workload among other 
service centers and reallocate resources more evenly to meet demand.
    Comments: A commenter cited a past rulemaking \39\ to state that 
the 30-day deadline was initially implemented to ensure that bona fide 
asylees were eligible to obtain employment authorization as quickly as 
possible, not to ensure that USCIS and former INS had sufficient time 
to process applications.
---------------------------------------------------------------------------

    \39\ Department of Justice, Inspection and Expedited Removal of 
Aliens; Detention and Removal of Aliens; Conduct of Removal 
Proceedings; Asylum Procedures, 62 FR 10312-01 (Mar. 6, 1997).
---------------------------------------------------------------------------

    Response: DHS has reviewed extensively the regulatory history of 
the promulgation of the employment authorization provisions for those 
with pending asylum applications. The rulemaking preamble cited to by 
commenter, and referenced in DHS's proposed rule, discusses the 
employment authorization provisions that ``ensure that applicants who 
appear to an asylum officer to be eligible for asylum but have not yet 
received a grant of asylum are able to obtain employment 
authorization.'' 62 FR 10317. The rulemaking then discusses the lengthy 
process of identity and fingerprint checks, and states that given the 
statutory requirement that asylum not be granted until inadmissibility, 
deportability, or ineligibility are determined at INA section 
208(d)(5)(A)(i), an alien who would otherwise appear to be eligible may 
have to wait a lengthy period of time before being granted employment 
authorization. Id. at 10317-18. The agency believed such a result was 
contrary to a main goal of the asylum reforms promulgated in 1995: ``to 
ensure that bona fide asylees are eligible to obtain employment 
authorization as quickly as possible''. Id. ``Bona fide'' asylees are 
those who have been deemed eligible by the agency but have not yet 
received an approval.
    USCIS is committed to adjudicating all employment authorization 
applications as quickly as practicable, however, both internal 
processes and external factors have changed in the intervening decades 
since the 30-day rule was promulgated.
3. Alternate Suggestions for Regulatory Amendments to 30-Day Timeframe
    Approximately 310 commenters provided alternative suggestions for 
regulatory amendments to 30-day processing timeframe.
Alternative Proposals and Timeframes Rather Than Complete Removal
    Comments: Some commenters said DHS should have proposed an 
alternative or extended adjudication

[[Page 37521]]

timeline, such as 45 or 60 days, or condition the length of the 
adjudication timeframe on reportable metrics, rather than a complete 
timeframe removal, in order to provide predictability and relief to 
asylum seekers. Some commenters stated that removing a timeframe 
without providing an alternative suggests that USCIS anticipates these 
applications being significantly delayed. Another commenter stated that 
the absence of an adjudication deadline is likely to result in 
unnecessarily lengthy adjudication periods for EAD applications, which 
are relatively simple to resolve and should not require more than 30 
days. A few commenters stated that DHS has not sufficiently justified 
why an alternative or longer deadline would not be acceptable. Another 
commenter said amending a rule to limit the burden on USCIS to ensure 
the betterment of our country might be a good idea but doing so by 
removing the deadline without replacing it is not.
    Response: DHS considered imposing a 90-day timeframe rather than 
removing the timeframe entirely, and discussed this extensively in the 
proposed rule. DHS appreciates commenters' suggestions regarding 
alternative timeframes, and recognizes that setting another timeframe 
could provide more predictability to asylum seekers and would provide 
USCIS with more time to adjudicate EAD applications. However, USCIS 
determined not to incorporate a new regulatory timeframe because 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 will be necessary in the future. It is imprudent to impose 
hard processing deadlines, because USCIS cannot reliably predict future 
workload, processing, and other changes. Although imposing a deadline 
reliant on reportable metrics may alleviate some of the concern of a 
hard deadline, the commenter proposed no specific metrics and creating 
additional tracking and predictive assessments from the agency that 
have not yet been evaluated would be an imposition to the agency. 
Further, USCIS did not propose this approach or relevant metrics and 
thus to finalize such metrics in this final rule would be outside the 
scope of this rulemaking.
    The processing of EAD applications is not simple, and increases in 
asylum-based filings in recent years, coupled with the changes to 
intake and vetting procedures, have placed a great strain on agency 
resources that lead to an increased processing time. DHS recognizes 
that removing the timeframe may cause concern to applicants regarding 
potential delays in adjudication; however, USCIS expects to return to 
the adjudicatory timeframe before Rosario. While USCIS anticipates this 
change may lead to short processing delays, this change brings initial 
EAD application processing in line with other similar applications and 
allows operational flexibility to shift workloads and continue to vet 
and adjudicate applications in the most timely fashion practicable 
without detrimental impact to other benefit request types.
    Comments: A commenter drew similarities to the AC21 rule repealing 
former 8 CFR 274a.13(d), which guaranteed the adjudication of 
employment authorization applications for most immigrant and 
nonimmigrant categories within 90 days, replacing it with, what the 
commenter claimed was an inadequate automatic 180-day extension. This 
commenter stated that the lack of any processing deadline on initial 
applications has caused significant disruption in the lives of those 
subject to the changed rule. The commenter opposed this change for 
similar reasons, stating that, without a clear processing deadline, 
asylum seekers and their families are faced with uncertainty as to 
whether they will be able to support themselves, and this 
unpredictability will severely impact them and their communities.
    Response: With respect to commenter's concerns regarding AC21, 
USCIS does not possess data or other evidence to address the 
commenter's subjective assertion that processing times for other EAD 
categories have caused ``significant disruption in the lives of those 
subject to [AC21].'' In FY 2017, USCIS processed 94.2 percent of EAD 
classifications, excluding (c)(8), within 180 days; in FY 2018 it was 
83.4 percent, in FY 2019, 81.5 percent, and as of February 29, 2020, 84 
percent within 180 days. USCIS acknowledges the potential effect of 
this change on asylum seekers and their social support networks, but 
must weigh that effect against the impacts on other benefit requestors 
and USCIS operational realities given changed vetting requirements and 
increased receipt volume in recent years. By allowing the agency 
flexibility to shift workloads and resources to accommodate external 
and internal changes in the application landscape, USCIS believes this 
rule will allow greater efficiency throughout EAD application types. 
USCIS recognizes the potential uncertainty that may result and 
routinely updates publicly available processing times \40\ to provide 
applicants with accurate information to plan for when to file 
applications and their personal financial needs.
---------------------------------------------------------------------------

    \40\ 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.
---------------------------------------------------------------------------

    Comments: Some commenters suggested that USCIS allow asylum-seekers 
to submit their employment authorization applications earlier (for 
example, after 90 days or 120 days instead of 150 days), or 
concurrently with their asylum applications, to allow USCIS more time 
to properly vet each alien while reducing the risk of harm to each 
applicant and the economy. Some commenters stated that under INA 
section 208(d)(2), asylum seekers may not be granted an initial EAD 
until their asylum applications have been pending for 180 days, but 
nothing prevents USCIS from accepting initial EAD applications 
concurrently with the filing of the asylum application. Commenters also 
stated that the number of EAD applications has dropped since 2017 and 
will likely continue to do so. Another commenter said concurrent 
filings would reduce costs to legal services providers and asylum 
seekers, by allowing both the Form I-589, Application for Asylum and 
Withholding of Removal, and the Form I-765, Application for Employment 
Authorization, to be finalized in a single appointment.
    Response: DHS appreciates commenters' suggestions to permit asylum 
applicants to file during the 150-day waiting period. USCIS thinks, 
however, that allowing an applicant to file for and obtain an EAD 
earlier based on a pending asylum claim creates an incentive to file 
non-meritorious asylum applications. Additionally, allowing asylum 
seekers to file earlier creates a different operational burden. Because 
the statutory scheme mandates that employment authorization cannot be 
granted until the asylum application has been pending for a minimum of 
180 days, not including delays requested or caused by the applicant, 
USCIS would need to implement new tracking and records mechanisms to 
ensure applications would not be adjudicated too early. This would 
impede the agency's ability to nimbly move workloads between centers 
and officers. Allowing applicants to file earlier than the 150 day 
timeline currently in place would necessitate creation of a new clock 
system to track how long asylum applications were pending prior to 
approval, in order to avoid approving an EAD when the asylum 
application had

[[Page 37522]]

been pending less than 180 days. This would require tracking and 
potentially holding applications over a longer span of time, adding 
complexity, and would additionally complicate accounting for 
applications subject to the prior rules and those subject to this rule 
on or after its effective date.
    The burden associated with statutory compliance would create new 
operational costs related to new and additional tracking as well as 
bifurcated requirements related to cases pending on or after the 
effective date of this rule while not creating new efficiencies. Asylum 
applications are adjudicated by Asylum Officers within the Refugee, 
Asylum, and International Operations directorate, while applications 
for EADs are processed by Immigration Services Officers within the 
Service Center Operations Directorate. Asylum Officers receive 
intensive and specialized training to understand the nuances and 
sensitivities involved in assessing eligibility for asylum. Immigration 
Services Officers also receive specialized training, but they are 
frequently trained to adjudicate many different benefit request types 
and, as located in service centers, and do not have face to face 
interactions with benefit requestors. In short, the nature of and 
procedures for these adjudications are very different. If USCIS allowed 
concurrent filing, the applications would still need to be adjudicated 
through completely different processes. Additionally, as the proposed 
rule did not contemplate allowing earlier filing, it is outside the 
scope of this rulemaking.
    DHS acknowledges that the volume of initial (c)(8) EAD applications 
has dropped slightly as compared to 2017. However, as of FY 2019, this 
type of application remains historically high, with FY 2018 receipts at 
262,965 and FY 2019 at 216,038; maintaining the 30-day timeframe poses 
an unsustainable burden during periods of high application volumes, 
while allowing applicants to file earlier would create additional 
administrative costs and burdens.
USCIS Should Acquire More Resources Instead of Removing the Timeframe
    Comments: Several commenters stated that, rather than proposing 
this rule, DHS could acquire more resources for operations at each 
service center as well as at card production facilities (for example, 
by hiring more adjudication staff). A commenter said fees for other 
forms could be increased to accommodate the cost of hiring additional 
adjudicators. However, the commenter said, with the recent elimination 
of an entire category of eligibility for fee waivers, it seems likely 
that fee increases would not even be necessary to increase revenue. 
Similarly, another commenter proposed hiring more USCIS staff as a 
solution, even if that means including a fee payment I-765 on asylum 
applications. Several commenters took issue with DHS's rationale that 
hiring staff ``would not immediately'' shorten adjudication timeframes, 
stating that it is no excuse for not considering that alternative, and 
that the concern should be whether doing so would address the issue 
long-term. Another commenter stated that the temporary delay between 
hiring new employees and their ability to process applications does not 
require a permanent elimination of a fixed processing timeframe.
    Response: DHS seeks to complete every request as soon as it 
possibly can while ensuring that benefits are provided only to those 
who are eligible. As stated in the proposed rule, DHS has determined 
that it should not be subject to a procedural deadline codified in 
regulations to adjudicate a certain immigration benefit request in a 
very short time. As the commenters note, USCIS is authorized by law to 
set fees at a level necessary to recover the full costs of adjudication 
and naturalization services. See INA section 286(m), 8 U.S.C. 1356(m). 
As required by the Chief Financial Officers Act of 1990 (CFO Act), 31 
U.S.C. 901-03, USCIS analyzes its costs every two years to determine if 
its fees are adequate to recover its full costs. If fee revenue is 
projected to be too high or low, USCIS conducts rulemaking to adjust 
its immigration benefit request fees to the amounts necessary to cover 
its operating costs. See, e.g., 84 FR 62280 (Nov. 14, 2019). In 
November of 2019, DHS published a proposed rule that proposes a new fee 
schedule, including a fee for an initial EAD for asylum applicants. Id. 
at 62320.
    DHS stated in the proposed rule for this rulemaking that providing 
the resources to meet this regulatory timeframe requires USCIS to use 
fees paid by other benefit requestors. See 84 FR at 47165. DHS believes 
USCIS requires the flexibility to devote its resources where they are 
needed to meet seasonal demands, filing surges, and DHS priorities and 
not to meet an outdated regulatory deadline. Therefore, DHS will remove 
the 30-day deadline from the regulations.
    Further, even if and when the funds are available to hire 
additional staff and officers, there is a significant lag time in the 
course of posting job announcements, selecting candidates, background 
investigations for selectees, onboarding, and training and mentoring 
before new hires are able to adjudicate. Throughout this time, backlogs 
build and resources continue to be diverted to support programs with 
processing timelines.
    While DHS recognizes that the suggested staffing solution may be 
more long-term, the agency does need an immediate solution, as 
resources continue to be strained. While USCIS strives to maintain the 
staffing necessary to timely process all benefit request types and 
continuously analyzes workload trends and production, simply hiring 
more people does not provide a short term fix and, even when new hires 
are working at full competency, shifting demands and priorities 
continuously present new challenges that are even more difficult to 
adjust to with a processing timeline in place. As noted in the proposed 
rule, hiring additional staff may not shorten adjudication timeframes 
in all cases 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.
    Comments: A commenter said the rule suggests that it would be too 
expensive to hire additional officers to keep up with timely processing 
and cites to ``the historic asylum backlog,'' but the commenter stated 
the reasoning appeared to be pretextual since the proposed regulations 
only deal with initial EADs filed by asylum seekers and not EAD 
renewals for asylum seekers whose cases are currently in the asylum 
office backlog.
    Response: The USCIS Asylum Division received 44,453 affirmative 
asylum applications in FY 2013, with increases each year up to a peak 
of 142,760 in FY 2017. This more a than three-fold increase in four 
years not only created backlogs in processing asylum applications, but 
also caused a steep increase in the number of both initial and renewal 
applications for employment authorization, with FY 2018 totals at 
324,991 and FY 2019 totals at 551,266.\41\ Both the initial workload 
and renewal workload are processed by officers with different 
specialized training to provide a more streamlined and efficient 
adjudication

[[Page 37523]]

process. Further, EAD renewal applications for asylum seekers are not 
subject to adjudication timelines, and also have an automatic extension 
clause to mitigate any lapse in employment authorization for these 
aliens. The 30-day rule and Rosario court order have created the 
necessity for a centralized process to ensure compliance, which 
prevents USCIS from shifting workloads among officers trained to 
adjudicate EAD applications, when it may be more efficient and offer a 
more timely adjudicative process. This rulemaking aims to improve 
flexibility and efficiency by taking away barriers to using existing 
resources to the greatest effect.
---------------------------------------------------------------------------

    \41\ EADs currently have a 2-year validity period and this can 
cause cyclical fluctuations in renewal rates. The renewal receipts 
for FY 2018 were 62,026, which reflects the lower initial filings in 
FY 2016 (although receipt and adjudication dates routinely cross 
fiscal years, so this may include a portion of initial filings from 
2015 and 2017). It is noted that replacement filings are excluded 
from the figures, as they are not relevant to this rulemaking.
---------------------------------------------------------------------------

    Comments: A commenter stated that the proposals that USCIS should 
hire and train more adjudicators ignores Congress' mandate that USCIS 
benefits processing costs must be funded through user fees. The 
commenter stated that USCIS should not be compelled to arbitrarily 
adhere to a rigid and disruptive processing deadline for ``guaranteed'' 
30-day asylum EAD processing unless and until user-provided fee revenue 
is available to fully fund the needed dedicated agency personnel and 
resources.
    Response: While USCIS fees are set through rulemaking and hiring 
additional adjudicators would not ignore a Congressional mandate, USCIS 
appreciates the commenter's understanding of the constraints involved 
in resources and hiring.
Ombudsman Report
    Comments: Several commenters said USCIS failed to consider 
recommendations from the 2019 USCIS Ombudsman Report, which recommends 
that the agency take several steps to ensure timely adjudication of 
EADs, including augmenting staffing, implementing a public education 
campaign to encourage applicants to file I-765 renewal applications up 
to 180 days before the expiration of the current EAD, and establishing 
a uniform process to identify and expedite processing of EAD 
application resubmissions filed due to service error. Another commenter 
stated that the rule ignored the Ombudsman's recommendation of 
incorporating the Form I-765 into the agency's eProcessing procedures, 
which the commenter indicated would expedite the review process and 
improve review for purposes of fraud and national security concerns.
    Response: USCIS carefully considers the observations and 
recommendations provided by the USCIS Ombudsman and if it agrees with a 
recommendation, implements it to the extent practicable. The 
conclusions and recommendations referenced by commenters were the 
Ombudsman's recommendations for all EAD adjudications, and were not 
specific to the asylum-based applications and therefore not totally 
relevant to a 30-day processing timeframe. Nevertheless, as discussed 
elsewhere in response to comments, augmenting the staff dedicated to 
asylum-based EAD applications would not immediately and in all cases 
shorten adjudication timeframes, and would increase the cost-burden on 
the agency. With respect to implementing an education campaign, USCIS 
will update its public sources of information, such as the Policy 
Manual and website, provide updated information regarding the changes 
to expect relating to the promulgation of this rule, and continue to 
provide regular updates to processing times. With respect to 
establishing a uniform process to expedite resubmissions filed due to 
service error, USCIS has published guidance on its website \42\ for 
obtaining a corrected EAD if there was a government error in the 
issuance as well as guidance for requesting expedited adjudication.\43\
---------------------------------------------------------------------------

    \42\ USCIS, Employment Authorization Document (last updated Apr. 
5, 2018), https://www.uscis.gov/greencard/employment-authorization-document.
    \43\ USCIS, How to Make an Expedite Request (last updated May 
10, 2019), https://www.uscis.gov/forms/forms-information/how-make-expedite-request.
---------------------------------------------------------------------------

    USCIS is also working diligently to develop the IT infrastructure 
and systems needed for eProcessing, and acknowledges the benefits of 
eProcessing, especially with regard to efficiency and national 
security. This is a time and labor intensive endeavor, requiring the 
collaboration of developers and subject matter experts and others, as 
well as extensive testing and demos to ensure the new system and 
features function properly. USCIS is working and will continue to work 
towards full eProcessing across all benefit request types,\44\ but 
there is currently no estimate available for when the application for 
an EAD will be available for eProcessing.
---------------------------------------------------------------------------

    \44\ See Office of Management and Budget, Executive Office of 
the President, Electronic Processing of Immigration Benefit Requests 
(Fall 2019 Unified Agenda), https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201910&RIN=1615-AC20; USCIS, USCIS Accelerates 
Transition to Digital Immigration Processing (May 22, 2019), https://www.uscis.gov/news/news-releases/uscis-accelerates-transition-digital-immigration-processing-0.
---------------------------------------------------------------------------

Other Suggestions
    Comments: One commenter suggested providing each asylum applicant 
an option of temporary work permit that can be cancelled if any red 
flags are found during further screening of the individual applicant.
    Response: USCIS disagrees with commenter's suggestion, as the 
agency believes providing a temporary work permit at the time of 
initial filing invites fraud and abuse. A benefit that would be 
bestowed automatically simply upon filing provides no opportunity for 
vetting and encourages frivolous filings to obtain even a short-term 
benefit. Frivolous filings, in turn, exacerbate backlogs and cause 
greater delays in processing applications for those with meritorious 
claims.
    Comments: One commenter suggested increasing the validity of (c)(8) 
EADs from 2 years to 5.
    Response: Though DHS recognizes that increasing the validity period 
of an EAD may reduce the burden to adjudicate renewal EAD applications, 
the agency does not believe doing so would alleviate the burden the 
agency faces in adjudicating initial filings, which was the main goal 
of this rulemaking. Additionally, renewals of EADs for aliens with a 
pending asylum applications are not subject to the 30-day adjudication 
deadline.
    Comments: One commenter recommended creating a new document for 
those granted asylum that clearly states that the asylee is authorized 
to work in the United States without restrictions, which would 
eliminate the entire (a)(5) product line (for those granted asylum and 
authorized to work incident to status) and free up adjudicators to work 
on (c)(8)s.
    Response: This rule pertains to applicants for asylum, meaning 
those who have applied for asylum status but have not yet had their 
asylum application adjudicated on the merits. If an alien is granted 
asylum status, they are authorized to work incident to status, meaning 
that he/she no longer needs to apply for employment authorization but 
receives such authorization as an automatic benefit of that status. See 
8 CFR 274a.12(a)(5). Accordingly, the process contemplated by the 
commenter already exists and the agency still faces resource 
constraints.
    Comments: A commenter stated that, if DHS is not able to meet a 30-
, 60-, or even 90-day deadline in all cases, it could institute a 
tiered or alternative system of deadlines for cases that require 
additional security vetting. The commenter said a stop-time mechanism 
for cases that require additional vetting would be a feasible way to 
maintain a fixed processing deadline without sacrificing the agency's 
flexibility. A commenter stated that USCIS does not

[[Page 37524]]

explain why it did not consider the simple option of adding a stop-
clock for the small percentage of applications referred to the 
Background Check Unit (BCU) and Service Center Fraud Detection 
Operation (CFDO), akin to the stop-clock currently in place for 
applications that require Requests for Evidence (RFEs). Just as an RFE 
pauses the 30-day processing timeframe until additional documentation 
is received, a new stop clock for BCU and CFDO referrals could pause 
processing from the time of referral until additional information is 
received from BCU and/or CFDO.
    Response: While it is true that the 30-day adjudication timeframe 
may be paused and restarted in certain instances, according to certain 
regulations,\45\ pausing and restarting the adjudication timeframe may 
not be possible in all instances to accommodate routine background 
checks and fraud detection. The agency initially scans specifically for 
indicators of national security concerns and those concerns are vetted 
immediately without respect to the 30-day adjudication timeframe. The 
vetting process, when a concern is identified, can be lengthy and 
sometimes requires consultation with or referral to outside agencies 
which cannot be completed within the 30-day timeline. Additional 
vetting also occurs during adjudication, which may warrant 
investigative action or require additional information but USCIS 
disagrees that it can or should stop the adjudication timeframe to 
accommodate typical adjudicative procedures rather than removing the 
timeframe altogether, as this rule does. Introducing additional pause 
and restart mechanisms for routine processing actions would also add a 
new administrative burden for USCIS to track the pending time of a 
broader swath of cases.
---------------------------------------------------------------------------

    \45\ See 8 CFR 103.2(b)(10)(ii) and 8 CFR 208.7(a)(2).
---------------------------------------------------------------------------

D. Removal of 90-Day Filing Requirement

1. Necessity of Rule and DHS Rationale
    Approximately 10 commenters mentioned DHS's rationale for the 90-
day filing requirement.
    Comments: A couple of commenters agreed with the proposal to 
rescind the 90-day deadline for EAD renewals, stating that it is more 
efficient, more consistent with other regulations, and more fair to 
applicants to automatically extend an EAD when the alien files a 
renewal application prior to the current document's expiration. Another 
agreed that eliminating the 90-day renewal requirement would mitigate 
confusion and reduce pressure on those that have an EAD. Another 
commenter stated that the three pre-conditions in the AC21 \46\ rule 
for automatic extension eligibility will adequately ensure that renewal 
applications are not automatically granted to applicants whose asylum 
applications since have been denied.
---------------------------------------------------------------------------

    \46\ The preconditions are that the application is properly 
filed before the EAD's expiration date, based on the same category 
on their EAD and based on a class of aliens eligible to apply for an 
EAD notwithstanding expiration of the EAD. 8 CFR 274a.13(d)(1).
---------------------------------------------------------------------------

    Response: USCIS appreciates these comments in support of removing 
the 90-day renewal requirement.
    Comments: A commenter supported the rule change but urged DHS to 
set a timeframe for adjudicating renewals due to concerns about 
applicants not receiving their EAD renewal cards by the time the 
automatic extension ends.
    Response: USCIS respectfully disagrees that there is a need to set 
an adjudicative timeframe for adjudicating renewals. USCIS believes the 
ability to apply for renewal earlier, coupled with an automatic 
extension of 180 days provides adequate time for adjudication and poses 
minimal risk that an applicant will experience a lapse in employment 
authorization. In FY 2019, the average processing time for EAD 
classifications excluding the (c)(8) applications was 127 days and the 
median processing time was 100 days. While USCIS acknowledges cases may 
occasionally pend longer than 180 days due to unusual facts or 
circumstances or applicant-caused delays, the 180-day automatic 
extension has proven to avoid lapses in employment authorization for 
the majority of applicants. In FY 2017, 94.2 percent of applications 
were adjudicated within 180 days, in FY 2018, 83.4 percent, in FY 2019, 
81.5 percent, and as of February 29, 2020, 84 percent of non-(c)(8) 
applications were adjudicated within 180 days in FY 2020.

E. Statutory and Regulatory Requirements

1. Costs and Benefits (E.O. 12866 and 13563)
k. Costs Associated With Hiring Additional Immigration Officers
    Comments: Some commenters noted that the economic analysis did not 
attempt to take into account the costs and benefits of hiring 
additional USCIS officers to meet the 30-day timeframe. One stated that 
until cost-benefit analysis of additional hiring is done, and more 
detailed security protections are explained, this rule change should be 
viewed as arbitrary and capricious. Another commenter said USCIS' 
failure to estimate these costs is ``simply irrational'' and fails to 
satisfy the most basic cost-benefit obligations the agency must meet 
under the APA.
    An individual commenter said the rule argues that ``the cost of 
hiring and training employees to adjudicate EADs would be passed onto 
asylum seekers, in the form of lost wages and higher application fees. 
However, USCIS offers no direct evidence of these transferred costs. It 
merely points to an accounting statement by the Office of Management 
and Budget for 2017 to predict possible costs for 2020-2029.''
    Response: USCIS included an extensive and plainly sufficient 
analysis of the proposed rule. USCIS acknowledges that it does not 
conduct a quantitative cost-benefit assessment of the costs and 
benefits of hiring additional USCIS officers to meet the 30-day 
timeframe. But this is because, at bottom, 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 will be necessary 
in the future.
    In any case, the proposed rule did not state that hiring and 
training additional employees would result in lost wages for asylum 
seekers. With respect to application fees, the proposed rule stated, 
among other things, that providing the resources to meet this 
regulatory timeframe would require USCIS to use a significant amount of 
fees that are currently paid by other benefit requestors. DHS does not 
understand the remainder of the comment regarding an accounting 
statement by the Office of Management and Budget for 2017. The 
accounting statement in the proposed rule was prepared by DHS and is 
amply supported by the surrounding text.
    DHS believes USCIS requires the flexibility to devote its resources 
where they are needed. Further, even if and when the funds are 
available to hire additional staff and officers (which requires 
increases to USCIS' operational budget and therefore possible increases 
to immigration benefit fees), there is a significant lag time in the 
course of posting job announcements, selecting candidates, background 
investigations for selectees, onboarding, and training and mentoring 
before new hires are able to adjudicate. Throughout this time, backlogs 
build and resources continue to be diverted to support programs with 
processing timelines. While DHS recognizes that the staffing solution 
may be more long-term, the agency does

[[Page 37525]]

need an immediate solution, as resources continue to be strained. While 
USCIS strives to maintain the staffing necessary to timely process all 
benefit request types and continuously analyzes workload trends and 
production, simply hiring more people does not provide a short term fix 
and, even when new hires are working at full competency, shifting 
demands and priorities continuously present new challenges that are 
even more difficult to adjust to with a processing timeline in place. 
As noted in the proposed rule, hiring additional staff may not shorten 
adjudication timeframes in all cases 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.
l. Population and Effect of Rule on Processing Times
    Comments: Commenters questioned USCIS's choice to adopt the 2017 
level of I-765 applications as its forecast for the future number of 
applications. Commenters suggested that a trendline, or a range of 
estimates would be better than using one year's level as a default 
prediction.
    Response: In the NPRM, USCIS wrote that USCIS does not use a trend 
line to forecast future projected initial I-765 applications because 
various factors outside this rulemaking may result in either a decline 
or, conversely, a continued rise of applications received. See 84 FR at 
47162. For example, USCIS said that the number of initial I-765 
applications has some correlation with changes in applications for 
asylum and that the return to LIFO for processing affirmative asylum 
applications may also impact initial I-765 applications. While DHS 
agrees with the commenter that using one year's level as a default 
prediction is not ideal, USCIS notes again that many factors affect 
USCIS's ability to predict the future number of initial I-765 
applications. For example, Table 8 in this final rule shows that the 
number of initial I-765 receipts grew significantly from 2013 to 2017, 
held approximately constant in 2018 and declined in 2019. In addition, 
if finalized, the broader asylum applicant EAD rule may also affect the 
number of future initial I-765 applications. This illustrates that 
assuming a trend or range might not be as simple as the commenter 
suggests. USCIS believes that assuming a level of applications from a 
known year is a better approach than assuming an upward trendline, 
especially considering the decline in 2019.
    Comments: Multiple commenters questioned USCIS' reliance on the 
assumption that it would return to its adjudication rate from 2017, 
before the Rosario court order. Commenters stated that it is unlikely 
and unrealistic to expect that USCIS would return to the pre-Rosario 
scenario without a timeline to do so or staffing increases, and that in 
reality, delays and costs will be more significant than estimated. An 
advocacy group claimed that the pre-Rosario baseline fails to account 
for ``the historic asylum application backlog'' that has increased over 
the past 5 years, which according to DHS is one of the reasons cited 
for eliminating the 30-day deadline.
    One commenter explained that the improvement in processing times 
from 2015 to 2017 reflects the pending litigation and therefore using 
the FY 2017 processing numbers are inaccurate. This commenter said a 
more accurate baseline would be to look to the numbers for initial I-
765 processing from before the Rosario class action was filed, which 
show that in FY 2015, only 27.2 percent of initial filings were 
completed within 30 days, as compared to 36.3 percent in FY 2016 and 
52.4 percent in FY 2017.
    Another commenter said DHS should provide the following data needed 
to better judge the reasonableness of estimated processing times under 
the rule: Average processing times for all EADs (with the exception of 
those initial EADs filed by asylum applicants) and average processing 
times for renewals of EADs based on pending asylum applications.
    Response: Cost benefit analysis often involves making estimates of 
future outcomes (ex ante) based on the best information available to 
the agency at the time. USCIS believes FY 2017 provides a reasonable 
assessment of probable processing times under the adoption of this rule 
and reflects processing times that are sustainable and realistic, even 
though the future processing times cannot be predicted with precision 
and could vary due to any number of factors.
    As of the drafting of this final rule, USCIS sees no reason why the 
FY 2017 processing times are unrealistic and as such, should not be 
utilized as the expected processing times after this rule is finalized. 
This rule allows for increases in processing times when necessary to 
identify fraud and to address other unforeseen requirements. The rule 
takes into consideration the asylum application processing times during 
the pre-Rosario baseline and we respectfully disagree that the 
improvement in processing times from 2015 to 2017 was solely a 
consequence of pending litigation. USCIS consistently evaluates and 
shifts workloads and resources to meet changing circumstances, such as 
increased backlogs, and legislative and policy changes. The changes in 
processing times from 2015 to 2017 were likely driven by a number of 
factors. USCIS chose FY 2017 because it represents the latest year 
prior to the Rosario court order. While USCIS relies on 2017 processing 
times, we acknowledge that if the actual processing times are longer 
than assumed, then the cost of the rule would be higher than estimated. 
Conversely, if processing times are shorter than assumed, then the cost 
of the rule would be lower than estimated.
    USCIS also believes that average processing times for all EADs 
(with the exception of those initial EADs filed by asylum applicants) 
and average processing times for renewals of EADs based on pending 
asylum applications would not be demonstrative because there are about 
50 EAD eligibility categories that USCIS processes, with a wide range 
of descriptions and variations in terms of applicant type. For any 
number of reasons, the asylum category could diverge from a generalized 
processing rate.
    Comment: A commenter noted that the proposed rule fails to consider 
the significant impact on asylum applicants in defensive proceedings as 
much of the analysis in the NPRM focuses on affirmative asylum 
applicants only. As a result, by excluding defensive asylum EADs, the 
economic analysis fails to capture the full impacts. The commenter 
stated that DHS must provide further analysis germane to EAD 
applications from defensive asylum applicants. In addition, the 
commenter claims that the removal of the 30-day deadline will create 
additional backlogs in immigration courts and create investigatory 
burdens for the Internal Revenue Service (IRS) and Department of Labor 
(DOL).
    Response: The analysis presented in the NPRM and updated in this 
final rule reflects data and information that includes receipts from 
both affirmative and defensive pending asylum applicants. See 84 FR at 
47161. Although Table 7--Total Annual Form I-589 Receipts Received from 
Affirmative Asylum Applicants--addresses only affirmative cases, all 
parts of the analysis regarding I-765 receipts include both affirmative 
and defensive applicants because USCIS adjudicates all I-765 
applications. Hence, the impacts do take into consideration defensive 
asylum EADs.

[[Page 37526]]

    As it relates to the concerns regarding investigatory burdens, 
USCIS does not believe it is appropriate to assume causation between 
this rule and such stated impacts. The fact that tax losses may occur 
does not automatically map to more IRS investigations, just as the 
possibility that the timing of some EADs may be impacted does not 
causally map to increases in unauthorized work, wage theft, and 
dangerous work practices.
m. Wage Bases for Labor Earnings
    Comments: Several commenters expressed concern with the wage 
benchmarks USCIS utilized in its analysis. One commenter claimed that 
the wide range of potential lost compensation ($255.9 million to $774.8 
million) was excessively wide and that it is reasonable to assume that 
EAD applicants will be paid the average wage in the economy, and 
implied that USCIS did not take into account demographic and 
socioeconomic characteristics.
    A couple of commenters stated that the rule's lower-bound estimate 
of lost earnings is an understatement because it assumes an $8.25 
minimum wage. The commenters stated that 28 States plus the District of 
Columbia currently have minimum wages exceeding that $8.25 minimum.
    Another commenter stated that calculating lost compensation by 
multiplying a constant wage rate by the projected length of the delay 
fails to account for the trajectory of future earnings. The commenter 
said data shows that asylum seekers' wage rates do not remain constant 
while they work, but rather rise the longer they have been in the work 
force. The commenter also challenged DHS's treatment of the future 
earnings of pending asylum applicants as unrelated to the length of 
delay before they have work authorization. The commenter cited a study 
by the Immigration Policy Lab at Stanford University that found a 
seven-month delay in work authorization for German asylum-seekers 
dragged down their economic outcomes for a decade after.
    A couple of commenters challenged DHS's assertion that EAD holders 
``would not have been in the labor force long and would thus not be 
expected to earn relatively high wages.'' The commenters cited the 
salaries of participants in the Upwardly Global program, specifying 
that asylum seekers who have completed the program earn an average of 
$54,875 annually, significantly higher than the national annual mean 
wage of $51,960, and several program alumni earned six-figure salaries. 
However, another commenter commended the assumptions regarding the 
lower and upper bounds on asylee wage rates (minimum wage and national 
wage, respectively), stating that, based on the New Immigrant Survey 
data, they are reliable.
    Response: USCIS recognizes that the wage bounds relied upon 
generate a wide range of potential lost compensation. However, data are 
not directly available on the earnings of asylum seekers and, faced 
with uncertainty, DHS made reasonable estimates of the bounds.
    In regard to the prevailing minimum wage, USCIS frequently relies 
on such a lower wage for recent or new labor force entrants in its 
rulemakings. We agree with commenters who note that some states and 
localities have adopted their own minimum wage. For this reason, USCIS 
chose to use an estimate of the prevailing minimum wage, as opposed to 
the base federal minimum wage, as a lower bound estimate. In addition, 
USCIS applied a multiplier of 1.46 to the $8.25 prevailing minimum wage 
to adjust for benefits. Therefore, the analysis used a full 
compensation cost of $12.05 ($8.25 x 1.46) to estimate the lower bound 
impacts, not the $8.25 base prevailing minimum wage. Again, this 
results in a lower bound wage that is higher than the actual prevailing 
minimum wage, although it is unlikely that all positions would provide 
such benefits.
    Regarding the upper bound wage, USCIS does not have demographic or 
socioeconomic characteristics about asylum applicants and thus uses the 
national average wage as an upper bound estimate. USCIS agrees it is 
possible for some of the workers impacted to earn wages higher than the 
upper bound estimate, the national average across all occupations, just 
as it is plausible that some earn less than the burdened prevailing 
minimum wage. The lower and upper bounds simply represent estimates of 
the range for this population's average wage.
    Regarding the rule's effect on earnings over time, USCIS agrees 
that earnings generally rise over time, and therefore that the earnings 
of EAD holders could be larger at a point in the future. In the NPRM, 
USCIS estimates that this rule will delay applicants' receipt of an EAD 
for an average of 31 calendar days, or 22 working days, if processing 
times returned to those achieved in FY 2017.\47\ This is much less than 
the seven months the commenter cited from the study. However, USCIS 
acknowledges that a 31-day delay caused by the rule could theoretically 
affect the stream of applicants' future earnings but believes it is too 
speculative to estimate.
---------------------------------------------------------------------------

    \47\ Table 10 at 84 FR 47164. 119,088 applications completed 
after 30 days for a total of 3,651,326 lost calendar days and 
2,655,429 working days. 3,651,326/119,088 = an average of 30.7 
calendar days delayed and 2,655,429/119,088 = an average of 22.3 
working days delayed.
---------------------------------------------------------------------------

n. Lost Wages and Benefits
    Comments: Numerous commenters stated that asylum seekers would lose 
wages and benefits as a result of delayed entry into the U.S. labor 
force, which will cause an outsized, devastating amount of harm to this 
already-vulnerable community. Many commenters reasoned that a lack of 
income would lead to not being able to afford food, housing, emergency 
services, and other benefits and assistances.
    Many commenters cautioned that the rule change would cause 
significant hardship to applicants and their families, including 
destabilizing the financial and health situation of their children, 
spouses, parents, and other family members. One commenter cited reports 
indicating that a 6-month gap in employment contributes to 
``microeconomic scarring, or the damage a period of unemployment 
inflicts on individuals or household's [sic] future economic health 
even after the spell of joblessness ends.''
    Response: USCIS notes that asylum seekers statutorily cannot 
receive employment authorization prior to 180 days after filing an 
asylum application, but acknowledges that asylum applications that 
require additional processing time will delay applicants' entry into 
the U.S. labor force. USCIS does not anticipate the adoption of the 
rule to result in processing times that exceed the FY 2017 pre-Rosario 
processing times. This final rule allows for increases in processing 
times when necessary to reduce fraud and to address other unforeseen 
requirements, and variations in processing could occur due to 
unforeseen events and circumstances. In the NPRM, USCIS estimated an 
average delay of 31 calendar days if processing times returned to those 
achieved in FY 2017. As described in the NPRM, USCIS acknowledges the 
distributional impacts during this delay onto the applicant's support 
network. USCIS assumes the longer an asylum applicant's EAD is delayed, 
the longer the applicant's support network is providing assistance to 
the applicant.
o. Impact on Support Network
    Comments: Approximately 250 commenters commented on the rule's 
impact on the support networks of asylum-seekers. Many commenters said 
the proposed ``delayed'' issuance of

[[Page 37527]]

EADs would over-burden organizations that provide financial, housing, 
legal, or other forms of assistance to asylum applicants. Multiple 
commenters contended that the rule would render asylum applicants 
unable to work and force them to become a public charge to welfare 
programs. These commenters stated that this rule is in direct contrast 
to the overall initiative of the administration and will create a 
financial burden for the United States.
    As it relates specifically to the costs, a commenter stated that 
the rule explicitly refuses to factor into its cost analysis 
``distributional impacts for those in an applicant's support network.'' 
Similarly, a commenter said USCIS failed to fully consider the costs of 
delayed EAD adjudication to an asylum seeker's family and makes the 
statement that its own workload priorities outweigh these financial 
strains. Another commenter also stated that USCIS miscalculated the 
cost to support networks, citing data on community groups' limited 
budgets and resources.
    Another commenter disagreed with USCIS' cost analysis and provided 
an alternative suggestion of measurement. The commenter calculated that 
the cost of providing for an individual is roughly equivalent to the 
prevailing wage, which would mean the actual cost of the proposed rule 
only to applicants' support networks would be at least twice that 
calculated by USCIS.
    Response: USCIS notes this rule does not directly regulate private 
support networks or any state program. How the states or private 
organizations allocate their resources is a choice by the state or 
organization and is not compelled by this rule. USCIS notes that asylum 
seekers statutorily cannot receive employment authorization prior to 
180 days after filing an asylum application but acknowledges that 
asylum applications that require additional processing time may delay 
applicants' entrance into the U.S. labor force. This final rule allows 
for increases in processing times when necessary to identify fraud and 
to address other unforeseen requirements, and variations in processing 
could occur due to unforeseen events and circumstances. In the NPRM, 
USCIS estimated an average delay of 31 calendar days if processing 
times return to those achieved in FY 2017. In the NPRM, USCIS 
acknowledged ``the longer an asylum applicant's EAD is delayed, the 
longer the applicant's support network is providing assistance to the 
applicant.'' See 84 FR at 47165. The impacted social networks could 
include, but are not limited to, family members and friends, relatives, 
non-profit providers, nongovernmental organizations (NGOs), religious 
and community based affiliations, and charities. In addition, there 
could be impacts to state and local governments as well in terms of 
both their burden and taxes.
    In the NPRM DHS requested comment on data or sources that 
demonstrate the amount or level of assistance provided to asylum 
applicants who have pending EAD applications. See 84 FR at 47165. One 
commenter specifically suggested that the cost of the proposed rule to 
applicants' support network is roughly equivalent to the prevailing 
wage. USCIS agrees that the immediate indirect impact of this rule to 
an applicant's support network is likely not significantly more than 
the wages and benefits the applicant would have earned without this 
rule.
p. Costs Related to Socioeconomic Factors and Impacts
    Comments: Numerous commenters provided feedback concerning the 
impacts of the proposed rule involving loss of income to individuals 
linked to groups in terms of various socioeconomic factors. For 
example, multiple commenters warned that asylum seekers who are not 
authorized to work would have problems obtaining healthcare and medical 
treatment. Multiple commenters said that many asylum seekers will be 
without healthcare due to the lack of employer provided insurance and 
thus would be far more likely to skip the preventative care that keeps 
them healthy which will increase contagious diseases, decrease 
vaccinations, and overall negatively impact national public health. 
Another commenter said state-only Medicaid would likely be the only 
affordable health insurance option for asylum applicants who do not 
have an EAD; however, applicants will most likely not apply for 
Medicaid out of concern that receipt of any form of public assistance 
will harm their ability to adjust status under the DHS Public Charge 
Rule.
    Several commenters said the rule would increase homelessness in 
communities. One discussed research on the already limited housing 
available for asylum applicants that will be negatively impacted by 
this rule, citing sources. A few commenters, citing research studies 
warned of the adverse short- and long-term consequences associated with 
homelessness, including chronic physical and mental health, behavioral 
problems, learning and cognition, academic achievement, and lifelong 
adult problems.
    Numerous commenters asserted that asylum seekers without an EAD due 
to the rule would have difficulty obtaining important documents, 
including a driver's license, state identification, and social security 
number. Others said obtaining a social security card is often essential 
to get into job training programs, to enroll in college, and to take 
many other steps towards integration into a community. Some commenters 
warned that not having a U.S. government-issued identification document 
can further limit an applicant's access to transportation, banking, 
education, heating and electricity, many government facilities and 
school grounds, as well as hinder the ability to get married.
    Multiple commenters warned that asylum seekers who are not 
authorized to work and therefore lack sufficient funds as a result of 
this rule would have impeded access to competent legal services and 
counsel. Several commenters cited studies showing that immigrants who 
are represented by legal counsel are much more likely to win their 
cases than those appearing in immigration court without an attorney.
    A few commenters reasoned that asylum applicants who do find pro 
bono or low cost representation, are unable, without work 
authorization, to pay for other costs inherent in immigration cases, 
including transportation to get to and from meetings with their 
attorney or even to court appearances.
    A number of submissions cautioned that the above impacts would 
especially be serious for vulnerable groups, such as children, and that 
the rule stands to increase vulnerability to labor abuse, exploitation, 
human trafficking, and violence. In addition, some claimed that 
particular groups, including women, children, and lesbian, gay, 
bisexual, transgender, queer (LGBTQ) and HIV-positive asylum seekers, 
would face negative consequences.
    Response: USCIS endeavors to process all benefits requests as 
quickly as possible and this rulemaking does not change the eligibility 
requirements or process by which asylum seekers obtain employment 
authorization or asylum status. This rulemaking does not aim to create 
undue hardships, including added stress or anxiety, on applicants for 
employment authorization or to cause unnecessary delays in processing 
applications. Regardless of the underlying basis for applying for 
employment authorization, all applicants filing initially are subject 
to some period of processing time that may delay their ability to 
obtain employment or other services.
    Individual state governments determine the documentary requirements 
for state-issued

[[Page 37528]]

identifications. States may choose to rely on documents issued by 
USCIS, but these requirements are outside USCIS' purview. This 
rulemaking does not change the eligibility requirements or process by 
which asylum seekers obtain employment authorization. USCIS appreciates 
the concerns raised over impacts to particular groups. Furthermore, 
USCIS does not question the commenters' claims that asylum seeking in 
the U.S. tends to involve groups of persons with particular 
socioeconomic characteristics and situations. However, USCIS is unable 
to quantify the impacts to them as USCIS does not differentiate between 
the particular groups in adjudicating the EAD applications. As we have 
described, the rule only stands to possibly impact the timing under 
which some EADs could be approved.
q. Impacts to Companies and Employers
    Comments: About 50 commenters focused on the impacts presented in 
the NPRM in terms of the effects on businesses and companies. Multiple 
commenters asserted that this rule would negatively impact United 
States employers and corporations.
    Some commenters stated that, under the rule, companies that would 
otherwise employ asylum seekers will either have insufficient access to 
labor or bear the costs of finding alternative labor. Several 
commenters said the jobs that asylum seekers fill will be extremely 
hard to replace due to their skills, and because many Americans may not 
want to do their jobs.
    Another commenter cited unemployment data and discussed a labor 
shortage, arguing that employers will be adversely affected by delaying 
asylum applicants' lawful labor force participation. Also addressing a 
labor shortage, another commenter cited that there were seven million 
unfilled U.S. job openings in 2019 and the proposal will block these 
from being filled. Multiple commenters discussed the significant labor 
shortage this rule would create for industries such as health care, 
agriculture, manufacturing, construction, and technology, citing 
research. Another cited the percentage of the state's workforce made up 
of immigrants, remarking that immigrants are a key solution to the 
state's workforce challenges due to the retiring baby boomer 
population.
    Citing several sources, a couple of commenters described the 
significant financial loss to businesses that would absorb the cost to 
find and replace asylum seekers jobs. A few commenters stated that 
USCIS does not adequately analyze the costs to employers in the rule 
and should more accurately quantify the impacts of hiring new 
employees.
    Response: USCIS agrees there is a possibility a portion of the 
impacts of this rule could be borne by companies that would have hired 
the asylum applicants. USCIS has also reviewed the Bureau of Labor 
Statistics (BLS) data and other references cited by the commenters, and 
does not necessarily dispute the figures and statistics referenced for 
2019. USCIS also notes that, as of November 2019, BLS data also showed 
approximately 4.3 million workers are considered to be ``part time for 
economic reasons,'' such as slack work or unfavorable business 
conditions, inability to find full-time work, or seasonal declines in 
demand.\48\ USCIS recognizes that when unemployment rates are low, 
providing EADs to pending asylum applicants potentially fills an 
economic need. However, even during those times USCIS must first be 
sufficiently assured of applicant eligibility and ensure all background 
and security checks are completed.
---------------------------------------------------------------------------

    \48\ Bureau of Labor Statistics, Employment Situation News 
Release--November 2019, Table A-8 Employed persons by class of 
worker and part-time status, February 21, 2020. Available at https://www.bls.gov/news.release/archives/empsit_12062019.pdf.
---------------------------------------------------------------------------

    Although the rule would possibly impact the timing that some asylum 
applicants might experience in entering the labor force, USCIS has no 
reason, as of the drafting of this final rule, to anticipate that 
processing times will be vastly different (on average) than those in FY 
2017 and reiterates there should not be a significant increase, barring 
unforeseen variations and circumstances. In the NPRM, USCIS estimated 
an average delay of 31 calendar days if processing times returned to 
those achieved in FY 2017. The rule should allow sufficient time to 
address national security and fraud concerns, and to maintain 
technological advances in document production and identity verification 
without having to add any resources.
    The rule has taken into consideration that a subset of asylum 
applicants' opportunity to participate in the labor market could be 
delayed if their application requires additional time to process. The 
analysis has also acknowledged that for the companies who are unable to 
substitute the labor that would have been provided by the asylum 
applicants, they could potentially experience a reduction in profit.
    Comments: Some commenters said the rule would force the companies 
to become less competitive by shrinking the ability to recruit a 
diverse and skilled workforce. Another commenter cited research, saying 
that USCIS failed to consider that asylum seekers bring a variety of 
professional experience to their work that cannot be replaced by a 
native workforce.
    Another said the rule would make it more difficult for it to hire a 
diverse and talented workforce to meet the needs of individuals with 
psychiatric disabilities and require additional expenditures to recruit 
otherwise authorized employees.
    Response: USCIS has reviewed the sources and figures presented in 
the comments, but does not see any compelling reason to assert that 
this rule, which could affect the timing under which some EADs are 
obtained by aliens with a pending asylum application, would hamper 
companies from achieving a diverse and talented workforce.
    Comments: Some commenters described the spending power of 
immigrants in each state and the negative impact this rule would have 
on private profits, citing research and figures. Another, citing 
research, stated that asylum workers specifically fill in gaps that 
make businesses more productive and stimulate industries through 
entrepreneurship. Another commenter cited the NPRM's figure that the 
rule will result in a loss of $775 million annually, which will affect 
business profits.
    Response: USCIS recognizes the research and literature concerning 
immigrants being involved in innovation and entrepreneurship. However, 
USCIS does not believe that this rule will reduce innovation and 
entrepreneurial activity, as it only stands to possibly impact the 
timing under which some asylum seekers are able to obtain an EAD. In 
the NPRM, USCIS estimated an average delay of 31 calendar days if 
processing times return to those achieved in FY 2017.
    USCIS acknowledges that if companies cannot find reasonable 
substitutes for the position the asylum applicant would have filled, 
this rule will result in lost productivity and profits to companies.
    Comments: A commenter commented that the rule would force asylum 
applicants to work illegally, which in turn could lower labor treatment 
for the United States labor force.
    Response: The rule only stands to possibly impact the timing in 
which an asylum applicant can obtain an EAD, where asylum applicants 
are only eligible to receive employment authorization after their 
asylum application has been pending 180 days.

[[Page 37529]]

Moreover, we see no reason at present that there will be an increase in 
average EAD processing times, beyond what was occurring pre-Rosario, 
although some EADs may take longer than average to adjudicate.
    Comment: Another commenter noted that because DHS has said the rule 
would have no effect on wages, it implies that in the cases where 
businesses are able to find replacement labor for the position the 
asylum applicant would have filled, they would be shifting workers from 
elsewhere in the labor force rather than inducing people to shift away 
from leisure. The commenter said that means the rule is expected to 
shrink real output and that total lost wages therefore approximately 
represent the total economic cost of the rule, and not merely 
transfers.
    Response: USCIS does not agree that under the scenario where 
businesses are able to find replacement workers, this rule would shrink 
real output. It is plausible that a currently unemployed (or 
underemployed) worker could fill a job that would have been filled by 
an asylum seeker without an increase in wages for that job. USCIS 
acknowledges that in economic theory, wage rates and income are 
economic variables that individuals consider when choosing between 
leisure and labor, and that changes in wage rates can either decrease 
or increase hours of work. This rule will have a short-term impact on 
labor availability for a relatively small population. The NPRM 
estimated that this rule would delay per year approximately 120,000 
asylum applicants' entrance into the labor force by, on average, 31 
calendar days. See 84 FR at 47164. As discussed later in this document 
in the ``Labor Market Overview'' section, the U.S. labor force as of 
November 2019, is approximately 164 million workers. While DHS does not 
have information about the industries in which asylum applicants work, 
DHS notes that applicants are not restricted to a certain industry and 
therefore these short-term delays to the relatively few number of 
workers are not concentrated in a single location or industry. Given 
the short-term nature and relatively small number of laborers 
disrupted, DHS maintains that the lost wages to asylum applicants is a 
transfer from asylum applicants to other workers when companies are 
able to find reasonable labor substitutes for the position the asylum 
applicant would have filled. DHS acknowledges that there likely are, 
however, other unquantified costs under this scenario, such as overtime 
pay or opportunity costs.
r. Tax Impacts
    Comments: Many commenters said this rule would negatively affect 
tax revenue, with many citing USCIS projected losses. Commenters, 
including individuals, a few advocacy groups, and a professional 
association, raised concerns regarding the rule's impact on tax losses, 
stating that these losses will negatively impact government programs 
and the economy. Multiple commenters, including a federal elected 
official and a few advocacy groups, discussed the loss of tax dollars 
and its impact on Medicare and social security. An advocacy group said 
this rule would contribute to the depletion of streets, schools, and 
healthier citizens through tax dollar loss.
    A commenter stated that, while estimating the lost tax revenue 
based on the lost earnings estimate, the proposed rule notes, but does 
not try to quantify, the significant additional lost state income tax 
revenues. This commenter went on to say that rule does not mention that 
asylum seekers' earnings translate into lower spending on rent, food, 
and consumer goods, with the corresponding lost profits and tax 
revenues that those expenditures would generate. Similarly, another 
commenter said that USCIS miscalculates tax losses by only using 
employment taxes, while it should be using federal, state, and local 
income taxes.
    Others said the rule does not account for the cost of losing tax 
revenue to local governments, which they expect to be significant. 
Multiple commenters, citing studies, estimated the loss in tax revenue 
for different individual states as a result of the proposed rule. 
Another projected that their state would suffer an estimated loss of 
$1.3 to 4 million dollars on top of lost federal tax dollars if the 
proposed rule was implemented and requested that USCIS withdraw the 
rule change. Another said the rule would force the applicants to work 
``under the table,'' thus negatively affecting the economy by violating 
tax, insurance, and employment laws.
    Response: USCIS appreciates the concerns of commenters and the 
acknowledgement of the potential projected tax loss stated in the rule. 
USCIS agrees with commenters that in circumstances in which a company 
cannot transfer additional work onto current employees and cannot hire 
replacement labor for the position the asylum applicant would have 
filled there would be an impact to state and local tax collection. The 
NPRM stated ``there may also be state and local income tax losses that 
would vary according to the jurisdiction.'' See 84 FR at 47150. USCIS 
notes the tax rates of the states vary widely, and many states impose 
no income tax at all.\49\ It is also difficult to quantify income tax 
losses because individual tax situations vary widely. The NPRM noted 
that more than 44 percent of Americans pay no federal income tax. See 
47 FR at 47150. Although USCIS is unable to quantify potential lost 
income taxes, USCIS has provided a quantified estimate of lost 
employment taxes. We were able to estimate potential lost employment 
taxes since there is a uniform national rate (6.2 percent social 
security and 1.45 percent Medicare for both the employee and employer, 
for a total of 15.3 percent tax rate) for certain employment taxes. See 
84 FR at 47150. USCIS recognizes that this quantified estimate is not 
representative of all potential tax losses by federal, state, and local 
governments and we made no claims this quantified estimate included all 
tax losses. We continue to acknowledge the potential for additional 
federal, state and local government tax loss in the scenario where a 
company cannot transfer additional work onto current employees and 
cannot hire replacement labor for the position the asylum applicant 
would have filled.
---------------------------------------------------------------------------

    \49\ See generally Turbotax, `States with the Highest and Lowest 
Taxes,'' https://turbotax.intuit.com/tax-tips/fun-facts/states-with-the-highest-and-lowest-taxes/L6HPAVqSF (last visited Feb. 24, 2020).
---------------------------------------------------------------------------

s. Small Entity Impacts
    Comments: A few commenters discussed the rule's impact on small 
entities. Some said the proposed rule would negatively impact small 
businesses and make it difficult for them to find workers. Another 
commenter, citing research, said immigrants represent 25 percent of 
entrepreneurs, arguing that this rule would disproportionality and 
negatively affect small businesses. Another said small town economic 
development is also hindered because family members who host asylum 
seekers awaiting EADs must expend material support during this time of 
limbo instead of starting or continuing small businesses.
    Response: This rule may result in lost compensation for some 
initial applicants whose EAD processing is delayed beyond the 30-day 
regulatory timeframe. However, the rule does not directly regulate 
employers. In the NPRM USCIS stated that 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

[[Page 37530]]

asylum applicants as a proxy for businesses' cost for lost 
productivity. See 84 FR at 47156.
    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 rule. This 
rule will directly regulate pending asylum applicants, or individuals, 
applying for work authorization. DHS cannot reliably estimate how many 
small entities may be indirectly impacted as a result of this rule, but 
DHS believes the number of small entities directly regulated by this 
rule is zero.
t. Benefits
    Comments: Approximately a dozen submissions provided comments on 
the NPRM's discussion of benefits. A few stated that the lack of 
quantitative benefits does not support DHS's rationale for the rule. 
Some questioned whether the qualitative benefits that DHS presents were 
adequately weighed against the stated millions of dollars of revenue 
loss and lost wages. One commenter said the discussion of benefits 
lacks details regarding how DHS would be able to achieve the rule's 
goals. Another stated that the financial costs to individuals, 
businesses, and the federal government in the form of lost taxes far 
outweigh the financial benefits to USCIS. This commenter also said it 
is also ``highly inappropriate'' for USCIS to include the end of 
litigation as a benefit.
    One commenter stated that USCIS failed to quantify benefits 
correctly, questioning why monetary benefits of not having to hiring 
additional workers is not described or estimated. This commenter also 
questioned why there was no evidence provided to suggest that removing 
adjudication standards would speed up the adjudication process. Another 
commenter stated that the stated benefits of the rule are achievable 
with a mere extension of the deadline and DHS has provided no evidence 
to the contrary.
    Response: By eliminating the 30-day provision, DHS stands to 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 and predictability of adjudication 
times. While we believe we have discussed the benefits appropriately, 
it is not possible to monetize them.
2. Other Statutory and Regulatory Requirements
    Comments: Several commenters addressed the broad statutory and 
regulatory requirements. One commenter noted the lack of analysis under 
Executive Order 13771, ``Reducing Regulation and Controlling Regulatory 
Costs,'' which states that any regulation must result in a net cost of 
$0 or be paid for by eliminating other regulations. Another commenter 
said this rule violates Executive Order 13771 because it has estimated 
costs between $295 and $893 million dollars to the US economy (plus 
additional tax revenue loss and uncalculated costs), with no 
quantitative economic benefits estimated. The commenter said no 
offsetting regulations were identified nor were subsequent offsetting 
costs estimated.
    Multiple commenters said that this rule does not contain an 
adequate analysis of federalism concerns or the proposal's fiscal 
impact. The commenters stated that USCIS did not analyze the harms to 
states' programs and a substantial loss in revenue. Further, the 
commenters stated that USCIS did not provide analysis required under 
the Unfunded Mandates Reform Act that would require it to fully 
consider reasonable alternatives to the rule.
    Response: This rule has been designated a ``significant regulatory 
action'' that is economically significant regulatory under section 
3(f)(1) of Executive Order 12866. Accordingly, the rule has been 
reviewed by the Office of Management and Budget. This rule is a 
regulatory action under Executive Order 13771. DHS is not required by 
law to include in this rulemaking further discussion regarding 
Executive Order 13771, such as discussions regarding offsets, but DHS 
intends to continue to comply with the Executive Order.
    DHS did consider federalism concerns and determined that the rule 
would not have a substantial direct effect on the states, on the 
relationship between the Federal Government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government, as it only removes an adjudicatory timeframe that is within 
the purview and authority of USCIS and does not directly affect states.
    With respect to the Unfunded Mandates Reform Act, the proposed rule 
and this final rule each explain DHS's position with respect to that 
Act. In addition, contrary to the commenters' position, the 
alternatives analysis provisions of that Act do not apply to rules, 
such as this one, that do not contain a covered Federal mandate. See 2 
U.S.C. 1532(a), 1535(a). DHS nonetheless included an alternatives 
analysis in the regulatory analysis portion of the proposed rule, see 
84 FR at 47166 et seq., and this final rule, see infra.

F. Out of Scope

1. Comments on the Broader Asylum EAD NPRM
    Comments: Approximately 10 submissions provided comments on the 
broader Asylum EAD proposed rule. See 84 FR 62374 (Nov. 14, 2019). A 
commenter said evaluation of the government's arguments is 
``essentially impossible'' in light of their apparent inconsistency 
with the anticipated ``Broader EAD NPRM'' called for by a 2019 
presidential memorandum. The commenter said USCIS only briefly notes 
that the rule's impact could be overstated if, as directed by the 
President, the Broader EAD NPRM is implemented. The commenter stated 
that USCIS simultaneously argues that the agency needs flexibility to 
handle increases in EAD applications, which would be false if, under 
the Broader EAD NPRM, most applicants became ineligible for EADs. The 
commenter concluded that USCIS must consider the two issues--EAD 
eligibility and processing timelines--jointly to determine accurately 
the costs and impact of its future EAD regime. Since the proposed rule 
is predicated on a situation that the agency intends to obviate by 
other policy changes, the commenter said its stated reasoning is 
irrational and fails to satisfy the APA.
    Response: The two rules are intended to address different problems 
and are therefore the subject of separate proceedings. Although the 
broader asylum rule has been proposed, it is not yet final, and may not 
be finalized as proposed. USCIS recognizes that this rule and the 
proposed broader asylum-EAD rule could have some interaction, and to 
the extent that there is interaction or overlap, DHS will address such 
concerns if it finalizes the broader rule. USCIS disagrees with the 
comment claim based on a reduction of EADs under the broad rule because 
of increased ineligibility. USCIS would still receive many EAD filings, 
although it is possible that more applications may not be approved due 
to the additional and/or modified eligibility criteria proposed. In 
reality, because of the added criteria under the broader

[[Page 37531]]

proposed rule, adjudication may become more complex.
2. Other Out of Scope Comments
    There were just over 600 comments that we have reviewed and 
determined are out of scope regrading this rule. These submissions can 
be bracketed generally as: (i) General requests for reform to the 
immigration system (a few of the comments specifically referred to 
immigration law; USCIS notes that statutory changes are outside of 
USCIS' authority. Other changes, such as specific regulatory changes 
not pertaining to the issues addressed by this rulemaking, would be 
outside the scope of this rulemaking); (ii) general support for 
President Trump; (iii) opinions on building a wall on the Southern 
border and securing American borders; (iv) opposition to illegal 
immigration and all forms of immigration; (v) support only for legal 
immigration; and (vi) suggestions that the government enforce 
immigration laws.

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. Executive Order 13771 (``Reducing Regulation and 
Controlling Regulatory Costs'') directs agencies to reduce regulation 
and control regulatory costs and provides that ``for every one new 
regulation issued, at least two prior regulations be identified for 
elimination, and that the cost of planned regulations be prudently 
managed and controlled through a budgeting process.''
    This rule has been designated as a ``significant regulatory 
action'' that is economically significant, under section 3(f)(1) of 
Executive Order 12866. Accordingly, the Office of Management and Budget 
(OMB) has reviewed this regulation. This final rule is considered an 
E.O. 13771 regulatory action.
1. Summary
    DHS notes that the estimates from the NPRM regarding unemployment, 
number of asylum applicants per year, and USCIS processing are not 
currently applicable as COVID-19 has had a dramatic impact on all 
three. DHS offers this analysis as a glimpse of the potential impacts 
of the rule, but the analysis relies on assumptions related to a pre-
COVID economy. While future economic conditions are currently too 
difficult to predict with any certainty, DHS notes that a higher 
unemployment rate may result in lower costs of this rule as replacing 
pending asylum applicant workers would most likely be easier to do. 
Consequently, as unemployment is high, this rule is less likely to 
result in a loss of productivity on behalf of companies unable to 
replace forgone labor.
    This rule removes the timeline to adjudicate initial EAD 
applications for pending asylum applicants within 30 days and is 
enacting the proposal without change. 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 dedicate increased resources to 
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 to adjudicate asylum 
EAD applications with the current regulatory-imposed timeframe 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 recruit, vet, onboard and train 
new employees; and, (2) for certain applications, additional time is 
needed to fully vet an applicant, regardless of staffing levels. 
Further, simply hiring more officers is not always feasible due to 
budgetary constraints and the fact that USCIS conducts notice and 
comment rulemaking to raise fees and increase revenue for such hiring 
actions.
    There is currently no fee for asylum applications or the 
corresponding initial EAD applications, and the cost to the agency for 
adjudication is covered by fees paid by other benefit requesters. As a 
primary goal, USCIS seeks to adequately vet applicants and adjudicate 
applications as quickly and efficiently as possible. USCIS acknowledges 
this 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. While we 
have added some more recent data and information, pursuant to public 
comments, the costs are benchmarked to 2017, in keeping with the NPRM. 
This baseline reflects the best assessment of the way the world would 
look absent this action. In the NPRM, USCIS assumed that in the absence 
of this rule the baseline amount of time that USCIS would take to 
adjudicate all applications would be 30 days. USCIS also assumes that 
upon this rule going into effect, adjudications will align with USCIS 
processing times achieved in FY 2017 (before the Rosario v. USCIS court 
order). This is our best estimate of what will occur when this rule 
becomes effective. USCIS believes the FY 2017 timeframes are 
sustainable and USCIS expects to meet these timeframes. Therefore, 
USCIS analyzed 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.
    USCIS notes that in FY 2018, 80.3 percent of applications were 
processed within 30 days and 97.5 percent were processed within 60 
days. In FY 2019, the figures were 96.9 percent and 99.2 percent, 
respectively. In the analysis of impacts of this rule, USCIS assumed 
100 percent of adjudications happened within 30 days.\50\ However, 
because actual adjudications in FYs 2018 and 2019 within the 30-day 
timeframe are slightly less than the 100 percent analyzed, USCIS has 
over-estimated the impacts of this rule with respect to this variable 
when less than 100 percent of adjudications happen within 30 days. It 
is noted that the reliance on the 100 percent rate slightly overstates 
the costs.
---------------------------------------------------------------------------

    \50\ The information regarding the processing of these 
applications was provided by USCIS Office of Performance and Quality 
(OPQ).
---------------------------------------------------------------------------

    The impacts of this rule may include both distributional effects 
(which are

[[Page 37532]]

transfers) and costs.\51\ The distributional impacts fall on the asylum 
applicants who would be delayed in entering the U.S. labor force. The 
distributional impacts (transfers) come 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 may 
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 may incur a cost, as they could lose 
productivity and potential profits the asylum applicant would have 
provided had the asylum applicant been in the labor force earlier.\52\ 
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.
---------------------------------------------------------------------------

    \51\ 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
    \52\ The analysis accounts for delayed entry into the labor 
force and does not account for the potential circumstance under 
which this rule may completely foreclose an alien's entry into the 
labor force. Such a possible circumstance could occur if USCIS 
ultimately denies an EAD application that was pending past 30 days 
due to this rule, solely because the underlying asylum application 
had been denied during the pendency of the EAD application. In such 
a scenario, there would be additional costs and transfer effects due 
to this rule. Such costs and transfer effects are not accounted for 
below. Similarly, the rule does not estimate avoided turnover costs 
to the employer associated with such a scenario.
---------------------------------------------------------------------------

    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. 
These quantified impacts do 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 10-year total discounted lost compensation to asylum applicants at 
3 percent could range from $2.183 billion to $6.609 billion and at 7 
percent could range from $1.797 billion to $5.442 billion (years 2020-
2029). USCIS recognizes that the impacts of this rule could be 
overstated if the provisions in the broader asylum EAD NPRM are 
finalized as proposed. Specifically, the broader asylum EAD NPRM 
proposes to limit or delay eligibility for employment authorization for 
certain asylum applicants. Accordingly, if the population of affected 
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.
    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 \53\ 
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).\54\ 
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.\55\ 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 
annually.\56\ Adding the lost compensation to the tax losses provide 
total monetized estimates of this 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.\57\ 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.
---------------------------------------------------------------------------

    \53\ 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.
    \54\ 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.
    \55\ 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.
    \56\ 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.
    \57\ 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 rule will potentially 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. With removing the 
30-day timeframe, USCIS expects 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.
    This rule will 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 will be able 
to 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 is anticipated 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.\58\
---------------------------------------------------------------------------

    \58\ 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.

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

[[Page 37533]]

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

                                   Table 4--Summary of Provisions and Impacts
----------------------------------------------------------------------------------------------------------------
                                                                  Expected costs and
         Current provision             Change to provision      transfers from changed    Expected benefits from
                                                                      provision              changed provision
----------------------------------------------------------------------------------------------------------------
USCIS has a 30-day initial EAD       USCIS is eliminating    Quantitative: This           Quantitative: Not
 adjudication timeframe for           the provisions for      provision could delay the    estimated.
 applicants who have pending asylum   the 30-day              ability of some initial
 applications.                        adjudication            applicants to work. A
                                      timeframe and           portion of the impacts of
                                      issuance of initial     the rule would be the lost
                                      EADs for pending        compensation transferred
                                      asylum applicants.      from asylum applicants to
                                                              others currently in the
                                                              workforce, possibly in the
                                                              form of additional 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
                                                              2020-2029 averages $4.396
                                                              billion and $3.619 billion
                                                              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 annually.
                                                             Qualitative: In cases where  Qualitative: DHS would
                                                              companies cannot find        be able to operate
                                                              reasonable substitutes for   under long-term
                                                              the labor the asylum         sustainable case
                                                              applicants would have        processing times for
                                                              provided, affected           initial EAD
                                                              companies would also lose    applications for
                                                              profits from the lost        pending asylum
                                                              productivity. In all         applicants, to allow
                                                              cases, companies would       sufficient time to
                                                              incur opportunity costs by   address national
                                                              having to choose the next    security and fraud
                                                              best alternative to          concerns, and to
                                                              immediately filling the      maintain
                                                              job the pending asylum       technological
                                                              applicant would have         advances in document
                                                              filled. There may be         production and
                                                              additional opportunity       identity verification
                                                              costs to employers such as   without having to add
                                                              search costs. There may      any resources.
                                                              also be additional
                                                              distributional impacts for
                                                              those in an applicant's
                                                              support network beyond a
                                                              minimum of 180 days--if
                                                              applicants are unable to
                                                              work legally, they may
                                                              need to rely on resources
                                                              from family members,
                                                              friends, non-profits, or
                                                              government entities for
                                                              support.
                                                             DHS notes that the           This rule would result
                                                              estimates from the NPRM      in reduced
                                                              regarding unemployment,      opportunity costs to
                                                              number of asylum             the Federal
                                                              applicants per year, and     Government. USCIS may
                                                              USCIS processing are not     also be able to
                                                              currently applicable as      reallocate the
                                                              COVID-19 has had a           resources it
                                                              dramatic impact on all       redistributed to
                                                              three. DHS offers this       comply with the 30-
                                                              analysis as a glimpse of     day provision,
                                                              the potential impacts of     potentially reducing
                                                              the rule, but the analysis   delays in processing
                                                              relies on assumptions        of other applications
                                                              related to a pre-COVID       and avoiding costs
                                                              economy. While future        associated with
                                                              economic conditions are      hiring additional
                                                              currently too difficult to   employees.
                                                              predict with any
                                                              certainty, DHS notes that
                                                              a higher unemployment rate
                                                              may result in lower costs
                                                              of this rule as replacing
                                                              pending asylum applicant
                                                              workers would most likely
                                                              be easier to do.
                                                              Consequently, as
                                                              unemployment is high, this
                                                              rule is less likely to
                                                              result in a loss of
                                                              productivity on behalf of
                                                              companies unable to
                                                              replace forgone labor.
Applicants can currently submit a    USCIS is removing the   Quantitative: None.........  Quantitative: None.
 renewal EAD application 90 days      90-day submission      Qualitative: None..........  Qualitative:
 before the expiration of their       requirement for                                      Applicants--
 current EAD.                         renewal EAD                                          Reduces
                                      applications.                                        confusion regarding
                                                                                           EAD renewal
                                                                                           requirements. Some
                                                                                           confusion may
                                                                                           nonetheless remain if
                                                                                           applicants consult
                                                                                           outdated versions of
                                                                                           regulations or
                                                                                           inapplicable DOJ
                                                                                           regulations.
                                                                                          DHS/USCIS--
                                                                                           The
                                                                                           regulations are being
                                                                                           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 all of the positions the asylum 
applicants would have filled, they will bear little or no costs, so the 
maximum of $774.76 million will be transferred

[[Page 37534]]

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 any 
reasonable labor substitutes for the positions the asylum applicants 
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.

                                                     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 for each
                                                                             Low wage        High wage       Low wage        High wage         row)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost......................................  Lost compensation used as            $255.88         $774.76           $0.00           $0.00         $387.38
                                             proxy for lost productivity
                                             to companies.
Transfer..................................  Compensation transferred                0.00            0.00          255.88          774.76          387.38
                                             from asylum applicants to
                                             other workers.
Transfer..................................  Lost employment taxes paid             39.15          118.54            0.00            0.00           59.27
                                             to the 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 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 un-monetized 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                (7%)         $387.38              $0         $774.76  RIA.
     rate in 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 additional search costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transfers:
    Annualized monetized transfers: ``on                (7%)              $0              $0              $0  RIA.
     budget''.

[[Page 37535]]

 
                                                        (3%)              $0              $0              $0
                                             ----------------------------------------------------------------
    From whom to whom?......................                                N/A                               N/A.
                                             ----------------------------------------------------------------
    Annualized monetized transfers:                     (7%)         $387.38              $0         $774.76  RIA.
     Compensation.                                      (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: Taxes...            (7%)          $59.27              $0         $118.54  RIA.
                                                        (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
--------------------------------------------------------------------------------------------------------------------------------------------------------
                  Category                                                Effects                                           Source citation
                                                                                                              (RIA, preamble, etc.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Effects on state, local, and/or tribal        None; no significant impacts to national labor force or to the  RIA.
 governments.                                 labor force of 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 Final 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 section 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.\59\ 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.
---------------------------------------------------------------------------

    \59\ 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 will 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

[[Page 37536]]

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.
    The need for this final 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' 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 
aliens 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.\60\
---------------------------------------------------------------------------

    \60\ 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 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.\61\ These applicants may be eligible to apply for an initial EAD 
under the (c)(8) category once the Asylum EAD Clock reaches 150 days.
---------------------------------------------------------------------------

    \61\ 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 currently valid for two years and requires 
renewal to extend an applicant's employment authorization if the 
underlying asylum application remains pending.\62\ 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.\63\ Removing the 90-day requirement will 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.
---------------------------------------------------------------------------

    \62\ 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.
    \63\ 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 this section, we have updated filing volumes and some additional 
metrics to capture FY 2018 and 2019 data and information. However, 
consistent with the NPRM, the costs and analysis is still benchmarked 
to FY 2017 processing times (before the Rosario v. USCIS court order). 
In FY 2019, USCIS received a total of 96,861 affirmative filings of 
Form I-589 applications for asylum. The number of total receipts for 
asylum applicants rose consistently from FY 2013 to FY 2017, before 
declining in FY 2018 and FY 2019 (Table 7). As the number of asylum 
applicants increases, the backlog continues to grow,\64\ resulting in a 
greater number of people who are eligible to apply for EADs while they 
await adjudication of their asylum application.
---------------------------------------------------------------------------

    \64\ As of June 2018, the asylum backlog was still increasing, 
but its growth rate has begun to stabilize.

   Table 7--Total Annual Affirmative Form I-589 Receipts Received From
                         Asylum Applicants \65\
------------------------------------------------------------------------
                     Fiscal year                         Total receipts
------------------------------------------------------------------------
2013.................................................             44,453
2014.................................................             56,912
2015.................................................             84,236
2016.................................................            115,888
2017.................................................            142,760
2018.................................................            106,041
2019.................................................             96,861
------------------------------------------------------------------------
Source: All USCIS Application and Petition Form Types, All Form Types
  Performance Data (Fiscal Year 2013-2019, 4th Qtr), https://www.uscis.gov/tools/reports-studies/immigration-forms-data/data-set-all-uscis-application-and-petition-form-types.

    This larger number of Form I-765 filings linked to asylum claims 
has strained resources and led to longer processing times for 
adjudication. Table 8 shows the total, initial, and renewal 
applications received for Form I-765 for asylum applicants for FY 2013 
to FY 2019. \66\
---------------------------------------------------------------------------

    \65\ 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.
    \66\ 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.

[[Page 37537]]



                Table 8--Total Annual Form I-765 Receipts Received From Pending Asylum Applicants
----------------------------------------------------------------------------------------------------------------
                                                                  Total receipts   Total initial   Total renewal
                           Fiscal year                                   *           receipts        receipts
----------------------------------------------------------------------------------------------------------------
2013............................................................          78,882          41,021          37,861
2014............................................................         109,272          62,169          47,103
2015............................................................         178,589         106,030          72,559
2016............................................................         298,580         169,970         128,610
2017............................................................         474,037         261,782         212,255
2018............................................................         324,991         262,965          62,026
2019............................................................         551,226         216,038         335,188
----------------------------------------------------------------------------------------------------------------
Source: File Tracking Data, USCIS, Office of Performance and Quality
* Total receipts do not include replacement receipts.
Note: This data includes receipts received from both affirmative and defensive pending asylum applicants.

    In FY 2019, USCIS received a total of 551,226 (non-replacement) 
applications for Form I-765 from pending asylum applicants, with less 
than half as initial applications (216,038 or 39.2 percent). There were 
335,188 renewal applications (60.8 percent) in FY 2019. 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 rose sharply during the last five years, 
peaking in 2017, DHS assumes the increase in initial EAD applications 
has some correlation with the high volumes of asylum applications in 
the same years. As pending asylum applications increased, 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 474,037 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, and those that it did not. Specifically, 
Table 9A presents the data for FY 2017, reflecting the anticipated 
outcome of this rule, while Table 9B presents information for 2019, 
which reflect current processing times under the Rosario v. USCIS court 
order. The table also includes the initial applications that were 
adjudicated within a 60-day timeframe, 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, nor any referrals to outside 
agencies that may be needed. Delays could also be caused by rescheduled 
fingerprinting.

       Table 9A--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                        Approved                        (percent)
                                      initial     Denied initial      initial     Denied 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
----------------------------------------------------------------------------------------------------------------


       Table 9B--Percentage of Completions for Initial Form I-765 for Pending Asylum Applicants in FY 2019
----------------------------------------------------------------------------------------------------------------
                                  No additional vetting required    Additional vetting required
                                             (percent)                       (percent)
   Number of days the initial    ----------------------------------------------------------------      Total
     application was pending         Approved                        Approved         Denied         (percent)
                                      initial     Denied initial      initial         initial
                                   applications    applications    applications    applications
----------------------------------------------------------------------------------------------------------------
0-30............................              67              14               9               3              93
31-60...........................               1               0               2               0               3

[[Page 37538]]

 
Over 60.........................               1               0               2               1               4
                                 -------------------------------------------------------------------------------
    Total (Percent).............              69              14              13               5             100
----------------------------------------------------------------------------------------------------------------
Source: File tracking data, USCIS, Office of Performance and Quality.
Note: Additional vetting includes the applications issued an RFE, referred to BCU/CFDO and both.

    In FY 2019, USCIS adjudicated within the 30-day timeframe the 
majority (93 percent) \67\ of all initial Form I-765 applications 
received. USCIS approved within 30 days 67 percent \68\ of the initial 
applications received and denied 14 percent that did not require any 
additional vetting. Of the 76 percent of approved applications, only 9 
percent required additional vetting, while 67 percent did not. USCIS' 
completion rate within a 60-day timeframe increased to 96 percent 
overall, with 79 percent \69\ of the 96 percent of applications 
approved and 17 percent \70\ of the 96 percent of applications denied. 
Only 14 percent \71\ of the 96 percent of applications adjudicated 
within 60 days required additional vetting, while the majority of 
applications did not (82 percent of the 96 percent of applications 
adjudicated within 60 days).\72\
---------------------------------------------------------------------------

    \67\ This figure is rounded from 92.8 percent. USCIS notes that 
earlier in the preamble, we conveyed that the FY 2019 processing 
rate for-under 30 days was 96.9 percent. The difference is due to 
the time deductions associated with requests for evidence (RFE). The 
latter, lower figure excludes RFE time deductions. A similar 
adjustment was made for the NPRM analysis benchmarked to FY 2017, 
which is what we base the costs on.
    \68\ Calculation of 30-day Approved: 67 (No Additional Vetting 
Percent Approved 0--30 days) + 9 (Additional Vetting Percent 
Approved 0--30 days) = 76 percent.
    \69\ Calculation of 60-day Approved: 67 (No Additional Vetting 
Percent Approved 0-30 days) + 1 (No Additional Vetting Percent 
Approved 31-60 days) + 9 (Additional Vetting Percent Approved 0-30 
days) + 2 (Additional Vetting Percent Approved 31-60 days) = 79 
percent.
    \70\ Calculation of 60-day Denied: 14 (No Additional Vetting 
Percent Denied 0-30 days) + 0 (No Additional Vetting Percent Denied 
31-60 days) + 3 (Additional Vetting Percent Denied 0-30 days) + 0 
(Additional Vetting Percent Denied 31-60 days) = 17 percent.
    \71\ Calculation of 60-day Additional Vetting: 9 (Additional 
Vetting Percent Approved 0-30 days) + 2 (Additional Vetting Percent 
Approved 31-60 days) + 0 (Additional Vetting Percent Denied 31-60 
days) + 3 (Additional Vetting Percent Denied 0-30 days) = 14 
percent.
    \72\ Calculation of 60-day No Additional Vetting: 67 (No 
Additional Vetting Percent Approved 0-30 days) + 1 (No Additional 
Vetting Percent Approved 31-60 days) + 14 (No Additional Vetting 
Percent Denied 0-30 days) + 0 (No Additional Vetting Percent Denied 
31-60 days) = 82 percent.
---------------------------------------------------------------------------

    By comparison, in FY 2017, the anticipated outcome of this rule, 
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 \73\ 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 \74\ of applications approved and 5 percent 
\75\ denied. Only 10 percent \76\ of applications adjudicated within 60 
days required additional vetting, while the majority of approved 
applications did not (68 percent of the total).\77\
---------------------------------------------------------------------------

    \73\ Calculation of 30-day Approved: 42 (No Additional Vetting 
Percent Approved 0-30 days) + 3 (Additional Vetting Percent Approved 
0--30 days) = 45 percent.
    \74\ 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.
    \75\ 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 31ndash;60 days) 
= 5 percent.
    \76\ 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.
    \77\ 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 9A 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 historically-
high asylum receipt numbers in recent years, the asylum interview 
backlogs, and updated operations as outlined in the background of this 
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.
4. Transfers, Costs, and Benefits of the Rule
a. Transfers and Costs
    This final rule removes 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

[[Page 37539]]

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 (for example, 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 was 
low as of November 2019, there is still evidence of some labor market 
slack.\78\ 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.
---------------------------------------------------------------------------

    \78\ See Bureau of Labor Statistics, Employment Situation News 
Release--November 2019, Table A-8 Employed persons by class of 
worker and part-time status, February 21, 2020. Available at https://www.bls.gov/news.release/archives/empsit_12062019.pdf.
---------------------------------------------------------------------------

    In FY 2017, the processing times for initial Form I-765 filings 
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 
FY 2019, USCIS adjudicated approximately 96 percent of applications 
within 60 days. To estimate lost wages and other benefits, USCIS used 
FY 2017 daily processing time data as compared to the baseline, which 
assumes 100 percent of applications are adjudicated within 30 days. In 
FY 2017, USCIS adjudicated 119,088 approved applications \79\ past the 
regulatory set timeframe.
---------------------------------------------------------------------------

    \79\ 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 impacted by this rule and are 
therefore not included in the analysis for lost compensation.
---------------------------------------------------------------------------

    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 
for the (c)(8) category 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, 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 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.\80\ 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 is 13.8 
percent higher than the federal minimum wage.\81\ DHS also does not 
rule out the possibility that some portion of the population might earn 
wages at the average level for all occupations. 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 \82\ to take into consideration the variance in 
average wages across states as an upper bound. USCIS's lower and upper 
bounds represent estimates of the range for this population's average 
wage, understanding that it is possible that some workers may earn more 
than the average wage across all occupations, and, that some may earn 
lower than the prevailing minimum wage, such as federal minimum wage.
---------------------------------------------------------------------------

    \80\ 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.
    \81\ 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.
    \82\ 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 BLS data, 
USCIS calculated a benefits-to-wage multiplier of 1.46 \83\ 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 \84\ and $36.47 \85\ 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,\86\ respectively. USCIS also assumes that EAD 
holders would work 5 out of every 7 days, or an average of 21 days per 
month.
---------------------------------------------------------------------------

    \83\ 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.
    \84\ Calculation: $8.25 x 1.46 = $12.05 per hour.
    \85\ Calculation: $24.98 x 1.46 = $36.47 per hour.
    \86\ Calculations: $12.05 per hour x 8 hours = $96.36 per day; 
$36.47 per hour x 8 hours = $291.77 per day.
---------------------------------------------------------------------------

    In the proposed rule, using FY 2017 data, USCIS estimated that the 
119,088 approved EAD applicants experienced an estimated total 
2,655,429 lost working days, and lost compensation could range from 
$255.88 million to $774.76 million.\87\ 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 applications 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

[[Page 37540]]

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.
---------------------------------------------------------------------------

    \87\ 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 That Took Longer Than
                                                                        [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: 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.

    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 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 rule may result in a delay for some applicants to earn 
compensation if EAD processing is delayed beyond the current 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 billion to $6,609 
billion, and at 7 percent could range from $1.797 billion to $5.442 
billion (years 2020-2029). USCIS recognizes that the anticipated 
impacts of this rule could be overstated if the provisions in the 
broader asylum EAD NPRM are finalized as proposed. Specifically, the 
broader asylum EAD NPRM proposes to 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 rule could be 
overstated because the population affected may be lower than estimated 
in this rule.
    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 \88\ 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).\89\ 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.\90\ Lost wages ranging from $255.88 million to $774.76 million

[[Page 37541]]

would result in employment tax losses to the government ranging from 
$39.15 million to $118.54 million annually.\91\ 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.
---------------------------------------------------------------------------

    \88\ 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.
    \89\ 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.pdf (last viewed December 
9, 2019).
    \90\ 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.
    \91\ 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 
removing the 30-day timeline rather than increasing the number of 
adjudication officers in the long-term.
    This rule is expected to 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. When the 30-day timeframe is 
removed, these redistributed resources may 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.
    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.
b. Benefits
    By eliminating the 30-day provision, DHS will 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 will 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.
    USCIS will benefit from the removal of the 90-day renewal 
requirement, because regulations are being 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.
c. Labor Market Overview
    As discussed in the population section of this analysis, USCIS 
anticipates receiving approximately 474,037 (non-replacement) Form I-
765 applications annually from pending asylum applicants with an 
estimated 261,782 initial applications and 212,255 renewal 
applications. Since this rule will only affect initial applicants who 
experience potential delays in processing, USCIS estimates the affected 
population to be approximately 119,088 applications.\92\ The U.S. labor 
force consists of a total of 164,404,000, according to November 2019 
data.\93\ Therefore, the population affected by this 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.\94\
---------------------------------------------------------------------------

    \92\ In FY 2017, USCIS adjudicated 119,088 approved applications 
past the regulatory set timeframe.
    \93\ Figures obtained from Bureau of Labor Statistics, 
Employment Situation News Release--November 2019, Table A-8 Employed 
persons by class of worker and part-time status, February 21, 2020. 
Available at https://www.bls.gov/news.release/archives/empsit_12062019.pdf.
    \94\ Calculation: (119,088 approximate initial applicants who 
could experience processing delays per year/164,404,000 workers) 
*100 = 0.07 percent.
---------------------------------------------------------------------------

    In any case, USCIS notes that this rule does not introduce any 
newly eligible workers into the labor force, or permanently prevent any 
eligible workers from joining the labor force. This 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 rulemaking is not 
seeking to alter which pending asylum applicants are eligible to apply 
for employment authorization. Therefore, this rule will not change the 
composition of the population of the estimated 261,782 initial 
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 calendar days each, for a total of 
3,651,326 days.\95\
---------------------------------------------------------------------------

    \95\ Calculation: 3,654,326 total days/119,088 applicants = 31 
days (rounded).
---------------------------------------------------------------------------

d. Alternatives
(1) Alternative: 90-Day Regulatory Timeframe
    DHS considered an alternative to removing 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

[[Page 37542]]

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 this rule, which removes any processing timeframe.\96\
---------------------------------------------------------------------------

    \96\ 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 \97\ 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 \98\ 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.
---------------------------------------------------------------------------

    \97\ 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 rule and are therefore not 
included in the analysis for lost compensation.
    \98\ 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 90
                                          31-60 Days         61-90 Days            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. As was done in 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.\99\ 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 $1.943 billion to $5.883 billion, and, at 7 percent 
could range from $1.600 billion to $4.844 billion (years 2020-2029). 
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 
proposed to limit or delay eligibility for employment authorization for 
certain asylum applicants.
---------------------------------------------------------------------------

    \99\ 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.
---------------------------------------------------------------------------

    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, 365 F. Supp. 3d 
1156 (W.D. Wash. 2018), requires USCIS to process asylum EAD 
applications in accord with the current regulatory timeframe of 30 
days. This rule removes 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

[[Page 37543]]

below, USCIS compares the lost working days and associated lost 
compensation and taxes under the 90-day alternative with the 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 employment    Lost employment
                                        Number of                                                                       taxes when         taxes when
                                        applicants     Lost working days   Lost compensation    Lost compensation   replacement labor  replacement labor
                                       impacted by                           (lower bound)        (upper bound)        is not found       is not found
                                     change (FY 2017)                                                                 (lower bound)      (upper bound)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current 30-day Processing                         N/A                N/A                  N/A                  N/A                N/A                N/A
 Timeframe (i.e., no action
 baseline)........................
90-day Adjudication Timeframe                 119,088          2,377,451         $227,755,147         $689,614,978        $34,846,537       $105,511,092
 Alternative......................
No Adjudication Timeframe.........            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 final rule, and the 90-day alternative. When Rosario 
compelled USCIS to comply with the 30-day regulatory provision in FY 
2018 (the baseline), USCIS redistributed its adjudication resources to 
work up to full compliance. When the 30-day timeframe is removed all of 
these redistributed resources may 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 did not pursue 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.

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 rule will continue to provide employment 
authorization to asylum applicants who voluntarily apply for such 
benefits. This 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 aliens may be impacted by 
this rule annually. Individuals are not considered by the RFA to be a 
small entity. As previously explained, this rule may result in lost 
compensation for some initial applicants whose EAD processing is 
delayed beyond the 30-day regulatory timeframe. However, the 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 rule.
    Several public comments claimed that the rule would pose burdens to 
small entities, but no such comments claimed that the rule directly 
regulates or burdens small entities. USCIS emphasizes that the rule 
will not regulate employers and only regulate individuals. A final 
regulatory flexibility analysis (FRFA) follows.
(1) A Statement of the Need for, and Objectives of the Rule
    This rule removes 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 rule also 
makes 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 Statement of the Significant Issues Raised by the Public Comments 
in Response to the Initial Regulatory Flexibility Analysis, a Statement 
of the Assessment of the Agency of Such Issues, and a Statement of any 
Changes Made in the Rule as a Result of Such Comments
    Several commenters made reference to small entities.
    Comments: A couple of commenters mentioned that refugees and 
asylees engage in entrepreneurial projects and employment at a higher 
rate than U.S.-born citizens, creating small businesses and thus jobs 
that drive growth in the US economy, and that the small businesses and 
the jobs they create are the engines of growth, innovation, and 
stability. A couple commenters claimed that lost wages to asylum-
seekers would likely result in losses to small businesses in asylum-
seekers, and that

[[Page 37544]]

the rule would have significant negative impact not only on asylum 
seekers, but also on employers, small businesses, communities, and the 
economy as a whole.
    USCIS Response: USCIS appreciates the commenters' input. As we have 
explained in our earlier responses and in the regulatory analysis, the 
rule might impact the timing under which asylum seekers are able to 
earn labor income, but it does not regulate employers. In the NPRM, 
USCIS acknowledged that if companies cannot find reasonable substitutes 
for the labor the asylum applicants would have provided, these 
companies would incur costs through lost productivity and profits. No 
commenters claimed that the rule directly regulates or directly impacts 
small entities. The rule is being adopted without material change from 
the NPRM.
(3) The Response of the Agency to any Comments Filed by the Chief 
Counsel for Advocacy of the Small Business Administration in Response 
to the Proposed Rule, and a Detailed Statement of any Change Made to 
the Proposed Rule in the Final Rule as a Result of the Comments
    DHS did not receive comments on this rule from Chief Counsel for 
Advocacy of the Small Business Administration.
(4) A Description of and an Estimate of the Number of Small Entities to 
Which the Rule Will Apply or an Explanation of Why No Such Estimate Is 
Available
    This rule directly regulates pending asylum applicants, or 
individuals, applying for work authorization. However, DHS presents 
this FRFA as the 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 rule, but DHS believes the number of small 
entities directly regulated by this rule is zero.
(5) A Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the 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.
(6) A Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes, Including a Statement of the 
Factual, Policy, and Legal Reasons for Selecting the Alternative 
Adopted in the Final Rule and Why Each One of the Other Significant 
Alternatives to the Rule Considered by the Agency Which Affect the 
Impact on Small Entities Was Rejected
    DHS is not aware of any alternatives to the rule that accomplish 
the stated objectives and that would minimize the economic impact of 
the rule on small entities as this rule imposes no direct costs on 
small entities.

C. Congressional Review Act

    The Office of Information and Regulatory Affairs has determined 
that this is a major rule, as defined by 5 U.S.C. 804. Accordingly, 
absent exceptional circumstances, this rule will take effect 60 days 
after its publication. On or before the date of publication, DHS will 
submit to each House of Congress and the Comptroller General the 
reports required by 5 U.S.C. 801.

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 2020 levels by the Consumer 
Price Index Inflation Calculator, is $172 million.\100\
---------------------------------------------------------------------------

    \100\ U.S. Bureau of Labor Statistics, Consumer Price Index 
Inflation Calculator, January 1995 to January 2020, available at 
https://data.bls.gov/cgi-bin/cpicalc.pl (last visited Feb. 26, 
2020).
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    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).

E. Executive Order 13132 (Federalism)

    This 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 responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132 (Federalism), it is determined that this 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 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

[[Page 37545]]

asylum applicant would have earned. For the reasons stated elsewhere in 
this rule, 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 rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does 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 rule removes 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).
    This rule clearly 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. Further, this rule is not part of a 
larger action and presents no extraordinary circumstances creating the 
potential for significant environmental effects. Therefore, this rule 
is categorically excluded from further NEPA review.

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 rule 
does not use technical standards. Therefore, we did not consider the 
use of voluntary consensus standards.

L. Executive Order 12630

    This 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 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 rule and determined that this rule would 
not have a significant adverse effect on the supply, distribution, or 
use of energy. Therefore, this rule does not require a Statement of 
Energy Effects under Executive Order 13211.

O. Signature

    The Acting Secretary of Homeland Security, Chad F. Wolf, having 
reviewed and approved this document, is delegating the authority to 
electronically sign this document to Chad R. Mizelle, who is the Senior 
Official Performing the Duties of the General Counsel for DHS, for 
purposes of publication in the Federal Register.

List of Subjects in 8 CFR Part 208

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

    Accordingly, DHS amends 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 Sec.  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'' and removing the words ``the Service'' wherever they appear and 
adding, in their place, the word ``USCIS'';

[[Page 37546]]

0
b. In paragraph (c)(3), removing the words ``the Service'' and adding, 
in its place, the word ``DHS''; and
0
c. Removing paragraph (d).

Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel, U.S. 
Department of Homeland Security.
[FR Doc. 2020-13391 Filed 6-19-20; 8:45 am]
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