[Federal Register Volume 85, Number 124 (Friday, June 26, 2020)]
[Rules and Regulations]
[Pages 38532-38628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13544]



[[Page 38531]]

Vol. 85

Friday,

No. 124

June 26, 2020

Part II





 Department of Homeland Security





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8 CFR Parts 208 and 274a





Asylum Application, Interview, and Employment Authorization for 
Applicants; Final Rule

  Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules 
and Regulations  

[[Page 38532]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 208 and 274a

[CIS No. 2648-19; DHS Docket No. USCIS-2019-0011]
RIN 1615-AC27


Asylum Application, Interview, and Employment Authorization for 
Applicants

AGENCY: Department of Homeland Security.

ACTION: Final rule.

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SUMMARY: On November 14, 2019, the Department of Homeland Security 
(DHS) published a notice of proposed rulemaking (NPRM) that would 
modify DHS's regulations governing asylum applications, interviews, and 
eligibility for employment authorization based on a pending asylum 
application. This final rule implements the proposed rule, with some 
amendments based on public comments received.

DATES: This final rule is effective August 25, 2020.

FOR FURTHER INFORMATION CONTACT: Maureen Dunn, Chief, Division of 
Humanitarian Affairs, Office of Policy and Strategy, U.S. Citizenship 
and Immigration Services, Department of Homeland Security, 20 
Massachusetts Avenue NW, Suite 1100, Washington, DC 20529-2140; 
Telephone (202) 272-8377.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
    A. Proposed Rule
    B. Major Provisions of the Proposed Rule
    C. Summary of Changes in the Final Rule
    1. Effective Date
    2. Illegal Entry
    3. One-Year Filing Deadline
    4. Criminal Bars to Eligibility
    5. Applicant-Caused Delays
    D. Summary of Costs, Benefits, and Transfer of Payments
II. Purpose of The Regulatory Action
    A. Efforts To Reform the Asylum System
    B. Need for Reform
III. Background
    A. Legal Authority
    B. Eligibility for Asylum
    C. Affirmative vs. Defensive Asylum Filings
    D. Employment Authorization for Asylees and Asylum Applicants
    E. Asylum and EAD Adjudications
IV. Discussion of the Final Rule
    A. 365-Day Waiting Period To Apply for EADs Based on Pending 
Asylum Applications
    B. One-Year Filing Deadline
    C. Criminal Bars to Eligibility
    D. Procedural Reforms
    E. Termination of Employment Authorization
    1. Denial of Asylum Application by USCIS Asylum Officer
    2. Termination After Denial by IJ
    3. Automatic Extensions of Employment Authorizations and 
Terminations
    4. Adjudication and Termination of EADs Filed by UACs
    F. Aliens Who Have Established Credible Fear or Reasonable Fear 
of Persecution or Torture and Who Have Been Paroled Into the United 
States
    G. Illegal Entry
    H. Effective Date of the Final Rule
V. Public Comments on the Proposed Rule
    A. Summary of Public Comments
    B. Requests To Extend Comment Period
    C. Severability Clause
    D. Comments Expressing General Support for the NPRM
    E. Comments Expressing General Opposition to the NPRM
    F. Comments Regarding Legal Authority and Statutory Provisions
    1. Acting Secretary of Homeland Security's Legal Authority
    2. Relevant Statutes
    3. Litigation
    4. International Law and Conventions
    5. Administrative Procedure Act
    6. Constitutional Concerns
    G. Comments on Specific Rule Provisions
    1. 365-Day Waiting Period
    2. One-Year Filing Deadline
    3. Criminal Bars
    4. Illegal Entry and Good Cause Exception
    5. Procedural Reforms
    6. Miscellaneous Comments
    7. Effective Date and Retroactive Application
VI. Public Comments on Economic Analysis and Other Statutory and 
Regulatory Requirements
    A. Impacts and Benefits (E.O. 12866 and 13563)
    B. Other Comments on Statutory and Regulatory Requirements
VII. 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 Rule
    3. Population
    4. Transfers, Costs, and Benefits of This Rule
    B. Regulatory Flexibility Act (RFA)
    C. Congressional Review Act
    D. Unfunded Mandates Reform Act of 1995 (UMRA)
    E. Executive Order 13132 (Federalism)
    F. Executive Order 12988 (Civil Justice Reform)
    G. Executive Order 13175 (Consultation and Coordination With 
Indian Tribal Governments)
    H. Family Assessment
    I. National Environmental Policy Act (NEPA)
    J. National Technology Transfer and Advancement Act
    K. Executive Order 12630 (Governmental Actions and Interference 
With Constitutionally Protected Property Rights)
    L. Executive Order 13045 (Protection of Children From 
Environmental Health Risks and Safety Risks)
    M. Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use)
    N. Paperwork Reduction Act (PRA)
    O. Signature

Table of Abbreviations

APA--Administrative Procedure Act
ASC--Application Support Center
BCR--Biometrics Collection Rate
BFR--Biometrics Fee Ratio
BIA--Board of Immigration Appeals
BLS--Bureau of Labor Statistics
CAM--Central American Minors Program
CAT--Convention Against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment
CBP--U.S. Customs and Border Protection
CFR--Code of Federal Regulations
CPMS--Customer Profile Management System
DHS--U.S. Department of Homeland Security
DOJ--Department of Justice
DOS--Department of State
E.O.--Executive Order
EAD--Employment Authorization Document
EOIR--Executive Office for Immigration Review
FBI--Federal Bureau of Investigation
FDNS--Fraud Detection and National Security Directorate
FIFO--First in/First Out
Form I-589--Application for Asylum and for Withholding of Removal
Form I-765--Application for Employment Authorization
Form I-863--Notice of Referral to Immigration Judge
FY--Fiscal Year
GSA--General Services Administration
HSA--Homeland Security Act of 2002
ICE--U.S. Immigration and Customs Enforcement
IIRIRA--Illegal Immigration Reform and Immigrant Responsibility Act 
of 1996
IJ--Immigration Judge
INA--Immigration and Nationality Act
INS--Immigration and Naturalization Services
IRCA--Immigration Reform and Control Act of 1986
ISO--Immigration Services Officer
LCA--Labor Condition Application
LIFO--Last In, First Out
NEPA--National Environmental Policy Act
NOID--Notice of Intent to Deny
NPRM--Notice of Proposed Rulemaking
NTA--Notice to Appear
OMB--Office of Management and Budget
PM--Presidential Memorandum
PRA--Paperwork Reduction Act
RFA--Regulatory Flexibility Act
Secretary--Secretary of Homeland Security
TPS--Temporary Protected Status
TVPRA--The William Wilberforce Trafficking Victims Protection 
Reauthorization Act of 2008
UAC--Unaccompanied Alien Children
UMRA--Unfunded Mandates Act of 1995
UNHCR--United Nations High Commissioner for Refugees

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U.S.C.--United States Code
USCIS--U.S. Citizenship and Immigration Services
VAWA-- Violence Against Women Act

I. Executive Summary

A. Proposed Rule

    On November 14, 2019, DHS published a notice of proposed rulemaking 
(``NPRM'') entitled Asylum Application, Interview, and Employment 
Authorization for Applicants.\1\ In the NPRM, DHS proposed amendments 
in order to (1) reduce incentives for aliens to file frivolous, 
fraudulent, or otherwise non-meritorious asylum applications to obtain 
employment authorization pursuant to 8 CFR 274a.12(c)(8) (hereinafter 
``(c)(8) EAD'' or ``EAD'') or other non-asylum-based forms of relief 
such as cancellation of removal, and (2) discourage illegal entry into 
the United States. DHS also proposed changes to reduce incentives for 
aliens to intentionally delay asylum proceedings in order to extend the 
period of employment authorization based on the pending asylum 
application, and to simplify the adjudication process. DHS proposed 
further changes to prevent asylum applicants who have committed certain 
crimes from obtaining a (c)(8) EAD, and to make the decision to grant 
(c)(8) employment authorization to asylum applicants discretionary, in 
line with DHS' statutory authority. DHS proposed to modify its 
regulations in the following areas:
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    \1\ Asylum Application, Interview, and Employment Authorization 
for Applicants, 84 FR 62374 (proposed Nov. 14, 2019). DHS 
incorporates by reference the NPRM in its entirety here.
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    1. Extend the waiting period to apply for employment authorization: 
DHS proposed that asylum applicants wait 365 calendar days from the 
date their asylum applications are received by USCIS or the Department 
of Justice, Executive Office for Immigration Review (DOJ-EOIR) before 
they may apply for an EAD. DHS also proposed that USCIS will deny 
requests for (c)(8) EAD applications if there are any unresolved 
applicant-caused delays on the date of the EAD adjudication.
    2. Eliminate the issuance of recommended approvals for a grant of 
affirmative asylum: DHS proposed that USCIS will no longer issue 
recommended approvals for asylum. These are typically cases where an 
asylum officer has made a preliminary determination to grant asylum but 
has not yet received the results of the mandatory, confidential 
investigation of the alien's identity and required background and 
security checks.
    3. Revise eligibility for employment authorization: DHS proposed to 
exclude aliens who, absent good cause, entered or attempted to enter 
the United States at a place and time other than lawfully through a 
U.S. port of entry from eligibility for (c)(8) employment 
authorization. DHS also proposed to exclude from eligibility for 
employment authorization aliens who have failed to file for asylum 
within one year of their last entry, unless and until an asylum officer 
or immigration judge (IJ) determines that an exception to the statutory 
requirement to file for asylum within one year applies. DHS proposed to 
exclude from eligibility aliens whose asylum applications have been 
denied by an asylum officer or an IJ during the 365-day waiting period 
or before the request for initial employment authorization has been 
adjudicated. DHS further proposed to exclude from eligibility for 
employment authorization aliens who have: (1) Been convicted of any 
aggravated felony as defined under section 101(a)(43) of the INA, 8 
U.S.C. 1101(a)(43); (2) been convicted of any felony in the United 
States or serious non-political crime outside the United States; or (3) 
been convicted in the United States of certain public safety offenses 
involving domestic violence or assault; child abuse or neglect; 
possession or distribution of controlled substances; \2\ or driving or 
operating a motor vehicle under the influence of alcohol or drugs, 
regardless of how the offense is classified by the state or local 
jurisdiction. DHS proposed that it would consider, on a case-by-case 
basis, whether aliens who have been convicted of any non-political 
foreign criminal offense, or have unresolved arrests or pending charges 
for any non-political foreign criminal offenses, warrant a favorable 
exercise of discretion.\3\ DHS requested public comment on whether 
these and additional crimes should be included as bars to employment 
authorization. Because the one-year filing deadline does not apply to 
unaccompanied alien children (UACs), DHS proposed that the bar to 
eligibility for failing to meet the one-year filing deadline would not 
bar UACs who apply for asylum from eligibility for an EAD after the 
365-day waiting period has expired. DHS also proposed to clarify that 
only applicants for asylum who are in the United States may apply for 
employment authorization. Finally, DHS proposed a severability clause 
to ensure that in the event any of provision of the final rule is found 
by a court to be invalid, DHS could still implement the remaining 
provisions of the rule.
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    \2\ See section 102 of the Controlled Substances Act (21 U.S.C. 
802).
    \3\ See, e.g., INA sec. 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F); 
INA sec. 212(a)(2)(A)(i)(I), 8 U.S.C. 1182(a)(2)(A)(i)(I); INA sec. 
212(a)(2)(B), 8 U.S.C. 1182(a)(2)(B).
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    4. Revise the provisions for EAD termination: DHS proposed revising 
when (c)(8) employment authorization terminates. DHS proposed that when 
a USCIS asylum officer denies an alien's request for asylum, any 
employment authorization associated with a pending asylum application 
would be terminated effective on the date of asylum application denial. 
If a USCIS asylum officer determines that the alien is not eligible for 
asylum, the asylum officer will typically refer the case to DOJ-EOIR. 
DHS proposed that if USCIS refers a case to DOJ-EOIR, employment 
authorization would continue, and the alien would be eligible to 
continue applying for EAD renewals, if needed, until the IJ renders a 
decision on the asylum application. If the IJ denies the asylum 
application, the alien's employment authorization would terminate 30 
days after denial, unless the alien filed a timely appeal with the 
Board of Immigration Appeals (BIA). Renewal of employment authorization 
would be available to the alien during the pendency of the appeal to 
the BIA. DHS, however, would prohibit employment authorization during 
the Federal court appeal process, unless the Federal court remanded the 
asylum case to the BIA. In such cases, the alien could reapply for a 
(c)(8) EAD once the case was pending before the BIA again.
    5. Change provisions for filing an asylum application: DHS proposed 
to remove the requirement that USCIS return an incomplete application 
within 30 days or have it deemed complete for adjudication purposes. 
DHS also proposed that amending an asylum application, requesting an 
extension to submit additional evidence beyond a time that allows for 
its meaningful consideration prior to the interview, or failing to 
appear at a USCIS Asylum office to receive a decision as designated, 
would constitute an applicant-caused delay, which, if not resolved by 
the date the application for employment authorization is adjudicated, 
would result in the denial of that employment authorization 
application. DHS also proposed to clarify the effect of an applicant's 
failure to appear for either an asylum interview or a scheduled 
biometric services appointment on a pending asylum application.
    6. Limit EAD validity periods: DHS proposed to clarify that the 
validity period of (c)(8) employment

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authorization is discretionary and further proposed that any (c)(8) EAD 
validity period, whether initial or renewal, would not exceed 
increments of 2 years. DHS proposed to allow USCIS to set shorter 
validity periods for initial and renewal (c)(8) EADs.
    7. Incorporate biometrics collection requirements into the 
employment authorization process for asylum seekers: DHS proposed to 
incorporate biometrics collection into the employment authorization 
process for asylum applicants, which would require applicants to appear 
at an Application Support Center (ASC) for biometrics collection and, 
if required, pay a separate biometric services fee. At present, USCIS 
biometrics collection generally refers to the collection of 
fingerprints, photographs, and signatures.\4\ Such biometrics 
collection would allow DHS to submit a (c)(8) applicant's fingerprints 
to the Federal Bureau of Investigation (FBI) for a criminal history 
check, facilitate identity verification, and facilitate (c)(8) EAD card 
production. DHS proposed to require applicants with a pending 
application for an initial or renewal (c)(8) EAD on the effective date 
of this rule to appear at an ASC for biometrics collection but DHS 
indicated it would not collect a biometric services fee from these 
aliens. DHS proposed to contact applicants with pending asylum-based 
EAD applications and provide notice of the place, date and time of the 
biometrics appointment.
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    \4\ See https://www.uscis.gov/forms/forms-information/preparing-your-biometric-services-appointment (describing biometrics as 
including fingerprints, photographs, and digital signature) (last 
visited July 11, 2019).
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    8. Clarify employment authorization eligibility for aliens who have 
been paroled after being found to have a credible or reasonable fear of 
persecution or torture: DHS proposed to clarify that aliens who have 
been paroled into the United States pursuant to section 212(d)(5) of 
the INA, 8 U.S.C. 1182(d)(5), after establishing a credible fear or 
reasonable fear of persecution or torture under 8 CFR 208.30, may not 
request a discretionary grant of employment authorization under 8 CFR 
274a.12(c)(11), but may still apply for a (c)(8) EAD, if otherwise 
eligible. DHS sought public comment on this proposal and whether the 
(c)(11) category (parole-based EADs) should be further limited, such as 
to provide employment authorization only to those aliens DHS determines 
are needed for foreign policy, law enforcement, or national security 
reasons, especially since parole is meant only as a temporary measure 
to allow an alien's physical presence in the United States until the 
need for parole is accomplished or the alien can be removed.
    9. Specify the effective date: DHS proposed to apply changes made 
by this rule only to initial and renewal applications for employment 
authorization under 8 CFR 274a.12(c)(8) and (c)(11) filed on or after 
the effective date of the final rule, with limited exceptions. DHS 
proposed that it would apply two of the ineligibility provisions--those 
relating to criminal offenses and failure to file the asylum 
application within one year of the alien's last entry to the United 
States--to initial and renewal applications for employment 
authorization applications pending on the effective date of the final 
rule. In order to implement the criminal ineligibility provision, DHS 
proposed to require applicants with an initial or renewal (c)(8) EAD 
application pending on the effective date of this rule to appear at an 
ASC for biometrics collection but DHS would not collect a biometric 
services fee from these aliens. DHS indicated it would contact 
applicants with pending applications and provide notice of the place, 
date and time of the biometrics appointment. It also noted that, if 
applicable, initial applications filed before the effective date of 
this Final Rule by members of the Rosario class would not be subject to 
any of the provisions of this proposed rule.\5\ DHS also sought public 
comment on whether other aliens, such as those affected by the 
Settlement Agreement in American Baptist Churches v. Thornburgh, 760 F. 
Supp. 796 (N.D.Cal.1991), or those whose asylum applications predate 
the 1995 asylum reforms, should be subject to all, some or none of the 
provisions in this rule.
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    \5\ On May 22, 2015, plaintiffs in Rosario v. USCIS, No. C15-
0813JLR (W.D. Wash.), brought a class action in the U.S. District 
Court for the Western District of Washington to compel USCIS to 
comply with the 30-day provision of 8 CFR 208.7(a)(1). On July 26, 
2018, the court enjoined USCIS from further failing to adhere to the 
30-day deadline for adjudicating EAD applications. DHS published a 
proposed rule to remove this timeframe on September 9, 2019, where 
it proposed to grandfather into the 30-day adjudication timeframe 
those class members who filed their initial EAD applications prior 
to the effective date of any final rule that changes the 30-day DHS 
timeline. To ensure compliance with the court order and consistency 
with the 30-day proposed rule, USCIS will not apply this rule to any 
initial EAD application filed by a Rosario class member that is 
pending as of the effective date of this rule, so long as the 
Rosario injunction remains in effect. USCIS has not included 
proposed regulatory text to this effect, but would include such text 
in the event that members of the Rosario class remain as of the date 
of publication of a final rule.
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    DHS also proposed revisions to existing USCIS information 
collections (forms) to accompany the proposed regulatory changes.

B. Major Provisions of the Proposed Rule

    DHS proposed the following regulatory changes:
    1. Amending 8 CFR 208.3, Form of application. DHS proposed removing 
the language providing that an application for asylum will 
automatically be deemed ``complete'' if USCIS fails to return the 
incomplete application to the alien within a 30-day period. The 30-day 
provision is inconsistent with how all other applications and petitions 
for immigration benefits are treated, creates an arbitrary circumstance 
for treating a potentially incomplete asylum application as complete, 
and imposes an unnecessary administrative burden on USCIS. DHS proposed 
to conform its current process for determining when an asylum 
application is received and complete to the general rules governing all 
other immigration benefits under 8 CFR 103.2, in addition to the 
specific asylum rules under 8 CFR 208.3 and 208.4. The regulations at 8 
CFR 103.2(a)(7) state that USCIS will record the receipt date as of the 
actual date the immigration benefit request is received at the 
designated filing location, whether electronically or in paper, 
provided that it is signed with a valid signature, executed, and filed 
in compliance with the regulations governing that specific benefit 
request. If a fee is required, the immigration benefit request must 
also include the proper fee. Immigration benefit requests not meeting 
these acceptance criteria are rejected at intake. Rejected immigration 
benefit requests do not retain a filing date.
    2. Amending 8 CFR 208.4, Filing the application. The proposed 
amendments to this section provided that a request to amend a pending 
application for asylum or to supplement such an application may be 
treated as an applicant-caused delay, and if unresolved on the date the 
employment authorization application is adjudicated, will result in the 
denial of the application for employment authorization.
    3. Amending 8 CFR 208.7, Employment authorization.\6\
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    \6\ DHS has published a notice of proposed rulemaking (NPRM) 
entitled ``Removal of 30-Day Processing Provision for Asylum 
Applicant-Related Form I-765 Employment Authorization 
Applications,'' DHS Docket No. USCIS-2018-0001, separate from this 
NPRM, which addresses application processing times. Comments on the 
NPRM addressing removal of the 30-day processing provision are not 
addressed here.
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    a. Jurisdiction. The proposed amendments to this section clarified 
that USCIS has jurisdiction over all applications for employment

[[Page 38535]]

authorization based on pending or approved applications for asylum.
    b. 365-day Waiting Period. The proposed amendments to this section 
also replaced the 150-day waiting period and the 180-day asylum EAD 
clock. The proposed amendments would make asylum applicants eligible to 
apply for employment authorization 365 calendar days from the date 
their asylum application is received. The 365-day period was based on 
an average of the current processing times for asylum applications 
which can range anywhere from 6 months to over 2 years, before there is 
an initial decision, especially in cases that are referred to DOJ-EOIR 
from an asylum office. DHS also proposed that if any unresolved 
applicant-caused delays in the asylum adjudication exist on the date 
the (c)(8) EAD application is adjudicated, the EAD application would be 
denied. Consistent with the prior regulation, DHS also proposed to 
exclude from eligibility aliens whose asylum applications have been 
denied by an asylum officer or an IJ during the 365-day waiting period 
or before the adjudication of the initial request for employment 
authorization.
    c. One-Year Filing Deadline. The proposed amendments to this 
section excluded from eligibility for employment authorization aliens 
who have failed to file for asylum within 1 year unless and until an 
asylum officer or IJ determines that an exception to the statutory 
requirement to file for asylum within 1 year applies.
    d. Illegal Entry. The proposed amendments to this section also made 
any alien who entered or attempted to enter the United States at a 
place and time other than lawfully through a U.S. port of entry 
ineligible to receive a (c)(8) EAD, with limited exceptions.
    e. Criminal convictions. The proposed amendments to this section 
excluded from (c)(8) EAD eligibility any alien who has: (1) Been 
convicted of an aggravated felony as described in section 101(a)(43) of 
the INA, 8 U.S.C. 1101(a)(43); (2) been convicted of any felony \7\ in 
the United States; (3) been convicted of a serious non-political crime 
outside the United States; (4) been convicted in the United States of 
domestic violence or assault (except aliens who have been battered or 
subjected to extreme cruelty and who were not the primary perpetrators 
of violence in their relationships), child abuse or neglect; possession 
or distribution of controlled substances; or driving or operating a 
motor vehicle under the influence of alcohol or drugs, regardless of 
how the offense is classified by the state, local, or tribal 
jurisdiction. DHS proposed to consider, on a case-by-case basis, 
whether an alien who has unresolved domestic charges or arrests that 
involve domestic violence, child abuse, possession or distribution of 
controlled substances, or driving under the influence of drugs or 
alcohol, warrants a favorable exercise of discretion for a grant of 
employment authorization.
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    \7\ See 18 U.S.C. 3156(a)(3) (the term ``felony'' means an 
offense punishable by a maximum term of imprisonment of more than 1 
year).
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    f. Recommended Approvals. The proposed amendments to this section 
removed the language referring to ``recommended approvals.'' Under this 
proposal, USCIS would no longer issue recommended approvals as a 
preliminary decision for affirmative asylum adjudications.
    g. EAD Renewals. The proposed amendments to this section permitted 
renewals during the pendency of the asylum application, including while 
the asylum application is still pending before the immigration court or 
at the BIA (if a timely appeal was filed), for such periods as 
determined by USCIS in its discretion, but not to exceed increments of 
2 years.
    h. Submission of biometrics. The proposed amendments to this 
section required applicants to submit biometrics at a scheduled 
biometric services appointment for all initial and renewal applications 
for employment authorization. DHS proposed to require applicants with 
an initial or renewal (c)(8) EAD pending on the effective date of the 
final rule to appear at an ASC for biometrics collection, but indicated 
it would not collect a biometric services fee from these aliens. DHS 
also proposed to contact applicants with pending applications and 
provide notice of the place, date and time of the biometrics 
appointment.
    i. Termination After Denial by USCIS Asylum Officer. The proposed 
amendments to this section provided that when a USCIS asylum officer 
denies an alien's request for asylum, any employment authorization 
associated with a pending asylum application, including any automatic 
extension of employment authorization, would be automatically 
terminated effective on the date the asylum application is denied. As 
is current practice, if a USCIS asylum officer determines that the 
alien has no lawful immigration status and is not eligible for asylum, 
the asylum officer will refer the case to DOJ-EOIR and place the alien 
in removal proceedings. Employment authorization would be available to 
the alien while the alien is in removal proceedings and the alien's 
application for asylum is under review before an IJ.
    j. Termination After Denial by an IJ or the BIA. The proposed 
amendments to this section also provided that where USCIS refers a case 
to DOJ-EOIR, employment authorization would continue for 30 days 
following the date that the IJ denies the asylum application to account 
for a possible appeal of the denial to the BIA. If the alien filed a 
timely appeal, employment authorization would continue, and the alien 
would be able to file a renewal EAD application, if otherwise eligible 
and if the asylum application was still pending on review with the BIA 
prior to expiration of the alien's EAD. Employment authorization would 
be prohibited during the Federal court appeal process. However, if the 
Federal court remanded the case to the BIA for a new decision, the 
alien could request a (c)(8) EAD once the asylum application was again 
pending with the BIA.
    k. Eligibility. The proposed amendments to the section also 
clarified and codified that only an applicant who is in the United 
States may apply for employment authorization.
    l. Severability. The proposed amendments to this section included a 
severability clause. This section was drafted with provisions separated 
into distinct parts. In the event that any provision is found by a 
court to be invalid, DHS intended that the remaining provisions be 
implemented as an independent rule in accordance with the stated 
purposes of this rule.
    4. Amending 8 CFR 208.9, Procedure for interview before an asylum 
officer. The proposed amendments to this section clarified that an 
applicant's failure to appear at a USCIS Asylum Office to receive and 
acknowledge receipt of the asylum decision following an interview, and 
an applicant's request for an extension to submit additional evidence 
would be considered applicant-caused delays for purposes of eligibility 
for employment authorization. The proposed amendments also removed 
references to the ``Asylum EAD clock'' and required that documentary 
evidence to support a pending asylum application be submitted no later 
than 14 calendar days before the asylum interview. DHS proposed this 
change to allow USCIS asylum officers time to conduct a meaningful 
examination of the evidence prior to, and in preparation for, the 
asylum applicant's interview. As a matter of discretion, the asylum 
officer can consider evidence submitted within the 14 calendar days in 
advance of the interview date, or may grant the

[[Page 38536]]

applicant a brief extension of time during which the applicant may 
submit additional evidence.
    5. Amending 8 CFR 208.10, Failure to appear for an interview before 
an asylum officer or for a biometric services appointment for the 
asylum application. The proposed amendments to this section clarified 
that an asylum applicant's failure to appear for an asylum interview or 
biometric services appointment may lead to referral or dismissal of the 
asylum application, and may be treated as an applicant-caused delay 
affecting eligibility for employment authorization. In addition, DHS 
proposed to clarify that USCIS is not obligated to send any notice to 
the applicant about his or her failure to appear at a scheduled 
biometrics appointment or an asylum interview as a prerequisite to 
making a decision on the asylum application, which may include 
dismissing the asylum application or referring it to an IJ. DHS 
proposed these amendments to facilitate more timely and efficient case 
processing when applicants fail to appear for essential appointments. 
Finally, the amendments replaced references to fingerprint processing 
and fingerprint appointments with the term presently used by USCIS--
``biometric services appointment.''
    6. Amending 8 CFR 274a.12, Classes of aliens authorized to accept 
employment. The proposed amendments to this section removed the 
language in 8 CFR 274a.12(c)(8) referring to ``recommended approvals.'' 
The amendments also deleted an obsolete reference to the Commissioner 
of the former Immigration and Naturalization Service (INS) and replaced 
it with a reference to USCIS. DHS further proposed to clarify that 
aliens who have been paroled into the United States after being found 
to have a credible fear or reasonable fear of persecution or torture 
may not apply under 8 CFR 274a.12(c)(11) (parole-related EADs), but may 
apply for employment authorization under 8 CFR 274a.12(c)(8) if they 
apply for asylum in accordance with the rules for (c)(8) EADs and if 
they are otherwise eligible. The proposed amendments also provided that 
employment authorization would not be granted if a denial of an asylum 
application is under judicial review, in conformity with amendments 
proposed at 8 CFR 208.7. DHS requested public comment on these 
proposals and whether the (c)(11) category (parole-based EADs) should 
be further limited, such as to provide employment authorization only to 
those DHS determines are needed for foreign policy, law enforcement, or 
national security reasons, especially since parole is meant only as a 
temporary measure to allow an alien's physical presence in the United 
States until the need for parole is accomplished or the alien can be 
removed.
    7. Amending 8 CFR 274a.13, Application for employment 
authorization. The proposed amendments to this section removed 
unnecessary references to the supporting documents required for 
submission with applications for employment authorization based on a 
pending asylum application and clarified that such employment 
authorization applications, like all other applications, petitions, or 
requests for immigration benefits, must be filed on the form designated 
by USCIS, in accordance with the form instructions, and along with any 
applicable fees. DHS also proposed to amend 8 CFR 274a.13(a)(1) so that 
USCIS has discretion to grant applications for employment authorization 
filed by asylum applicants pursuant to 8 CFR 274a.12(c)(8), in keeping 
with its discretionary statutory authority under INA 208(d)(2), 8 
U.S.C. 1158(d)(2). To conform the current automatic extension and 
termination provisions to the changes proposed under 8 CFR 208.7(b), 
the proposed amendments to this section also provided that any 
employment authorization granted under 8 CFR 274a.12(c)(8) that was 
automatically extended pursuant 8 CFR 274a.13(d)(1) would automatically 
terminate on the date the asylum officer, IJ, or the BIA denies the 
asylum application.
    8. Amending 8 CFR 274a.14, Termination of employment authorization. 
For purposes of clarity, the proposed amendment to this section added a 
new paragraph at 8 CFR 274a.14(a)(1) that cross-references any 
automatic EAD termination provision elsewhere in DHS regulations, 
including the automatic termination provisions being proposed by this 
rule in 8 CFR 208.7(b).
    9. Effective date: DHS proposed that, with limited exceptions, the 
rules in effect on the date of filing Form I-765, Application for 
Employment Authorization, would govern all initial and renewal 
applications for a (c)(8) EAD based on a pending asylum application and 
a (c)(11) EAD based on a grant of parole after establishing a credible 
fear or reasonable fear of persecution or torture. DHS proposed that 
the criminal provisions and the failure to file the asylum application 
within 1 year of last entry would apply to initial and renewal EAD 
applications pending on the date the final rule is published. In order 
to implement the criminal ineligibility provision, DHS proposed to 
require applicants with a pending initial or renewal (c)(8) EAD on the 
effective date of this rule to appear at an ASC for biometrics 
collection but DHS would not collect the biometrics services fee from 
these aliens. DHS indicated it would provide notice of the place, date 
and time of the biometrics appointment to applicants with pending 
(c)(8) EAD application. DHS also proposed that, if applicable, initial 
(c)(8) EAD applications filed before the effective date of the final 
rule by members of the Rosario class would not be affected by this 
proposed rule. DHS proposed to allow aliens with pending asylum 
applications that have not yet been adjudicated and who already have 
received employment authorization before the final rule's effective 
date to retain their (c)(8) employment authorization until the 
expiration date on their EAD, unless the employment authorization is 
terminated or revoked on the grounds noted in the regulations that 
existed before the effective date of the proposed rule. DHS proposed to 
allow aliens who have already received employment authorization before 
the final rule's effective date under the (c)(11) eligibility category 
based on parole/credible fear to retain that employment authorization 
until their EAD expired, unless the employment authorization was 
terminated or revoked on the grounds noted in the regulations that 
existed before the effective date of the proposed rule. DHS also noted 
that the proposed rule would not impact the adjudication of 
applications to replace lost, stolen, or damaged (c)(8) or (c)(11) 
EADs.

C. Summary of Changes in the Final Rule

    Following careful consideration of public comments, DHS has made 
some changes to the regulatory text proposed in the NPRM.\8\ As 
discussed in detail elsewhere in this preamble, the changes in this 
final rule include the following:
---------------------------------------------------------------------------

    \8\ Asylum Application, Interview, and Employment Authorization 
for Applicants, 84 FR 62374 (proposed Nov. 14, 2019).
---------------------------------------------------------------------------

1. Effective Date
    In the NPRM, DHS proposed to apply the one-year filing deadline and 
criminal provisions to (c)(8) EAD applications pending on the effective 
date of the final rule. In light of the comments and concerns about the 
retroactive application of these provisions to applications pending 
prior to the effective date of this final rule, DHS has determined that 
it will not

[[Page 38537]]

apply any provisions of this rule to applications for employment 
authorization under 8 CFR 274a.12(c)(8) and (c)(11) that are pending on 
the final rule's effective date. Except as noted below, the provisions 
of this rule will apply only to applications for employment 
authorization based on pending asylum applications ((c)(8) initial and 
renewal applications) and applications for employment applications 
based on parole ((c)(11) initial and renewal applications) that are 
postmarked (or if applicable, electronically submitted) on or after the 
effective date; EAD applications that were postmarked before the 
effective date of this final rule, accepted as properly filed by USCIS 
pursuant to 8 CFR 103.2(a)(1) and (a)(2), and are deemed pending on the 
effective date of this final rule, will be adjudicated under the 
respective prior regulations. As the criminal provisions will not be 
applied to aliens with initial and renewal EAD applications under 
(c)(8) or (11) that are pending on the effective date of this final 
rule as initially proposed, DHS will not require these aliens to appear 
for biometrics collection associated with their pending EAD 
applications. This amendment is reflected by the deletion of proposed 
208.7(a)(1)(iv).
    DHS will only apply the termination provisions to aliens who filed 
their applications for employment authorization (initial and renewal) 
on or after the effective date of this final rule, regardless of 
whether their asylum application was filed before or after the 
effective date of the final rule. DHS will only apply the illegal entry 
bar to eligibility for employment authorization to aliens who entered 
or attempted to enter the United States at a place and time other than 
lawfully through a U.S. port of entry on or after the effective date of 
this final rule. This change is reflected in 208.7(a)(1)(iii)(G).
    DHS will only apply the one-year filing deadline provision to 
aliens who filed their asylum application on or after the effective 
date of this rule. This change is reflected in 208.7(a)(1)(iii)(F). DHS 
will only apply the criminal bars for particularly serious crimes and 
serious non-political crimes where the conviction or offense triggering 
the bar occurred on or after the effective date of the rule. DHS will 
apply the aggravated felony bar to any conviction regardless of the 
conviction date. These changes are reflected in 208.7(a)(1)(iii)(A)-
(C).
2. Illegal Entry
    DHS proposed to exclude from (c)(8) EAD eligibility any alien who 
entered or attempted to enter the United States at a place and time 
other than lawfully through a U.S. port of entry, with the limited 
exception of when an alien demonstrates that he or she: (1) Presented 
himself or herself without delay to the Secretary of Homeland Security 
(or his or her delegate); (2) indicated to a DHS agent or officer an 
intent to apply for asylum or expressed a fear of persecution or 
torture; and (3) otherwise had good cause for the illegal entry or 
attempted entry. In the final rule, DHS is clarifying that to meet the 
first prong of this three-part exception, the alien must present 
himself or herself without delay, but no later than 48 hours after the 
entry or attempted entry, to the Secretary or his or her delegate.
3. One-Year Filing Deadline
    DHS is emphasizing the importance of the statutory one-year filing 
in this final rule by providing that aliens who fail to file their 
asylum applications within 1 year of their arrival into the United 
States will be ineligible for a (c)(8) EAD while their asylum 
application is pending until an asylum officer or an IJ has determined 
that the alien meets an exception under INA section 208(a)(2)(D), 8 
U.S.C. 1158(a)(2)(D). However, DHS is making a clarifying amendment to 
8 CFR 208.7(a)(1)(iii)(F) to replace the word ``beyond'' with ``after'' 
to more clearly indicate that aliens are not eligible for a (c)(8) EAD 
if the alien filed his or her asylum application after the statutory 
one-year filing deadline. DHS is also amending 8 CFR 
208.7(a)(1)(iii)(F) to clarify that the one-year filing requirement 
does not apply if the alien was a UAC on the date their asylum 
application was filed. For additional discussion, see section IV. 
Discussion of the Final Rule, ] B. One-Year Filing Deadline.
4. Criminal Bars to Eligibility
    In the NPRM, DHS proposed to exclude from eligibility for 
employment authorization aliens who have: (1) Been convicted of any 
aggravated felony as defined under section 101(a)(43) of the INA, 8 
U.S.C. 1101(a)(43); (2) been convicted of any felony in the United 
States or serious non-political crime outside the United States; or (3) 
been convicted in the United States of certain public safety offenses 
involving domestic violence or assault; child abuse or neglect; 
possession or distribution of controlled substances; or driving or 
operating a motor vehicle under the influence of alcohol or drugs, 
regardless of how the offense is classified by the state or local 
jurisdiction. DHS proposed that it would consider, on a case-by-case 
basis, whether aliens who have been convicted of any non-political 
foreign criminal offense, or have unresolved arrests or pending charges 
for any non-political foreign criminal offenses, warrant a favorable 
exercise of discretion. DHS requested public comment on whether these 
and additional crimes should be included as bars to employment 
authorization.
    DHS carefully considered the public comments received, including 
those suggesting that bars to (c)(8) EAD eligibility should align with 
bars to asylum. DHS disagrees that (c)(8) EAD bars must align with 
asylum bars. DHS recognizes that DOJ and DHS have proposed a separate 
joint rule enumerating similar criminal bars to asylum, and has chosen 
to adopt the bars in that rule, if finalized, based on the similarity 
to offenses initially proposed in this rulemaking and the similar 
impact of protecting public safety by preventing aliens with 
significant criminal histories from obtaining a discretionary 
benefit.\9\ The bars proposed in the DOJ-DHS joint NPRM will replace 
the public safety offenses and arrests DHS initially proposed in this 
rulemaking. DHS also revised the bar relating to serious non-political 
crimes committed outside the United States to align with the statutory 
bar to asylum and to reflect that a serious non-political crime does 
not require a conviction.\10\ These changes are reflected at 
208.7(a)(1)(iii)(B)-(D). For additional discussion, see section IV. 
Discussion of the Final Rule, ] C. Criminal Bars to Eligibility.
---------------------------------------------------------------------------

    \9\ See Proposed rule: Procedures for Asylum and Bars to Asylum 
Eligibility, 84 FR 69640 (Dec. 19, 2019). By reference to 8 CFR 
208.13(c), DHS does not intend that these criminal bars incorporate 
INA 208(b)(2)(A)(1)(i), (iv), or (v) (as referenced via 8 CFR 
208.13(c)(1)), or 8 CFR 208.13(c)(2)(C), (E), or (F).
    \10\ An alien is barred from asylum if there are serious reasons 
for believing that the alien has committed a serious nonpolitical 
crime outside of the United States. See INA section 
208(b)(2)(A)(iii) of the INA, 8 U.S.C. 1158(b)(2)(A)(iii).
---------------------------------------------------------------------------

5. Applicant-Caused Delays
    In the NPRM, DHS proposed that any delay in the asylum adjudication 
requested or caused by the applicant that was outstanding or had not 
been remedied by the time USCIS adjudicates the alien's (c)(8) EAD 
application would result in denial of the EAD application. DHS has 
considered whether the alien would have sufficient notice of the EAD 
adjudication date, which USCIS proposed to use to determine EAD 
eligibility, and determined that the alien would have little control 
over the date of adjudication. Therefore, in this final rule, DHS has 
amended the provision to provide that any delay requested or caused by 
the applicant that is

[[Page 38538]]

outstanding or has not been remedied at the time the initial (c)(8) EAD 
application is filed will result in the denial of the EAD application. 
Unlike the date of adjudication, the alien has control over the date of 
filing. DHS is making this change in response to public comments 
proposing that DHS consider alternative ways to protect due process and 
gain efficiencies in the adjudication of the asylum application DHS 
believes this modification will provide the applicant with certainty of 
their eligibility requirements under the applicant-caused delay 
provision of the rule, while disincentivizing applicants from 
prolonging the adjudication of their asylum application.
    Further, DHS provided examples of what may constitute an applicant-
caused delay in the NPRM but did not clearly indicate whether 
applicant-caused delays would affect applications for initial (c)(8) 
EADs or renewal EADs or both. DHS is clarifying that applicant-caused 
delays only apply to initial applications for (c)(8) EADs by adding the 
word ``initial'' to 8 CFR 208.7(a)(1)(iv).

D. Summary of Costs, Benefits, and Transfer Payments

    This rule amends the (c)(8) EAD process by extending the period 
that an asylum applicant must wait in order to be employment 
authorized, and by disincentivizing asylum applicants from causing 
delays in the adjudication of their asylum applications. DHS has 
considered that some asylum applicants may seek unauthorized employment 
without possessing a valid employment authorization document, but does 
not believe this should preclude the Department from making procedural 
adjustments to how aliens gain access to employment authorization based 
on a pending asylum application. The provisions herein seek to reduce 
the incentives for aliens to file frivolous, fraudulent, or otherwise 
non-meritorious asylum applications primarily to obtain employment 
authorization and remain for years in the United States for economic 
purposes, and to disincentivize criminal behavior and illegal entry 
into the United States.
    The quantified maximum population this rule will apply to is about 
290,000 annually. DHS assessed the potential impacts from this rule 
overall, as well as the individual provisions, and provided 
quantitative estimates of such impacts where possible and relevant. For 
the provisions involving biometrics and the removal of recommended 
approvals, the quantified analysis covers the entire population. For 
the change to a 365-day waiting period to file an EAD, the quantified 
analysis also covers the entire population; however, DHS relies on 
historical data to estimate the costs for affirmative cases and certain 
assumptions to provide a maximum potential estimate for the remaining 
affected population. For the provisions that will potentially end some 
EADs early, DHS estimated only the portion of the costs attributable to 
affirmative cases because DHS has no information available to estimate 
the number of defensively-filed cases.
    DHS provides a qualitative analysis of the provisions to terminate 
EADs earlier for asylum cases denied/dismissed by an IJ, to remove 
employment eligibility for asylum applicants under the (c)(11) 
category, and to bar employment authorization for asylum applicants 
with certain criminal history, who did not enter at a U.S. port of 
entry, or who, with certain exceptions, did not file for asylum within 
one year of their last arrival to the United States. As described in 
more detail in the unquantified impacts section, DHS does not have the 
data necessary to quantify and monetize the impacts of these 
provisions.
    To take into consideration uncertainty and variation in the wages 
that EAD holders earn, all of the monetized costs rely on a lower and 
upper bound, benchmarked to a ``prevailing'' minimum wage and a 
national average wage, which generates a range. Specific costs related 
to the provisions are summarized in Table 1. For the provisions in 
which impacts could be monetized, the single midpoint figure for the 
range capturing a low and high wage rate is presented.\11\
---------------------------------------------------------------------------

    \11\ The populations reported in Table 1 reflect the maximum 
population that could be covered by each provision. Some of the 
populations that would incur monetized impacts are slightly 
different due to technical adjustments. DHS notes that the maximum 
population is smaller than that in the NPRM baseline because, in 
this final rule, DHS will not apply any provisions of this rule to 
applications for employment authorization based on pending asylum 
applications ((c)(8)) or pending EAD applications based on parole 
((c)(11)) that are pending before or on the effective date of this 
final rule. In the NPRM, the pending pool was 14,451 at the time the 
data was obtained. The pending population at any point in time can 
vary due to many factors. In the NPRM, the pending population was 
not slated to pay the biometric services fee, hence the difference 
in cost in this final rule only accrues to the time and travel-
related costs of submitting biometrics. Based on an estimated 12,805 
persons in the pending pool who would submit biometrics under the 
original proposal, the difference in cost for the rule in the first 
year the rule will take effect at the low and upper wage bounds are 
$921,389 and $2,078,200, respectively. DHS also removed qualitative 
cost discussion for pending EAD applicants who would not be subject 
to the criteria proposed in the NPRM.

                 Table 1--Summary of Costs and Transfers
------------------------------------------------------------------------
                                      Annual costs and transfers (mid-
         Provision summary                         point)
------------------------------------------------------------------------
I. Quantified:
    365-day EAD filing wait period  1. Population: 39,000.
     (for DHS affirmative asylum    2. Cost: $542.7 million (quantified
     cases and partial estimates     impacts for 39,000 of the 153,381
     for DHS referrals to DOJ).      total population).
                                    3. Reduction in employment tax
                                     transfers: $83.2 million
                                     (quantified impacts for 39,000 of
                                     the 153,381).
                                    4. Cost basis: Annualized
                                     equivalence cost.
                                    5. Summary: Lost compensation for a
                                     portion of DHS affirmative asylum
                                     cases who will have to wait longer
                                     to earn wages under the rule; nets
                                     out cost-savings for aliens who
                                     will no longer file under the rule;
                                     includes partial estimate of DHS
                                     referral cases to DOJ-EOIR. It does
                                     not include impacts for defensively-
                                     filed cases.
                                    DHS emphasizes that the costs of the
                                     rule in terms of lost or deferred
                                     labor readings will potentially
                                     depend on the extent of surplus
                                     labor in the labor market. In the
                                     current environment with COVID-19-
                                     related layoffs and unemployment,
                                     there is the potential that the
                                     impacts will be mainly transfers
                                     and less in terms of costs.
    365-day EAD filing wait period  1. Population: 114,381.
     (for the residual population). 2. Cost: $2.39 billion (quantified
                                     impacts for the remaining 114,381
                                     of the 153,381 total population).
                                    3. Reduction in employment tax
                                     transfers: $366.2 million
                                     (quantified impacts for the
                                     remaining 114,381 of the 153,381).
                                    4. Cost basis: Annualized
                                     equivalence cost.

[[Page 38539]]

 
                                    5. Summary: Lost compensation for
                                     the population of approved annual
                                     EADs for which DHS does not have
                                     data to make a precise cost
                                     estimate. The costs reported are a
                                     maximum because the potential
                                     impact is based on the maximum
                                     impact of 151 days; in reality
                                     there will be lower-cost segments
                                     to this population and filing-cost
                                     savings as well.
    Biometrics requirement........  1. Population for initial and
                                     renewal EADs: 290,094.
                                    2. Cost: $36.3 million.
                                    3. Reduction in employment tax
                                     transfers: None.
                                    4. Cost basis: Annualized
                                     equivalence cost.
                                    5. Summary: For initial and renewal
                                     EADs, there will be time-related
                                     opportunity costs plus travel costs
                                     of submitting biometrics, as well
                                     as $85 fee for (c)(8) I-765 initial
                                     and renewal populations subject to
                                     the biometrics and fee
                                     requirements. A small filing time
                                     burden to answer additional
                                     questions and read associated form
                                     instructions in the I-765 is
                                     consolidated in this provision's
                                     costs.
    Eliminate recommended           1. Population: 1,930 annual.
     approvals.                     2. Cost: $13.9 million.
                                    3. Reduction in employment tax
                                     transfers: $2.13 million.
                                    4. Cost basis: Annualized
                                     equivalence cost.
                                    5. Summary: Delayed earnings and tax
                                     transfers that would have been
                                     earned for an average of 52
                                     calendar days earlier with a
                                     recommended approval.
    Terminate EADs if asylum        1. Population: 575 (current and
     application denied/dismissed    future).
     (DHS).                         2. Cost: $31.8 million.
                                    3. Reduction in employment tax
                                     transfers: $4.9 million.
                                    4. Cost basis: Maximum costs of the
                                     provision, which would apply to the
                                     first year the rule takes effect.
                                    5. Summary: Forgone earnings and tax
                                     transfers from ending EADs early
                                     for denied/dismissed DHS
                                     affirmative asylum applications.
                                     This change will affect EADs that
                                     are currently valid and EADs for
                                     affirmative asylum applications in
                                     the future that will not be
                                     approved. DHS acknowledges that as
                                     a result of this change, businesses
                                     that have hired such workers will
                                     incur labor turnover costs earlier
                                     than without this rule.
II. Unquantified:
    Clarify employment eligibility  a. Population: 13,000.
     under (c)(11) category for I-  b. Cost: Delayed/forgone earnings.
     765.                           c. Cost basis: N/A.
                                    d. Summary: DHS does not know how
                                     many of the actual population will
                                     apply for an EAD via the (c)(8) I-
                                     765, but the population would be
                                     zero at a minimum and 13,000 at a
                                     maximum, with a mid-point of 6,500.
                                     The population would possibly incur
                                     delayed earnings and tax transfers
                                     by being subject to the 365-day EAD
                                     waiting period (it is noted that
                                     this population would also incur
                                     costs under the biometrics
                                     provision, above), or lost earnings
                                     if they do not apply for a (c)(8)
                                     EAD.
    Criminal activity/illegal       DHS is unable to estimate the number
     entry bar.                      of aliens impacted that will no
                                     longer be eligible to receive an
                                     EAD while their asylum applications
                                     are being adjudicated. Impacts
                                     would involve forgone earnings and
                                     potentially lost taxes.
    One-year filing deadline......  Some portion of the 8,326 annual
                                     filing bar referrals will no longer
                                     be eligible to receive an EAD while
                                     their asylum applicants are being
                                     adjudicated. Impacts would comprise
                                     deferred/delayed or forgone earning
                                     and potentially lost taxes. DHS
                                     does not have data on filing bar
                                     cases referred to DOJ-EOIR.
    Terminate EADs if asylum        DOJ-EOIR has denied an average of
     application denied/dismissed    almost 15,000 asylum cases
     (DOJ-EOIR).                     annually; however, DHS does not
                                     have data on the number of such
                                     cases that have an EAD and are
                                     employed. Costs would involve
                                     forgone earnings and tax transfers
                                     for any such EADs that would be
                                     terminated earlier than they
                                     otherwise would, as well as forgone
                                     future earnings and tax transfers.
                                     DHS acknowledges that as a result
                                     of this change businesses that have
                                     hired such workers will incur labor
                                     turnover costs earlier than without
                                     this rule. Businesses unable to
                                     replace these workers will also
                                     incur productivity losses.
------------------------------------------------------------------------

    For those provisions that affect the time an asylum applicant is 
employed, the impacts of this rule would include both distributional 
effects (which are transfers) and costs.\12\ The transfers would fall 
on the asylum applicants who would be delayed in entering the U.S. 
labor force or who would leave the labor force earlier than under 
current regulations. The transfers would be in the form of lost 
compensation (wages and benefits). A portion of this lost compensation 
might be transferred from asylum applicants to others who are currently 
in the U.S. labor force or eligible to work lawfully, possibly in the 
form of additional work hours or the direct and indirect added costs 
associated with overtime pay. A portion of the effects of this rule 
would also be borne by companies that would have hired the asylum 
applicants had they been in the labor market earlier or who would have 
continued to employ asylum applicants had they been in the labor market 
longer, but were unable to find available replacement labor. These 
companies will incur a cost, as they will be losing the productivity 
and potential profits the asylum applicant would have provided. 
Companies may also incur opportunity costs by having to choose the next 
best alternative to the immediate labor the asylum applicant would have 
provided and by having to

[[Page 38540]]

pay workers to work overtime hours. DHS does not know what this next 
best alternative may be for those companies. As a result, DHS does not 
know the portion of overall effects of this rule that are transfers or 
costs, but estimates the maximum monetized impact of this rule in terms 
of delayed/lost labor compensation. If all companies are able to easily 
find reasonable labor substitutes for the positions the asylum 
applicant would have filled, they will bear little or no costs, so 
$4.459 billion (annualized at 7 percent) will be transferred from 
asylum applicants to workers currently in the labor force or induced 
back into the labor force (we assume no tax losses as a labor 
substitute was found). Conversely, if companies are unable to find 
reasonable labor substitutes for the position the asylum applicant 
would have filled then $4.459 billion 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 taxes. DHS estimates $682.5 million as the maximum 
decrease in employment tax transfers from companies and employees to 
the Federal Government.
---------------------------------------------------------------------------

    \12\ 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.
---------------------------------------------------------------------------

    Because the biometrics requirement implemented in this rule is a 
cost to applicants and not a transfer, its minimum annual value of 
$27.08 million is the minimum cost of the rule. The range of impacts 
described by these two scenarios, plus the consideration of the 
biometrics costs, are summarized in Table 2 below (Table 2A and 2B 
capture the impacts a 3 and 7 percent rates of discount, respectively).
    The two scenarios described above represent the estimated endpoints 
for the range of monetized impacts resulting from the provisions that 
affect the amount of time an asylum applicant is employed. However, DHS 
is aware that the outbreak of COVID-19 will likely impact these 
estimates in the short run.\13\ As discussed above, the analysis 
presents a range of impacts, depending on if companies are able to find 
replacement labor for the jobs asylum applicants would have filled. In 
April 2020, the unemployment rate increased by 10.3 percentage points 
to 14.7 percent.\14\ This marks the highest rate and the largest over-
the-month increase in the history of the series (seasonally adjusted 
data are available back to January 1948). By comparison, the 
unemployment rate for the same month in 2019 was 3.6%.\15\ DHS assumes 
that during the COVID-19 pandemic, with additional available labor 
nationally, companies are more likely to find replacement labor for the 
job the asylum applicant would have filled.\16\ Thus, in the short-run 
during the pandemic and the ensuing economic recovery, the lost 
compensation to asylum applicants as a result of this rule is more 
likely to take the form of transfer payments from asylum applicants to 
other available labor, than it is to be costs to companies for lost 
productivity because they were unable to find replacement labor. DHS 
notes that although the pandemic is widespread, the severity of its 
impacts varies by locality, and there may be structural impediments to 
the national and local labor market. Consequently, it is not clear to 
what extent the distribution of asylum applicants overlaps with areas 
of the country that will be more or less impacted by the COVID-19 
pandemic. Accordingly, DHS cannot estimate with confidence to what 
extent the impacts will be transfers instead of costs.
---------------------------------------------------------------------------

    \13\ On March 13, 2020, the President declared that the COVID-19 
outbreak in the United States constitutes a national emergency. See 
`Proclamation on Declaring a National Emergency Concerning the Novel 
Coronavirus Disease (COVID-19) Outbreak,'' available at https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/.
    \14\ Department of Labor, Bureau of Labor Statistics, The 
Employment Situation--April 2020. Available at: https://www.bls.gov/news.release/archives/empsit_05082020.pdf.
    \15\ Department of Labor, Bureau of Labor Statistics, The 
Employment Situation--April 2020, Employment Situation Summary Table 
A. Household data, seasonally adjusted. Available at: https://www.bls.gov/news.release/archives/empsit_05082020.pdf.
    \16\ The Congressional Budget Office estimates the unemployment 
rate is expected to average close to 14 percent during the second 
quarter, See: CBO's Current Projections of Output, Employment, and 
Interest Rates and a Preliminary Look at Federal Deficits for 2020 
and 2021, https://www.cbo.gov/publication/56335, April 24, 2020.
---------------------------------------------------------------------------

    DHS's assumption that all asylum applicants with an EAD are able to 
obtain employment (discussed in further detail later in the analysis), 
also does not reflect impacts from the COVID-19 pandemic. It is not 
clear what level of reductions the pandemic will have on the ability of 
EAD holders to find jobs (as jobs are less available), or how DHS would 
estimate such an impact with any precision given available data. 
Consequently, the ranges projected in this analysis regarding lost 
compensation are expected to be an overestimate, especially in the 
short-run.

                                            Table 2A--Summary of Range of Monetized Annualized Impacts at 3%
                                                                      [$ millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Scenario: No replacement labor    Scenario: All asylum applicants      Primary
                                                                       found for asylum applicants        replaced with other workers   ----------------
                                                                   --------------------------------------------------------------------- (average of the
              Category                         Description                                                                                 highest high
                                                                                                                                          and the lowest
                                                                        Low wage         High wage         Low wage        High wage      low, for each
                                                                                                                                               row)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transfers:
    Transfers--Compensation.........  Compensation transferred                 $0.0             $0.0          $1,473.2         $4,459.0         $2,229.5
                                       from asylum applicants to
                                       other workers (provisions:
                                       365-day wait + end EADs
                                       early + end recommended
                                       approvals).
    Transfers--Taxes................  Lost employment taxes paid              225.5            682.4               0.0              0.0            341.2
                                       to the Federal Government
                                       (provisions: 365-day wait +
                                       end EADs early + end
                                       recommended approvals).
Costs:
    Cost Subtotal--Biometrics.......  Biometrics Requirements.....             27.1             45.5              27.1             45.5            36.35
    Cost Subtotal--Lost Productivity  Lost compensation used as             1,473.2          4,459.0               0.0              0.0          2,229.5
                                       proxy for lost productivity
                                       to companies (provisions:
                                       365-day wait + end EADs
                                       early + end recommended
                                       approvals).
                                                                   -------------------------------------------------------------------------------------

[[Page 38541]]

 
        Total Costs.................  ............................          1,500.2          4,504.5              27.1             45.5          2,265.8
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                            Table 2B--Summary of Range of Monetized Annualized Impacts at 7%
                                                                      [$ millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Scenario: No replacement labor    Scenario: All asylum applicants      Primary
                                                                       found for asylum applicants        replaced with other workers   ----------------
                                                                   --------------------------------------------------------------------- (average of the
              Category                         Description                                                                                 highest high
                                                                                                                                          and the lowest
                                                                        Low wage         High wage         Low wage        High wage      low, for each
                                                                                                                                               row)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transfers:
    Transfers--Compensation.........  Compensation transferred                $0.00            $0.00          $1,473.3         $4,459.5         $2,229.7
                                       from asylum applicants to
                                       other workers (provisions:
                                       365-day wait + end EADs
                                       early + end recommended
                                       approvals).
    Transfers--Taxes................  Lost employment taxes paid              225.5            682.5                 0                0            341.2
                                       to the Federal Government
                                       (provisions: 365-day wait +
                                       end EADs early + end
                                       recommended approvals).
Costs:
    Cost Subtotal--Biometrics.......  Biometrics Requirements.....             27.1             45.5              27.1             45.5             36.3
    Cost Subtotal--Lost Productivity  Lost compensation used as             1,473.3          4,459.5               0.0              0.0          2,229.7
                                       proxy for lost productivity
                                       to companies (provisions:
                                       365-day wait + end EADs
                                       early + end recommended
                                       approvals).
                                                                   -------------------------------------------------------------------------------------
        Total Costs.................  ............................          1,500.4          4,505.0              27.1             45.5          2,266.1
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As required by Office of Management and Budget (OMB) Circular A-4, 
Table 3 presents the prepared A-4 accounting statement showing the 
impacts associated with this regulation:

                                                          Table 3--OMB A-4 Accounting Statement
                                                                   [$ millions, 2019]
                                                             [Period of analysis: 2020-2029]
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
Category                                                  Primary                 Minimum         Maximum                   Source citation
                                                         estimate                   estimate        estimate  (RIA, preamble, etc.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits:
    Monetized Benefits......................            (7%)             N/A             N/A             N/A  RIA.
                                                        (3%)             N/A             N/A             N/A
                                             ----------------------------------------------------------------
    Annualized quantified, but un-monetized,                N/A                          N/A             N/A  RIA.
     benefits.
                                             ----------------------------------------------------------------
    Unquantified Benefits...................   The benefits potentially realized by the rule are qualitative  RIA.
                                                     and accrue to a streamlined system for employment
                                                 authorization for asylum seekers that will reduce fraud,
                                                 improve overall integrity and operational efficiency, and
                                               prioritize aliens with bona fide asylum claims. These impacts
                                               stand to provide qualitative benefits to asylum seekers, the
                                                    communities in which they reside and work, the U.S.
                                                Government, and society at large. The rule aligns with the
                                               Administration's goals of strengthening protections for U.S.
                                               workers in the labor market. The biometrics requirement will
                                                       enhance identity verification and management.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Costs:
    Annualized monetized costs (discount                (7%)        $2,266.1          $27.08        $4,505.0  RIA.
     rate in parenthesis).                              (3%)         2,265.8           27.08         4,504.5  RIA.
                                             ----------------------------------------------------------------
    Annualized quantified, but un-monetized,                N/A                          N/A             N/A  RIA.
     costs.
                                             ----------------------------------------------------------------

[[Page 38542]]

 
    Qualitative (unquantified) costs........    In cases where companies cannot find reasonable substitutes   RIA.
                                                 for the labor the asylum applicants would have provided,
                                                 affected companies would also lose profits from the lost
                                               productivity. In all cases, companies would incur opportunity
                                                  costs by having to choose the next best alternative to
                                              immediately filling the job the pending asylum applicant would
                                                 have filled. There may be additional opportunity costs to
                                                              employers such as search costs.
                                                Estimates of costs that will involve DOJ-EOIR defensively-
                                               filed asylum applications and DHS-referrals could not be made
                                                due to lack of data. Potential costs would involve delayed/
                                                               deferred or forgone earnings.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                There would also be delayed or forgone labor income for EAD
                                                   applicants impacted by the criminal and 1-year filing
                                                provisions, renewal applicants, transfers from the (c)(11)
                                               group, and filing bar cases, all of whom would be subject to
                                                  some of the criteria being implemented in this rule. In
                                                addition, such impacts could also affect those who would be
                                                  eligible currently for an EAD, or have such eligibility
                                               terminated earlier, but would be ineligible for an EAD under
                                                                         the rule.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   Delaying and/or eliminating employment authorization
                                                eligibility would have a negative impact on asylum seekers'
                                                  welfare. The removal or delay of some workers regarding
                                                 employment could have an adverse effect in terms of their
                                                                     health insurance.
--------------------------------------------------------------------------------------------------------------------------------------------------------
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%)         2,229.7            0.00         4,459.5  RIA.
     Compensation.                                      (3%)         2,229.5            0.00         4,459.0
                                             ----------------------------------------------------------------
    From whom to whom?......................     Compensation transferred from asylum applicants to other     RIA.
                                                 workers (provisions: 365-day wait + end EADs early + end
                                                  recommended approvals). Some of the deferred or forgone
                                                  earnings could be transferred from asylum applicants to
                                              workers in the U.S. labor force or 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; these could
                                                 involve burdens to asylum applicants' personal private or
                                                  familial support system, but could also involve public,
                                                private, or charitable benefits-granting agencies and non-
                                                            governmental organizations (NGOs).
                                             ----------------------------------------------------------------
    Annualized monetized transfers: Taxes...            (7%)           341.2            0.00           682.5  RIA.
                                                        (3%)           341.2            0.00           682.4
                                             ----------------------------------------------------------------
    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 (provisions: 365-
                                                day wait + end EADs early + end recommended approvals) that
                                                                    are not quantified.
--------------------------------------------------------------------------------------------------------------------------------------------------------


 
                                                                                                                        Source citation (RIA, preamble,
              Category                                                    Effects                                                    etc.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Effects on state, local, and/or       DHS does not know how many workers will be removed from the labor force due to   RIA.
 tribal governments.                   this rule. There may also be a reduction in state and local tax revenue,
                                       including state, and local income tax revenue. Budgets and assistance networks
                                       that provide benefits to asylum seekers could be impacted negatively if asylum
                                       applicants request additional support.
Effects on small businesses.........  This rule does not directly regulate small entities, but has indirect costs on   RFA.
                                       small entities. DHS acknowledges that ending EADs linked to denied DHS
                                       affirmative asylum claims and EADs linked to denied asylum cases under DOJ-
                                       EOIR purview will result in businesses that have hired such workers incurring
                                       labor turnover costs earlier than without this rule. Such small businesses may
                                       also incur costs related to a difficulty in finding workers that may not have
                                       occurred without this rule.
Effects on wages....................  None...........................................................................  RIA.

[[Page 38543]]

 
Effects on growth...................  None...........................................................................  RIA.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As will be explained in greater detail later, the benefits 
potentially realized by the rule are qualitative. This rule will reduce 
the incentives for aliens to file frivolous, fraudulent, or otherwise 
non-meritorious asylum applications intended primarily to obtain 
employment authorization or other forms of non-asylum-based relief from 
removal, thereby allowing aliens with bona fide asylum claims to be 
prioritized. A streamlined system for employment authorization for 
asylum seekers will reduce fraud and improve overall integrity and 
operational efficiency. DHS also believes these administrative reforms 
will encourage aliens to follow lawful processes to immigrate to the 
United States.\17\ These effects stand to provide qualitative benefits 
to asylum seekers, communities where they live and work, the U.S. 
government, and society at large.
---------------------------------------------------------------------------

    \17\ The rule may also provide less incentive for those pursuing 
unauthorized employment in the United States to use the asylum 
application process to move into authorized employment status.
---------------------------------------------------------------------------

    The rule also aligns with the Administration's goals of 
strengthening protections for U.S. workers in the labor market. Several 
employment-based visa programs require U.S. employers to test the labor 
market, comply with recruiting standards, agree to pay a certain wage 
level, and agree to comply with standards for working conditions before 
they can hire an alien to fill the position. These protections do not 
exist in the (c)(8) EAD process. While this rule will not implement 
labor market tests for the (c)(8) EAD process, it will put in place 
mechanisms to reduce fraud and deter those without bona fide claims for 
asylum from filing applications for asylum primarily to obtain 
employment authorization or other, non-asylum-based forms of relief 
from removal. DHS believes these mechanisms will protect U.S. workers.
    The biometrics requirement will provide a benefit to the U.S. 
government by enabling DHS to know with greater certainty the identity 
of aliens requesting EADs in connection with an asylum application. The 
biometrics requirement also will allow DHS to conduct criminal history 
background checks to confirm the absence of a disqualifying criminal 
offense, to vet the applicant's biometrics against government databases 
(for example, FBI databases) to determine if he or she matched any 
criminal activity on file, to verify the applicant's identity, and to 
facilitate card production.
    Along with the changes summarized above and discussed in detail in 
the preamble and regulatory impact sections of this rule, DHS will 
modify and clarify existing regulations dealing with technical and 
procedural aspects of the asylum interview process, USCIS authority 
regarding asylum, applicant-caused delays in the process, and the 
validity period for EADs. DHS discusses these provisions in the 
unquantified impacts section of the analysis.

II. Purpose of This Rule

    On April 29, 2019, the White House issued a Presidential Memorandum 
(PM) entitled, ``Presidential Memorandum on Additional Measures to 
Enhance Border Security and Restore Integrity to Our Immigration 
System.'' \18\ The White House, referencing the President's earlier 
Proclamations, noted that ``our immigration and asylum system is in 
crisis as a consequence of the mass migration of aliens across our 
southern border'' and that the ``emergency continues to grow 
increasingly severe. In March, more than 100,000 inadmissible aliens 
were encountered seeking entry into the United States. Many aliens 
travel in large caravans or other large organized groups, and many 
travel with children. The extensive resources required to process and 
care for these individuals pulls U.S. Customs and Border Protection 
(CBP) personnel away from securing our Nation's borders. Additionally, 
illicit organizations benefit financially by smuggling aliens into the 
United States and encouraging abuse of our asylum procedures. This 
strategic exploitation of our Nation's humanitarian programs undermines 
our Nation's security and sovereignty. The purpose of this memorandum 
is to strengthen asylum procedures to safeguard our system against 
rampant abuse of our asylum process.'' \19\
---------------------------------------------------------------------------

    \18\ Presidential Memorandum on Additional Measures to Enhance 
Border Security and Restore Integrity to Our Immigration System, 
2019 Daily Comp. Pres. Doc. 251 (Apr. 29, 2019).
    \19\ Id.
---------------------------------------------------------------------------

    The PM directs the Secretary of Homeland Security to propose 
regulations to bar aliens who have entered or attempted to enter the 
United States unlawfully from receiving employment authorization prior 
to being approved for relief and to immediately revoke the employment 
authorization of aliens who are denied asylum or become subject to a 
final order of removal.
    Through this rule, DHS is addressing, in part, the national 
emergency and humanitarian crisis at the border \20\ by (1) reducing 
incentives for aliens to file frivolous, fraudulent, or otherwise non-
meritorious asylum applications intended primarily to obtain employment 
authorization, or other forms of non-asylum based relief, and remain 
for years in the United States due to the backlog of asylum cases, and 
(2) disincentivizing illegal entry into the United States by providing 
that, on or after August 25, 2020, any alien who enters or attempts to 
enter the United States at a place and time other than lawfully through 
a U.S. port of entry will be ineligible to receive a (c)(8) EAD, with 
limited exceptions. DHS is also making administrative reforms that will 
ease some of the administrative burdens USCIS faces in accepting and 
adjudicating applications for asylum and related employment 
authorization.
---------------------------------------------------------------------------

    \20\ Proclamation 9844, Declaring a National Emergency 
Concerning the Southern Border of the United States, 2019 2019 Daily 
Comp. Pres. Doc. 80 (Feb. 15, 2019).
---------------------------------------------------------------------------

    As explained more fully below, DHS believes these reforms will help 
mitigate the crisis that our immigration and asylum systems are facing 
as a consequence of the mass migration of inadmissible aliens across 
our southern border,\21\ and improve the current asylum backlog, 
helping to clear the way for meritorious asylum applications to be 
received, processed, and adjudicated more quickly. This will give bona 
fide asylum seekers the certainty they deserve but are currently 
deprived of because of the flood of frivolous, fraudulent, or otherwise 
non-meritorious asylum claims clogging the system. The extensive 
resources required to process and care for these aliens pulls personnel 
away from processing bona fide asylum claims and securing our Nation's 
borders. Additionally, illicit organizations benefit financially by 
smuggling aliens into the United States and encouraging abuse of our 
asylum procedures. This strategic exploitation of our Nation's

[[Page 38544]]

humanitarian programs undermines our Nation's security and 
sovereignty.\22\ These interests, when weighed against any reliance 
interest on behalf of impacted aliens, are greater, particularly 
because of the large increase in number of those seeking asylum at the 
border, which is operationally unsustainable for DHS long term.
---------------------------------------------------------------------------

    \21\ https://www.whitehouse.gov/presidential-actions/presidential-memorandum-additional-measures-enhance-border-security-restore-integrity-immigration-system/.
    \22\ Id.
---------------------------------------------------------------------------

    It is the policy of the Executive Branch to manage humanitarian 
immigration programs in a safe, orderly manner that provides access to 
relief or protection from removal from the United States for aliens who 
qualify for such relief or protection, and that promptly denies 
benefits to and facilitates the removal of those who do not.\23\ This 
rulemaking is part of a series of reforms DHS is undertaking, in 
coordination with DOJ-EOIR, to improve and streamline the asylum 
system, so that those with bona fide asylum claims can have their 
claims decided quickly and, if granted, extended the protections that 
the United States has offered for over a century, including employment 
authorization, to aliens legitimately seeking refuge from persecution.
---------------------------------------------------------------------------

    \23\ Id.
---------------------------------------------------------------------------

A. Efforts to Reform the Asylum System

    The Refugee Act of 1980, Public Law 96-212, 94 Stat. 102, was the 
first comprehensive legislation to establish the modern refugee and 
asylum system.\24\ Congress passed the Refugee Act mainly to replace 
the ad hoc process that existed at the time for admitting refugees and 
to provide a more uniform refugee and asylum process.\25\ The focus of 
the Refugee Act was reforming the overseas refugee program. The Refugee 
Act did not explicitly address how the United States should reform the 
asylum process or handle sudden influxes of asylum seekers, such as 
subsequently occurred with the Mariel boatlift--a mass influx of Cuban 
citizens and nationals, many of whom had criminal histories, to the 
United States in 1980.\26\ Congress also provided that any alien who 
had applied for asylum before November 1, 1979, had not been granted 
asylum, and did not have a final order of deportation or exclusion, 
could obtain employment authorization.\27\
---------------------------------------------------------------------------

    \24\ Congress added the definition of refugee under section 
101(a)(42) of the Act, 8 U.S.C. 1101(a)(42), based on the 1967 
United Nations (U.N.) Protocol relating to the Status of Refugees, 
19 U.S.T. 6223, TIAS No. 6577, 606 U.N.T.S. 267 (1967), which the 
United States ratified in November of 1968. The Refugee Act also 
made withholding of removal mandatory, authorized adjustment of 
status for asylees and refugees, expanded the funding available for 
domestic refugee assistance services, and barred eligibility for 
asylum for aliens who were convicted of a serious crime, firmly 
resettled, persecutors, or a danger to the security of the United 
States.
    \25\ See Public Law 96-212, 94 Stat. 102, Sec.  101(b) and S. 
Rep. 96-256 (July 23, 1979), at pp. 141-143. Earlier treatment of 
refugees came from the Displaced Persons Act of 1948, 62 Stat. 1009 
(as amended), the Refugee Relief Act of 1953, 67 Stat. 400, and the 
Refugee-Escapee Act of 1957, 71 Stat. 643.
    \26\ See, e.g., Immigration Reform and Control Act of 1982: 
Joint Hearing on H.R. 5872 and S. 2222 Before the Subcommittee on 
Immigration, Refugees, and International Law, Committee on the 
Judiciary, House of Representatives, and Subcommittee on Immigration 
and Refugee Policy, Committee on the Judiciary, 97th Cong. 2nd Sess, 
326-328 (Apr. 1 and 20, 1982) (statement of Attorney General William 
French).
    \27\ 94 Stat. 102 at sec. 401(b) and (c).
---------------------------------------------------------------------------

    In 1980, the then-INS issued an interim regulation implementing the 
asylum provisions of the Refugee Act.\28\ This regulation provided that 
an INS district director could authorize an applicant for asylum to 
work, in 6 month increments, if the alien had filed a non-frivolous 
application for asylum.\29\ The regulation did not define what 
constituted a ``frivolous'' filing. The regulation also excluded, 
without explanation, the limitation on the size of the class of aliens 
who could qualify for employment authorization (in other words, only 
aliens who had applied for asylum before November 1, 1979, but had not 
been granted asylum, and did not have a final order of deportation or 
exclusion). As a result of the regulation, the class of aliens who 
could seek employment authorization based on an asylum application was 
interpreted to include past and future asylum seekers.
---------------------------------------------------------------------------

    \28\ See Aliens and Nationality; Refugee and Asylum Procedures, 
45 FR 37392 (June 2, 1980). This interim rule was not finalized 
until 1983. See also Aliens and Nationality; Asylum Procedures, 48 
FR 5885-01 (Feb. 9, 1983).
    \29\ 45 FR at 37394 (former 8 CFR 208.4).
---------------------------------------------------------------------------

    Congress, however, did not provide adequate resources or enact 
legislation that would address the ``pull'' factors that led to 
significant increases in illegal immigration and in asylum filings 
following enactment of the Refugee Act.\30\ In addition, the 
publication of two INS regulations--the 1986 implementing regulations 
for the Immigration Reform and Control Act of 1986 (IRCA), Public Law 
99-603 (Nov. 6, 1986) \31\ and the 1990 asylum regulations--further 
incentivized illegal immigration and the filing of non-meritorious 
asylum claims or other forms of relief because of the ease with which 
aliens could obtain employment authorization, regardless of the basis 
for the application for employment authorization.\32\ In the 
implementing regulations for IRCA, INS provided that aliens could 
receive an interim EAD if INS did not adjudicate the application for 
employment authorization within 60 days (former 8 CFR 274a.12(c) and 
(d)).\33\ The IRCA regulations also required asylum officers to give 
employment authorization, in 1-year increments, to any alien who had 
filed a non-frivolous \34\ asylum application. In the 1990 asylum 
regulation, INS also mandated that asylum officers give interim EADs to 
any alien who had filed a non-frivolous asylum application, and that 
asylum officers continue to renew employment authorization for the time 
needed to adjudicate the asylum application (former 8 CFR 
208.7(a)).\35\
---------------------------------------------------------------------------

    \30\ See, e.g., David A. Martin, Making Asylum Policy: The 1994 
Reforms, 70 Wash. L. Rev. 725 (July 1995) and David A. Martin, The 
1995 Asylum Reforms, Ctr. for Immigration Studies (May 1, 2000) for 
a discussion of the history and consequences of the asylum reforms 
in 1990s.
    \31\ IRCA legalized many aliens present in the United States 
prior to 1986, created new temporary agricultural worker programs, 
and mandated employment verification and employer sanctions to 
address the problem of U.S. employers hiring illegal aliens. One of 
the main reasons Congress passed IRCA was its growing concern over 
the large influx of aliens crossing our borders illegally, 
particularly on the Southwest border, to find jobs. The employer 
verification system and employer sanctions were designed to address 
this concern by reducing the ``pull'' factor created by the 
availability of higher paying jobs in the United States. See, e.g., 
H.R. Rep. No. 99-682(I) at pp. 5649-5654 (July 16, 1986) (Committee 
explanation for the need for IRCA to control illegal immigration).
    \32\ See Martin, supra note 27, at p. 734; see also David A. 
Martin, Reforming Asylum Adjudication: On Navigating the Coast of 
Bohemia, 138 U. Pa. L. Rev. 1247 (May 1990) at pp. 1267-69, 1288-89, 
and 1373.
    \33\ DOJ final rule, Control of Employment of Aliens, 52 FR 
16216-01 (May 1, 1987). The 60-day period was subsequently extended 
to 90-days with the publication of the final rule, Powers and Duties 
of Service Officers; Availability of Service Records, Control of 
Employment of Aliens, 56 FR 41767-01 (Aug. 23, 1991).
    \34\ DOJ INS also for the first time defined ``frivolous'' to 
mean ``manifestly unfounded or abusive.'' See former 8 CFR 208.7(a) 
(1991).
    \35\ DOJ INS final rule, Aliens and Nationality; Asylum and 
Withholding of Deportation Procedures, 55 FR 30674-01 (July 27, 
1990).
---------------------------------------------------------------------------

    While IRCA's creation of the employer verification system and 
employer sanctions was designed to reduce the ``pull'' factor created 
by the availability of higher paying jobs in the United States, the 
ability to get interim employment authorization within 90 days, 
regardless of the basis for requesting employment authorization in the 
first instance, had the exact opposite effect.\36\ In addition, because 
the agency already had a backlog for adjudicating asylum applications, 
it was unlikely any asylum application would be adjudicated within a 
90-day timeframe, which virtually guaranteed that most asylum 
applicants would be eligible for interim employment authorization.\37\

[[Page 38545]]

The combined effect of the statutory employment authorization for 
asylum applicants, the regulations, and insufficient agency resources 
resulted in a greater influx of aliens, many of whom were not 
legitimate asylum seekers, but instead merely sought to work in the 
United States.\38\
---------------------------------------------------------------------------

    \36\ See Martin, supra note 27, at p. 733-36.
    \37\ In 1994, Congress passed the Violent Crime Control and Law 
Enforcement Act of 1994 (VCCLEA), Public Law 103-322, 108 Stat. 1796 
(Sept. 13, 1994). As part of its findings, Congress stated ``. . . 
in the last decade applications for asylum have greatly exceeded the 
original 5,000 annual limit provided in the Refugee Act of 1980, 
with more than 150,000 asylum applications filed in fiscal year 
1993, and the backlog of cases growing to 340,000.'' VCCLEA, at sec. 
130010(1).
    \38\ See Martin, supra note 27, at p. 733-37.
---------------------------------------------------------------------------

    In 1994, Congress passed the Violent Crime Control and Law 
Enforcement Act of 1994 (VCCLEA), Public Law 103-322, 108 Stat. 1796 
(Sept. 13, 1994), which provided for expedited exclusion proceedings 
and summary deportation of aliens with failed asylum claims and 
provided that no applicant for asylum would be entitled to employment 
authorization unless the Attorney General (now Secretary of Homeland 
Security) determined, as a matter of discretion, that employment 
authorization was appropriate.\39\ Congress passed these amendments 
mainly because the asylum system was being overwhelmed with asylum 
claims, including frivolous and fraudulent claims filed merely to 
obtain employment authorization.\40\ The hope was that the expedited 
exclusion proceedings would reduce such claims. During consideration of 
the VCCLEA, DOJ also conducted a review of the asylum process and 
published regulations designed to reduce the asylum backlogs, eliminate 
procedural hurdles that lengthened the process, and deter abuses in the 
system.\41\ For the first time, DOJ implemented a waiting period for 
asylum seekers--150 days--before they could apply for employment 
authorization, with an additional 30 days for adjudication. DOJ based 
the timeframe on the 180-day processing goals it had set for asylum 
officers and IJs to complete asylum cases at a time when the volume of 
cases was substantially lower than the present day level.
---------------------------------------------------------------------------

    \39\ See Public Law 103-322, 108 Stat. 1796, at sec. 130005.
    \40\ See id. at sec. 130010(1) (findings of the Senate on the 
need for reforms to the asylum process, including finding of a 
backlog of cases up to 340,000); see also H.R. Conf. Rep. 103-711 
(Aug. 21, 1994), at pp. 241-245 and 393-394.
    \41\ DOJ INS final rule, Rules and Procedures for Adjudication 
of Applications for Asylum or Withholding of Deportation and for 
Employment Authorization, 59 FR 62284-01 (Dec. 5. 1994).
---------------------------------------------------------------------------

    In 1996, Congress again amended section 208 when it passed 
IIRIRA.\42\ Congress retained the expedited exclusion (now removal) 
procedures to address the influx of thousands of aliens seeking entry 
into the United States.\43\ Congress also reformed the asylum 
provisions and codified some of the administrative reforms INS made 
when it published the 1994 asylum regulation. IIRIRA incorporated 
language that barred an alien not only from eligibility for asylum, but 
also from any other immigration benefits (such as when an alien filed a 
frivolous application),\44\ added a 1 year deadline to file for asylum, 
and codified INS's regulatory prohibition on asylum seekers being 
granted discretionary employment authorization before a minimum of 180 
days has passed from the date of filing of the asylum application.\45\
---------------------------------------------------------------------------

    \42\ Public Law 104-208, 110 Stat. 3009.
    \43\ See, e.g., H.R. Conf. Rep. 104-828, title III, subtitle A 
(1996).
    \44\ 8 U.S.C. 1158(d)(6) provides:
     If the Attorney General determines that an alien has knowingly 
made a frivolous application for asylum and the alien received the 
notice under paragraph (4)(A), the alien shall be permanently 
ineligible for any benefits under this Act, effective as of the date 
of a final determination on such application.
    \45\ DHS published an interim final rule implementing IIRIRA in 
1997. See DOJ INS, Inspection and Expedited Removal of Aliens; 
Detention and Removal of Aliens; Conduct of Removal Proceedings; 
Asylum Procedures, 62 FR 10312-01 (Mar. 6, 1997). DOJ published a 
separate final rule December 6, 2000 which finalized the provisions 
related to the asylum process proposed in the DOJ INS and EOIR joint 
rule, New Rules Regarding Proceedings for Asylum and Withholding of 
Removal, 63 FR 31945 (June 11, 1998), and in response to comments to 
the asylum procedures made in response to the IIRIRA interim final 
rule.
---------------------------------------------------------------------------

B. Need for Reform

    Since IIRIRA, there have been no major statutory changes to the 
asylum provisions to address the immigration realities faced by the 
United States today. However, since 2016, the United States has 
experienced an unprecedented surge \46\ in the number of aliens who 
enter the country unlawfully across the southern border. In Fiscal Year 
2019, CBP apprehended over 800,000 aliens attempting to enter the 
United States illegally.\47\ These apprehensions are more than double 
of those in Fiscal Year 2018.\48\ If apprehended, many of these aliens 
claim asylum and remain in the United States for years while their 
claims are adjudicated. There is consistent historical evidence that 
approximately 20 percent or less of such claims will be successful.\49\ 
This surge in border crossings and asylum claims has placed a 
significant strain on the nation's immigration system. The large influx 
has consumed an inordinate amount of DHS's resources, which includes 
surveilling, apprehending, screening, and processing the aliens who 
enter the country, detaining many aliens pending further proceedings, 
and representing the United States in immigration court proceedings. 
The surge has also consumed substantial resources at DOJ-EOIR, whose 
IJs adjudicate asylum claims. The strain also extends to the judicial 
system, which must handle petitions to review denials of asylum claims, 
many of which can take years to reach final disposition, even when the 
claims for asylum lack merit.
---------------------------------------------------------------------------

    \46\ See CBP Southwest Border Total Apprehensions/Inadmissibles 
at https://www.cbp.gov/newsroom/stats/sw-border-migration (last 
modified Mar. 12, 2020).
    \47\ Id.
    \48\ See CBP Enforcement Statistics at https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics.
    \49\ See Executive Office for Immigration Review Adjudication 
Statistics ``Asylum Decision Rates'' (July 2019), https://www.justice.gov/eoir/page/file/1104861/download.
---------------------------------------------------------------------------

    In order to maintain the very integrity of the asylum system, it is 
imperative that DHS take all necessary measures to create disincentives 
to come to the United States for aliens who do not fear persecution 
based on the five protected grounds of race, religion, nationality, 
political opinion, or membership in a particular social group, or fear 
torture.\50\ Fleeing poverty and generalized crime in one's home 
country does not qualify an alien for asylum in the United States.\51\
---------------------------------------------------------------------------

    \50\ See, e.g., https://www.wbur.org/cognoscenti/2018/08/08/why-do-migrants-flee-central-america-susan-akram, https://www.washingtonpost.com/world/national-security/hunger-not-violence-fuels-guatemalan-migration-surge-us-says/2018/09/21/65c6a546-bdb3-11e8-be70-52bd11fe18af_story.html?noredirect=on; https://time.com/longform/asylum-seekers-border/.
    \51\ See, e.g., Hui Zhuang v. Gonzales, 471 F.3d 884, 890 (8th 
Cir. 2006) (``Fears of economic hardship or lack of opportunity do 
not establish a well-founded fear of persecution.''); Delgado-Ortiz 
v. Holder, 600 F.3d 1148, 1151 (9th Cir. 2010) (``Asylum is not 
available to victims of indiscriminate violence, unless they are 
singled out on account of a protected ground,'' and ``young men in 
El Salvador resisting gang violence are not a particular social 
group.'').
---------------------------------------------------------------------------

    Statistics support DHS's assertion that the vast majority of 
protection claims are not motivated by persecution under the five 
protected grounds or by torture. The historic high in affirmative 
asylum applications and credible fear receipts in FY 2018 \52\ is 
matched by a historic low rate of approval of affirmative asylum 
applications and credible fear claims in FY 2018.\53\
---------------------------------------------------------------------------

    \52\ See https://www.uscis.gov/sites/default/files/Affirmative_Asylum_Decisions_FY09-FY18_Q2.pdf, https://www.justice.gov/eoir/page/file/1061526/download.
    \53\ Id.
---------------------------------------------------------------------------

    As noted above, it is the policy of the Executive Branch to manage 
our humanitarian immigration programs in

[[Page 38546]]

a safe, orderly manner that provides access to relief or protection 
from removal from the United States for aliens who qualify, and that 
promptly denies benefits to and facilitates the removal of those who do 
not.\54\ Many protection applications appear to be coming from 
applicants escaping poor economic situations and generalized violence 
rather than persecution based on one or more of the five protected 
grounds for asylum or a fear of torture if the alien were returned to 
his or her country of origin. DHS is implementing more stringent 
requirements for eligibility for employment authorization, in order to 
disincentivize aliens who are not bona fide asylum seekers from 
exploiting a humanitarian program to seek economic opportunity in the 
United States.
---------------------------------------------------------------------------

    \54\ https://www.whitehouse.gov/presidential-actions/presidential-memorandum-additional-measures-enhance-border-security-restore-integrity-immigration-system/.
---------------------------------------------------------------------------

    DHS believes that this rule stands as an important disincentive for 
aliens to use asylum as a path to seek employment in the United States. 
DHS further believes that this rule complements broader interagency 
efforts to mitigate large-scale migration to the U.S. southern border 
that preclude some asylum seekers from entering the United States.\55\ 
These programs are strengthened by DHS making important procedural 
adjustments to how those aliens who enter the United States may gain 
access to such a significant immigration benefit as employment 
authorization. Further, while some of these aliens may disregard the 
law and work unlawfully in contravention to these reforms, the 
Department does not avoid the establishment of regulatory policies 
because certain aliens might violate the law.\56\
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    \55\ On January 25, 2019, DHS announced certain aliens 
attempting to enter the United States illegally or without 
documentation, including those who claim asylum, will no longer be 
released into the United States, where they often fail to file an 
asylum application and/or disappear before an IJ can determine the 
merits of any claim. Instead, these aliens are being returned to 
Mexico until their hearing dates. See ``Policy Guidance for 
Implementation of the Migrant Protection Protocols'' (Jan. 2019), 
https://www.dhs.gov/sites/default/files/publications/19_0129_OPA_migrant-protection-protocols-policy-guidance.pdf. On 
July 15, 2019, DHS and DOJ announced a bar to eligibility for asylum 
to any alien who enters or attempts to enter the United States 
across the southern border, but who did not apply for protection 
from persecution or torture where it was available in at least one 
country outside the alien's country of citizenship, nationality, or 
last lawful habitual residence through which the alien transited en 
route to the United States. See ``DHS and DOJ Issue Third-Country 
Asylum Rule'' (July 2019), https://www.dhs.gov/news/2019/07/15/dhs-and-doj-issue-third-country-asylum-rule.
    \56\ Notably, the former INS remarked on the need for reform, 
notwithstanding the possibility that aliens may simply disregard the 
law and work illegally:
    ``The Department also considered the claim that asylum 
applicants will disregard the law and work without authorization. 
While this is possible, it also is true that unlawful employment is 
a phenomenon not limited to asylum applicants, but is found among 
many categories of persons who have illegally entered or remained in 
the United States. The Department does not believe that the solution 
to this problem is to loosen eligibility standards for employment 
authorization. This is particularly so because of the evidence that 
many persons apply for asylum primarily as a means of being 
authorized to work. These rules will discourage applications filed 
for such reasons and thus enable the INS to more promptly grant 
asylum--and provide work authorization--to those who merit relief . 
. .''.
    59 FR 62284-01, 62291.
---------------------------------------------------------------------------

    Congress gave the Executive Branch the discretion to make 
employment authorization available by regulation.\57\ The current 
practice of granting employment authorization with a very low 
eligibility threshold and nearly limitless renewals to aliens before 
they have been determined to be eligible for asylum is a ``pull'' 
factor for the illegal immigration of aliens who are ineligible for any 
immigration status or benefit in the United States, and there is an 
urgent need for reform.\58\ Employment authorization for aliens seeking 
asylum is not a right. It is an ancillary benefit which must be 
carefully implemented in order to benefit those it is meant to assist.
---------------------------------------------------------------------------

    \57\ INA sec. 208(d)(2).
    \58\ See Martin, supra note 27.
---------------------------------------------------------------------------

III. Background

A. Legal Authority

    The Secretary of Homeland Security's authority to make the 
regulatory amendments being implemented by this rule can be found in 
various provisions of the immigration laws. Section 102 of the Homeland 
Security Act of 2002 (HSA) (Pub. L. 107-296, 116 Stat. 2135), 6 U.S.C. 
112, and sections 103(a)(1) and (3) of the INA, 8 U.S.C. 1103(a)(1), 
(3), charge the Secretary with the administration and enforcement of 
the immigration and naturalization laws of the United States. Section 
402(4) of the HSA, 6 U.S.C. 202(4), expressly authorizes the Secretary, 
consistent with section 428 of the HSA (6 U.S.C. 236) (concerning visa 
issuance and refusal), to establish and administer rules governing the 
granting of visas or other forms of permission, including parole, to 
enter the United States to aliens who are not U.S. citizens or lawful 
permanent residents. See also 6 U.S.C. 271(a)(3), (b) (describing 
certain USCIS functions and authorities). Section 208 of the INA, 8 
U.S.C. 1158, gives the Secretary the discretionary authority to grant 
asylum to an alien who meets the definition of refugee under section 
101(a)(42), 8 U.S.C. 1101(a)(42).\59\ Sections 235, 236, and 241 of the 
INA, 8 U.S.C. 1225, 1226, and 1231, govern the apprehension, inspection 
and admission, detention and removal, withholding of removal, and 
release of aliens encountered in the interior of the United States or 
at or between the U.S. ports of entry. Section 274A of the INA, 8 
U.S.C. 1324a, governs employment of aliens who are authorized to be 
employed in the United States by statute or in the discretion of the 
Secretary. The Secretary implements the changes in this rule under 
these authorities.
---------------------------------------------------------------------------

    \59\ A refugee is defined under INA section 101(a)(42), 8 U.S.C. 
1101(a)(42), as:
    1. Any person who is outside any country of such person's 
nationality or, in the case of a person having no nationality, is 
outside any country in which such person last habitually resided, 
and who is unable or unwilling to return to, and is unable or 
unwilling to avail himself or herself of the protection of, that 
country because of persecution or a well-founded fear of persecution 
on account of race, religion, nationality, membership in a 
particular social group, or political opinion, or
    2. in such special circumstances as the President after 
appropriate consultation (as defined in section 1157(e) of this 
title) may specify, any person who is within the country of such 
person's nationality or, in the case of a person having no 
nationality, within the country in which such person is habitually 
residing, and who is persecuted or who has a well-founded fear of 
persecution on account of race, religion, nationality, membership in 
a particular social group, or political opinion. . . . .
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B. Eligibility for Asylum

    Asylum is a discretionary benefit that can be granted by the 
Secretary or Attorney General if the alien establishes, among other 
things, that he or she has experienced past persecution or has a well-
founded fear of future persecution on account of race, religion, 
nationality, membership in a particular social group, or political 
opinion.\60\ Under the INA, certain aliens are barred from obtaining 
asylum, including aliens who are persecutors, have been convicted of a 
particularly serious crime (which includes aggravated felonies as 
defined under section 101(a)(43) of the INA, 8 U.S.C. 1101(a)(43)), 
have committed serious non-political crimes outside of the United 
States, who are a danger to the security of the United States, have 
engaged in certain terrorism-related activities or are members of 
terrorist organizations, or who are firmly resettled in a third 
country.\61\
---------------------------------------------------------------------------

    \60\ INA sec. 208(b), 8 U.S.C. 1158(b).
    \61\ INA sec. 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A).
---------------------------------------------------------------------------

    Aliens seeking asylum generally must apply for asylum within one 
year from the date of their last arrival in the United States. An alien 
who files for

[[Page 38547]]

asylum after the 1 year deadline is generally not eligible to apply for 
asylum unless the Secretary of Homeland Security or Attorney General, 
in his or her discretion, excuses the late filing.\62\ For a late 
filing to be excused, the alien must demonstrate that changed 
circumstances materially affected the alien's eligibility for asylum, 
or extraordinary circumstances delayed filing during the 1 year 
period.\63\ Even if an alien meets all the criteria for asylum, 
including establishing past persecution or a well-founded fear of 
future persecution based on the five protected grounds and any 
exceptions to late filing, the Secretary or Attorney General can still 
deny asylum as a matter of discretion.\64\
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    \62\ The one-year filing deadline does not apply to an alien who 
is an unaccompanied alien child, as defined in 6 U.S.C. 279(g). INA 
sec. 208(a)(2)(E), 8 U.S.C. 1158(a)(2)(E).
    \63\ INA sec. 208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D).
    \64\ See INA sec. 208(b)(1), 240(c)(4)(ii); 8 U.S.C. 1158(b)(1), 
1229a(c)(4)(ii).
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    Aliens who are granted asylum cannot be deported or removed, are 
employment authorized incident to their status, and may be permitted to 
travel outside of the United States with prior consent from the 
Secretary.\65\ Asylum can be terminated if the alien was not eligible 
for asylum status at the time of the asylum grant or is otherwise no 
longer eligible for asylum under the law.\66\
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    \65\ INA sec. 208(c)(1), 8 U.S.C. 1158(c)(1).
    \66\ INA sec. 208(c)(2), 8 U.S.C. 1158(c)(2).
---------------------------------------------------------------------------

C. Affirmative vs. Defensive Asylum Filings

    To request asylum, an alien must file an application with either 
USCIS or with the immigration court, using Form I-589, Application for 
Asylum and for Withholding of Removal. If the IJ or the BIA determines 
that an alien knowingly filed a frivolous application for asylum, the 
alien is permanently ineligible for asylum and any other immigration 
benefits or relief under the INA. Withholding and deferral of removal 
are not considered relief in this regard. INA section 208(d)(6), 8 
U.S.C. 1158(d)(6); 8 CFR 208.20, 1208.20.
    Asylum applications are characterized by which agency has 
jurisdiction over the alien's case. If an alien is physically present 
in the United States, is not detained, and has not been placed in 
removal proceedings, the alien files the asylum application with USCIS. 
These applications are known as ``affirmative'' filings. If DHS places 
an alien in removal proceedings, the alien files an application for 
asylum with an IJ.\67\ These applications are known as ``defensive'' 
filings and include aliens referred to the IJ by a USCIS asylum officer 
for de novo review of their asylum claims.
---------------------------------------------------------------------------

    \67\ Where an asylum application is filed by an unaccompanied 
alien child, USCIS has initial jurisdiction over that application, 
even if the applicant is in removal proceedings. INA sec. 
208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C); William Wilberforce 
Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), 
Public Law 110-457 (Dec. 23, 2008).
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    Aliens who present themselves at a U.S. port of entry (air, sea, or 
land) are generally deemed applicants for admission.\68\ If an 
immigration officer determines that an alien is inadmissible under 
section 212(a)(6)(C) or 212(a)(7) of the INA, 8 U.S.C. 1182(a)(6)(C) or 
(a)(7), for being in possession of false documents, making false 
statements, or lacking the required travel documentation, the alien may 
be placed in expedited removal proceedings under section 235(b)(1) of 
the Act, 8 U.S.C. 1225(b)(1). Such aliens may indicate an intention to 
apply for asylum, express a fear of persecution or torture, or a fear 
of return to their home country and are then interviewed by an asylum 
officer to determine whether the alien has a credible fear of 
persecution or torture. INA section 235(b)(1), 8 U.S.C. 1225(b)(1); 8 
CFR 235.3(b)(4). If an alien is determined to have a credible fear, 
``the alien shall be detained for further consideration of application 
for asylum.'' INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii). Asylum 
applications based initially on a positive credible fear determination 
are under the jurisdiction of the immigration courts once a Notice to 
Appear (NTA) is filed with the court and as such are considered 
``defensively-filed.'' Similarly, even if an alien in expedited removal 
proceedings is released from detention by ICE after a positive credible 
fear determination is made, the alien is still considered to be under 
the jurisdiction of the immigration court once the NTA is filed and 
must file the application for asylum with the court.
---------------------------------------------------------------------------

    \68\ INA sec. 101(a)(13)(C), 8 U.S.C. 1101(a)(13)(C) provides 
separate exceptions for when a lawful permanent resident will be 
considered an applicant for admission (for example, abandoned 
residence, continuous absence of 180 days, illegal activity after 
departure from the United States).
---------------------------------------------------------------------------

D. Employment Authorization for Asylees and Asylum Applicants

    Whether an alien is authorized to work in the United States depends 
on the alien's status in the United States and if employment is 
specifically authorized by statute or only authorized pursuant to the 
Secretary's discretion. Employment authorization for aliens granted 
asylum and for asylum applicants is authorized under INA sections 
208(c)(1)(B) and (d)(2), respectively, 8 U.S.C. 1158(c)(1)(B), (d)(2). 
Employment authorization for aliens granted asylum is statutorily 
mandated and incident to their status. Aliens granted asylum (asylees) 
are not required to apply for an EAD in order to be employment 
authorized. USCIS issues the EAD under 8 CFR 274a.12(a)(5). Employment 
authorization for aliens granted withholding of removal or deferral of 
removal are governed by 8 CFR 274a.12(a)(10) and (c)(18) respectively. 
This final rule does not change anything regarding the employment 
eligibility for an alien granted asylum.
    An asylum applicant, however, is not entitled to employment 
authorization by statute. INA section 208(d)(2), 8 U.S.C. 1158(d)(2). 
The Secretary, through regulations, may authorize employment for asylum 
seekers while the asylum application is pending adjudication. Even if 
the Secretary chooses to grant employment authorization to an asylum 
applicant, under the current statute and regulations, the Secretary 
cannot grant such authorization until 180 days after the filing of the 
application for asylum. Id. In practice, this 180-day period is 
commonly called the ``180-day Asylum EAD Clock.'' \69\ The goal of the 
Asylum EAD clock is to deter applicants from delaying their asylum 
application solely to obtain employment authorization. Therefore, USCIS 
does not count, for purposes of the time an alien must wait before the 
alien can apply for a (c)(8) EAD, the days that actions by the 
applicant have resulted in delays to the adjudication of his or her 
asylum application. However, applicants, practitioners, and USCIS 
itself have all cited difficulty with accurate clock calculations.\70\ 
In light of these issues, DHS is eliminating the clock altogether and, 
instead, extending the mandatory waiting period to file an asylum-based 
EAD application. USCIS will deny an EAD application if the asylum 
application is still subject to an unresolved applicant-caused delay at 
the time the initial (c)(8) EAD application is filed.
---------------------------------------------------------------------------

    \69\ EOIR-USCIS joint notice, The 180-day Asylum EAD Clock 
Notice, https://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/Asylum_Clock_Joint_Notice_-_revised_05-10-2017.pdf (last updated May 
9, 2017).
    \70\ See Dep't of Homeland Security, Citizenship & Immigration 
Services Ombudsman Report, Employment Authorization for Asylum 
Applicants: Recommendations to Improve Coordination and 
Communication (Aug. 26, 2011), at p.6.
---------------------------------------------------------------------------

    While the INA bars certain aliens from being granted asylum, such 
as persecutors and applicants who engaged

[[Page 38548]]

in terrorist activity,\71\ such aliens may still apply for asylum, and 
subsequently also apply for an EAD once their application has been 
pending for 150 days. INA sec. 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A). 
Aliens seeking employment authorization generally must apply for an EAD 
by filing Form I-765 with USCIS in accordance with the form 
instructions, along with any prescribed fee. 8 CFR 274a.13. The 
regulations at 8 CFR 208.7 and 274a.12(c)(8) govern employment 
authorization for asylum applicants.
---------------------------------------------------------------------------

    \71\ See, e.g., INA sec. 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F); 
INA sec. 212(a)(2)(A)(i)(I), 8 U.S.C. 1182(a)(2)(A)(i)(I); INA sec. 
212(a)(2)(B), 8 U.S.C. 1182(a)(2)(B).
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E. Asylum and EAD Adjudications

    Under existing regulations, there are several important stages and 
timeframes that can affect the adjudication of asylum applications and 
(c)(8) EADs: (1) The initial filing of an asylum application; (2) the 
one-year filing deadline; (3) the 150-day period asylum applicants must 
wait before they are eligible to file an application for employment 
authorization; and (4) the additional 30-day period (180-days total) 
before USCIS may grant (c)(8) employment authorization.
    Under current 8 CFR 208.3, if USCIS fails to return the incomplete 
application for asylum to the applicant within 30 days, the application 
is automatically deemed complete. Once the asylum application has been 
accepted for processing, USCIS asylum officers review it to determine 
if all the documents required to make a decision have been submitted. 
This review also includes a determination of whether the asylum 
application was filed within the required 1-year period. If the alien 
failed to file within the 1-year period, USCIS asylum officers and/or 
IJs then determine whether the alien meets any of the exceptions to the 
late filing bar. In the case of affirmative asylum filings, if the 
alien does not meet an exception, the USCIS asylum officer has the 
authority to deny, dismiss, or refer the case to the immigration court. 
8 CFR 208.14. USCIS asylum officers refer cases to the immigration 
court by issuing a NTA, which places the alien into removal 
proceedings. If the USCIS asylum officer refers the complete asylum 
application to the immigration court, the immigration court conducts a 
de novo review and determines if the alien met the required one-year 
filing deadline or qualifies for any of the late filing exceptions.
    Once the asylum application is accepted, the 150-day waiting period 
for filing a (c)(8) EAD application begins. The regulations at 8 CFR 
208.7(a) further provide that USCIS will have 30 days from the filing 
date of the EAD application to grant or deny that application. The 180-
day Asylum EAD Clock therefore includes the 150-day waiting period for 
filing the (c)(8) EAD application, which is the time while the asylum 
application is pending with USCIS, or an IJ, and the additional 30-day 
period that USCIS has to grant or deny the EAD application. The 180-day 
Asylum EAD Clock excludes delays requested or caused by the applicant 
and does not run again until the applicant cures the delay or until the 
next scheduled event in a case, such as a postponed interview, or a 
continued hearing.
    USCIS is not permitted to issue an EAD until 180-days after the 
filing of a complete asylum application (in other words, the date an 
alien can be issued an EAD). If a USCIS asylum officer recommends that 
an asylum application be approved before the required waiting period 
ends, the alien may apply for employment authorization based on the 
recommended approval.
    As noted, there are a number of actions that can delay or toll the 
running of the 180-day Asylum EAD Clock. For example, if an applicant 
fails to appear for a required biometrics appointment, the 180-day 
Asylum EAD clock will stop and not recommence until the alien appears 
for his or her biometrics appointment. Similarly, if an alien asks to 
amend or supplement his or her asylum application, fails to appear at 
an asylum office to receive and acknowledge receipt of the decision, 
requests an extension after the asylum interview, or reschedules an 
asylum interview, all of these actions will stop the 180-day Asylum EAD 
Clock, and the EAD clock will not recommence until the required action 
is completed.\72\ As a result, some aliens may wait longer than 180 
calendar days before they can be granted employment authorization.
---------------------------------------------------------------------------

    \72\ See id. EOIR-USCIS joint notice, The 180-day Asylum EAD 
Clock Notice, for additional examples of actions that can affect the 
180-day Asylum EAD Clock.
---------------------------------------------------------------------------

    Once an asylum applicant receives an EAD based on a pending asylum 
application, his or her employment authorization will terminate either 
on the date the EAD expires or 60 days after the denial of asylum, 
whichever is longer (affirmatively-filed cases). If the asylum 
application is denied by an IJ, the BIA, or a denial of asylum is 
upheld by a Federal court, the employment authorization terminates upon 
the expiration of the EAD, unless the applicant seeks renewal of 
employment authorization during the pendency of any administrative or 
judicial review.

IV. Discussion of the Final Rule

A. 365-Day Waiting Period To Apply for EADs Based on Pending Asylum 
Applications

    DHS is extending the time period an asylum applicant must wait 
before he or she is eligible to be granted employment authorization 
based on a pending asylum application from 180 days to 365 calendar 
days. See 8 CFR 208.7. DHS is changing the time period to a 365-day 
waiting period to remove the incentives for aliens who are not 
legitimate asylum seekers to exploit the system and file frivolous, 
fraudulent, or non-meritorious claims to obtain employment 
authorization or other immigration benefits such as cancellation of 
removal. Currently, if an alien files an application for asylum, the 
alien can obtain an EAD after 180 days, excluding any days not counted 
due to an applicant-caused delay. Backlogs at USCIS and the years-long 
wait for hearings in the immigration courts allow aliens to remain in 
the United States for many years, be authorized for employment, and 
ultimately gain equities for an immigration benefit, even if their 
asylum applications ultimately will be denied on the merits.\73\ DHS 
believes that extending the waiting period for filing a (c)(8) EAD 
application will be a strong deterrent to those who may seek to file 
frivolous, fraudulent, and non-meritorious asylum applications. 
Further, in light of DHS's assessment \74\ that many asylum seekers are 
escaping general criminal violence and poor economic situations in 
their home countries, it is logical that more stringent requirements 
for EAD eligibility will disincentivize some of these aliens from 
coming to the United States in search of economic opportunity. DHS also 
believes that this deterrent, coupled with the last-in, first out 
(LIFO) asylum-adjudication scheduling discussed below, will lead to

[[Page 38549]]

meritorious applications being granted sooner and non-meritorious 
applications being denied sooner. DHS acknowledges that these reforms 
will also apply to aliens with meritorious asylum claims, and that 
these applicants may experience some degree of economic hardship as a 
result of heightened requirements for an EAD. However, DHS's ultimate 
goal is to maintain integrity in the asylum process. DHS has determined 
that sustaining an under-regulated administrative regime is no longer 
feasible and that it is not unreasonable to impose additional time and 
security requirements on asylum seekers before they may apply for an 
EAD.
---------------------------------------------------------------------------

    \73\ See, e.g., Doris Meissner, Faye Hipsman, and T. Alexander 
Aleinikoff, The U.S. Asylum System in Crisis; Charting a Way 
Forward, Migration Policy Institute (Sept. 2018) at pp. 4 and 9-12, 
for additional discussion on the impact of backlogs and delays in 
immigration proceedings.
    \74\ See ``Statement from the Department of Homeland Security 
following the Acting Secretary's appearance at Georgetown 
University'' (Oct. 2019), https://www.dhs.gov/news/2019/10/07/statement-department-homeland-security-following-acting-secretary-s-appearance. DHS has made this assessment based on internal reporting 
from regional asylum offices, internal country information 
assessments, and corroborating journalist sources cited prior in 
this final rule.
---------------------------------------------------------------------------

    DHS is implementing this change to complement its LIFO scheduling 
priority, re-implemented on January 29, 2018.\75\ This priority 
approach, first established during the asylum reforms of 1995 and used 
for 20 years until 2014, is a deterrent to those who might try to use 
the existing backlog as a means to obtain employment authorization. 
Returning to a LIFO interview schedule will allow USCIS to identify 
frivolous, fraudulent, or otherwise non-meritorious asylum claims 
earlier and place those aliens into removal proceedings. Under the 
previous Administration, DHS discontinued LIFO processing, which was 
followed by a significant increase in asylum applications.
---------------------------------------------------------------------------

    \75\ USCIS News Release, USCIS To Take Action to Address Asylum 
Backlog (Jan. 31, 2018).
---------------------------------------------------------------------------

    In the last decade, USCIS has seen its backlog of asylum 
applications skyrocket, with the number of new affirmative asylum 
filings increasing by a factor of 2.5 between FY 2014 and FY 2017.\76\ 
The skyrocketing number of affirmative asylum applications has not 
corresponded with an increased asylum grant rate compared to historical 
averages. As of March 31, 2019, USCIS faced an affirmative asylum 
backlog of 327,984 cases. By the end of FY 2019 (September 30, 2019), 
USCIS faced an affirmative asylum backlog of 339,836 cases.\77\ The 
high volume of cases stems in part from the recent surges in illegal 
immigration and organized caravans of thousands of aliens, primarily 
from the Northern Triangle countries (El Salvador, Honduras, and 
Guatemala), creating a humanitarian and national security crisis at the 
southern border. USCIS also has had to divert resources and asylum 
officers from processing affirmative-asylum backlog cases to address 
the continuing high volume of credible fear and reasonable fear cases 
that require nearly immediate interviews. This diversion of resources 
to credible fear screenings has prevented USCIS from making progress to 
reduce or eliminate the affirmative asylum backlog.
---------------------------------------------------------------------------

    \76\ See infra Table 8.
    \77\ See Asylum Office Workload September 2019, available at 
https://www.uscis.gov/sites/default/files/USCIS/Outreach/Notes%20from%20Previous%20Engagements/PEDAffirmativeAsylumStatisticsFY2019.pdf.
---------------------------------------------------------------------------

    DHS is eliminating the 180-day Asylum EAD Clock and instead will 
deny EAD applications where there are unresolved, applicant-caused 
delays in the adjudication of the Form I-589 existing on the date the 
initial EAD application is filed. The elimination of the 180-day EAD 
clock will resolve some of the difficulties adjudicators face in 
processing asylum EAD applications. Calculating the current 180-day EAD 
Clock is one of the most complex and time-consuming aspects of EAD 
adjudications.\78\ It requires multipart calculations and the tracking 
of the start and stop dates for each individual applicant's case. It 
also requires coordination with DOJ-EOIR for defensively-filed cases 
that are not under USCIS' jurisdiction.\79\ In light of these issues, 
DHS is eliminating the Asylum EAD Clock altogether and instead 
extending the mandatory waiting period to file for an EAD. DHS also is 
notifying applicants that their EAD application will be denied if their 
asylum case is subject to an applicant-caused delay at the time the 
applicant files the Form I-765 (c)(8) application. DHS believes 
eliminating the 180-day Asylum EAD Clock will significantly streamline 
the determination of the date of the applicant's employment 
authorization eligibility, while continuing to disincentivize 
applicants from prolonging the adjudication of their asylum 
applications. USCIS EAD adjudicators will no longer have to calculate 
the number of days that must be excluded to account for applicant-
caused delays or coordinate with DOJ-EOIR to do so, and will instead 
simply rely on 365 calendar days from the asylum application receipt 
date to determine when an alien can request employment authorization. 
DHS has promulgated a separate rulemaking eliminating the requirement 
to adjudicate the EAD application within 30 days. See Removal of 30-Day 
Processing Provision for Asylum Applicant-Related Form I-765 Employment 
Authorization Applications'' DHS Docket No. USCIS-2018-0001, 84 FR 
47148 (Sept. 9, 2019).
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    \78\ DHS acknowledges that many processes have been automated by 
the Person Centric Query System (PCQS) Asylum EAD Clock Calculator. 
However, the Asylum EAD Clock Calculator is not fully automated and 
there are still calculations that are not captured in the Clock 
Calculator. Additionally, USCIS did not create business rules to 
address all possible scenarios and, as a result, USCIS officers have 
had to do manual calculations in many scenarios. The elimination of 
the 180-day Asylum EAD Clock will create overall efficiencies for 
USCIS given these limitations with the Clock Calculator.
    \79\ See, e.g., Citizenship & Immigration Services Ombudsman, 
Employment Authorization For Asylum Applicants, at p.6.
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    DHS recognizes that a number of aliens who are legitimate asylum 
seekers may experience potential economic hardship because of the 
extended waiting period. However, the asylum system in the United 
States is completely overwhelmed and has been for years.\80\ DHS is 
committed to enforcing our immigration laws so that we can secure our 
borders and keep the American people safe. DHS and its inter-agency 
partners are taking action to disrupt drug trafficking organizations, 
cartels, human smuggling rings, and other nefarious actors operating on 
the United States' southern border.\81\ These actions include referring 
and prosecuting illegal border crossers and those who smuggle them into 
the United States, building the first new sections of border wall in a 
decade, and deploying the National Guard to the border. But DHS must 
also take steps to address the pull factors bringing economic migrants 
to the United States.\82\ The urgency to maintain the efficacy and 
integrity of the U.S. asylum and immigration system outweighs the 
hardship that may be imposed by the additional 6-month waiting period. 
The integrity and preservation of the U.S. asylum system takes 
precedence over any potential economic hardship faced by aliens who 
arrive in the United States without a legal status, whether or not 
those aliens may later be found to have meritorious claims.
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    \80\ See, e.g., Joel Rose and John Burnett, Migrant Families 
Arrive in Busloads as Border Crossings Hit 10-Year High, Nat'l Pub. 
Radio (March 5, 2019) for observations about the recent surges in 
illegal immigration on the southern border.
    \81\ See, e.g., Zapotosky, Matt, U.S. Arrests Hundreds in Show 
of Force Against Mexico's Jalisco New Generation Cartel, The 
Washington Post (March 11, 2020), available at https://www.washingtonpost.com/national-security/jalisco-new-generation-mexico-cartel-dea-arrests/2020/03/11/ffd8ce0a-639a-11ea-acca-80c22bbee96f_story.html; Rendon-Alvarez, Karla. 15 Arrested in 
Mission Bay Human Smuggling Attempt, NBC San Diego (Feb. 19, 2020), 
available at https://www.nbcsandiego.com/news/local/15-arrested-in-mission-bay-human-smuggling-attempt/2266932/.
    \82\ See, e.g., de C[oacute]rdoba, Jose. The Guatemalan City 
Fueling the Migrant Exodus to America, The Wall Street Journal (July 
21, 2019), available at www.wsj.com/articles/the-guatemalan-city-fueling-the-migrant-exodus-to-america-11563738141.
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B. One-Year Filing Deadline

    As part of the reforms to the asylum process, DHS also is 
emphasizing the

[[Page 38550]]

importance of the statutory one-year filing deadline for asylum 
applications. Both DHS and DOJ-EOIR adjudicate asylum applications 
filed by aliens who reside in the United States for years before 
applying for asylum. Many aliens filing for asylum now are aliens who 
were inspected and admitted or paroled but failed to depart at the end 
of their authorized period of stay (visa overstays), or who entered 
without inspection and admission or parole and remained, not because of 
a fear of persecution in their home country, but for economic 
reasons.\83\ In addition, the Asylum Division reports that a 
contributing factor to the asylum backlog is an increase in the number 
of applicants who file skeletal or fraudulent asylum applications 
affirmatively to trigger removal proceedings before the immigration 
court where they can apply for cancellation of removal--a statutory 
defense against removal and pathway to lawful permanent resident status 
available to those who have at least 10 years of physical presence in 
the United States and meet additional eligibility criteria.\84\ DHS 
seeks to address this practice, to incentivize bona fide asylum 
applicants to file sooner, and to reduce the asylum backlog by making 
aliens ineligible for (c)(8) employment authorization if they fail to 
file their asylum application within 1 year of their last arrival in 
the United States as required by statute. Based on statute and relevant 
case law, DHS is also implementing exceptions to the one year-filing 
deadline as it relates to eligibility for a (c)(8) EAD, namely for 
those who have met, as determined by an asylum officer or IJ, an 
exception under INA section 208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D). The 
statutory one-year filing deadline does not apply if the applicant was 
an unaccompanied alien child on the date the asylum application was 
first filed, and therefore neither does the one-year filing bar under 
this provision. DHS believes that, absent changed or extraordinary 
circumstances, the statutory 1-year filing period is a sufficient 
period of time for bona fide asylum applicants to submit their 
application to USCIS or an IJ. DHS is applying this provision to any 
alien who filed his or her asylum application on or after the effective 
date of this final rule, and filed the application after the one-year 
filing deadline.
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    \83\ Congress found that the asylum system was being overwhelmed 
with asylum claims, including frivolous and fraudulent claims filed 
merely to obtain employment authorization. See, e.g., Public Law 
103-322, 108 Stat. 1796, at sec. 130010(3) (findings of the Senate 
on the need for reforms to the asylum process, including finding 
that the asylum system was being abused ``by fraudulent applicants 
whose primary interest is obtaining work authority in the United 
States while their claim languishes in the backlogged asylum 
processing system.''). See also H.R. Rep. No. 99-682(I) at pp. 5649-
5654 (discussion of the impact of economic migrants on the U.S. 
economy during consideration of IRCA in 1986). See also 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.
    \84\ See CIS Ombudsman, Annual Report, at p.44.
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C. Criminal Bars to Eligibility

    DHS is aligning the bars to eligibility for a (c)(8) EAD to the 
criminal bars for asylum under section 208(b)(2)(A)(ii) and (iii), 8 
U.S.C. 1158(b)(2)(A)(ii), (iii). Any alien who at any time has been 
convicted of an aggravated felony under section 101(a)(43) of the INA, 
8 U.S.C. 1101(a)(43), or has been convicted on or after the effective 
date of this final rule of a particularly serious crime or committed a 
serious non-political crime outside of the United States, will be 
ineligible for a (c)(8) EAD. In addition, any alien who fails to 
establish that he or she is not subject to a mandatory denial of asylum 
due to any regulatory criminal grounds under 8 CFR 208.13(c) will be 
ineligible for a (c)(8) EAD.\85\
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    \85\ See Procedures for Asylum and Bars to Asylum Eligibility, 
84 FR 69640 (Dec. 19, 2019). By reference to 8 CFR 208.13(c), DHS 
does not intend that these criminal bars incorporate INA 
208(b)(2)(A)(1)(i), (iv), or (v) (as referenced via 8 CFR 
208.13(c)(1)), or 8 CFR 208.13(c)(2)(C), (E), or (F).
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    DHS will require (c)(8) EAD applicants who file their Form I-765 on 
or after the effective date of this final rule to appear at an ASC to 
provide their biometrics for their initial and renewal applications. 
The biometrics collection will allow DHS to: (1) Conduct criminal 
history background checks to confirm the absence of a disqualifying 
criminal offense, (2) vet the applicant's biometrics against government 
databases (for example, FBI databases) to determine if he or she 
matched any criminal activity on file, (3) verify the applicant's 
identity and compare it to that of the asylum applicant, and (4) 
facilitate card production with updated, digital photographs.

D. Procedural Reforms

    DHS is clarifying that USCIS has jurisdiction over all applications 
for employment authorization based on a pending or approved asylum 
application, regardless of whether USCIS or DOJ-EOIR has jurisdiction 
over the asylum case. DHS is also implementing several procedural 
changes to streamline the asylum adjudication process. Currently, most 
applications, petitions, and requests for immigration benefits have 
specific minimum requirements that must be met before the forms can be 
accepted for filing. DHS is amending the regulations at 8 CFR 208.3 to 
remove the language providing that a Form I-589, Application for Asylum 
and for Withholding of Removal, will be deemed a complete, properly 
filed application if USCIS fails to return the incomplete Form I-589 to 
the alien within a 30-day period. See 8 CFR 208.3. This procedural 
change will require asylum applicants to file the asylum application in 
accordance with the requirements outlined in the regulations at 8 CFR 
103.2 and form instructions and is consistent with the general 
principle that applicants and petitioners bear the burden of filing 
complete applications and petitions. Applications not properly filed 
will be rejected and returned to the applicant with the reason(s) for 
the rejection, consistent with other form types. DHS also is removing 
the language referring to ``recommended approvals'' of asylum 
applications and the effect such notices have on the ability of some 
asylum applicants to seek employment authorization earlier than others. 
See 8 CFR 208.3 and 274a.12(c)(8). Recipients of recommended approvals 
have not fully completed the asylum adjudication process. Previously, 
USCIS issued recommended approvals even when all required background 
and security check results had not been received, and recipients of 
such notices were eligible for employment authorization. However, 
because Congress has mandated that DHS not approve any applications 
until DHS has received and reviewed all the results of the required 
background and security checks, DHS has determined that continuing to 
issue recommended approval notices is contrary to this mandate.\86\ In 
addition, DHS believes it is an inefficient use of resources for USCIS 
to manage a separate processing regime which requires USCIS to review 
the asylum application twice: First to determine if it is initially 
approvable as a

[[Page 38551]]

``recommended approval,'' and then again (after a recommended approval 
notice has been issued to the applicant) to ensure that the applicant 
remains eligible for asylum based on the results of the background and 
security checks. This change will enhance efficiency by removing 
duplicative case processing tasks. It will also enhance the integrity 
of the overall asylum process because all information, including the 
results of background and security checks, will be considered before 
issuance of the asylum decision.
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    \86\ See, e.g., Consolidated Appropriations Act, 2019, Public 
Law 116-6, 113 Stat. 33, Div. A, tit. IV, sec. 402 (2019) (``None of 
the funds made available in this Act may be used by U.S. Citizenship 
and Immigration Services to grant an immigration benefit unless the 
results of background checks required by law to be completed prior 
to the granting of the benefit have been received by U.S. 
Citizenship and Immigration Services, and the results do not 
preclude the granting of the benefit.''); Departments of Commerce, 
Justice, and State, the Judiciary, and Related Agencies 
Appropriations Act of 1998, Public Law 105-119, 111 Stat. 2440, 
2447-48 (1997)(directing the former INS to collect fingerprints and 
not accept fingerprint cards from outside entities and permitted INS 
to charge a fee).
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    Further, any documentary evidence submitted fewer than 14 calendar 
days before the asylum interview (with allowance for a brief extension 
to submit additional evidence as a matter of discretion) may be 
considered an applicant-caused delay for purposes of EAD eligibility if 
it delays the adjudication of the asylum application. The purpose of 
this provision is to improve administrative efficiency and aid in the 
meaningful examination and exploration of evidence in preparation for 
and during the asylum interview. Additionally, DHS is including this 
provision to address the common practice of aliens or their 
representatives submitting hundreds of pages of documentary evidence 
shortly before or on the day of the interview, preventing meaningful 
examination of that evidence and delaying the adjudication. Submission 
of smaller quantities of evidence, such as photographs or a short 
police or medical report, within the 14 calendar day period would not 
be counted as an applicant-caused delay if it does not prevent the 
meaningful examination of the evidence or delay the adjudication.

E. Termination of Employment Authorization

    DHS is revising the rule governing when employment authorization 
terminates to provide that when USCIS or DOJ-EOIR denies an asylum 
application, the alien's employment authorization associated with the 
asylum application will terminate automatically, effective on the date 
of denial of the asylum application. The current practice of allowing 
an alien to work on a (c)(8) EAD after he or she has been determined 
ineligible for asylum is inconsistent with the Department's enforcement 
priorities and mission.
1. Denial of Asylum Application by USCIS Asylum Officer
    Previously, the regulations at 8 CFR 208.7(b)(1) provided that an 
asylum applicant's employment authorization terminates 60 days after a 
USCIS asylum officer denies the application or on the date the EAD 
expires, whichever is longer. DHS does not believe it was Congress' 
intent to allow aliens with denied asylum applications to continue to 
be employment authorized once their asylum claims are denied. 
Therefore, when a USCIS asylum officer denies an alien's request for 
asylum, any employment authorization associated with the pending asylum 
application will be automatically terminated effective on the date the 
asylum application is denied. Further, consistent with the previous 
regulations, DHS will deny employment authorization to any alien whose 
asylum application is denied by an asylum officer either during the 
365-day waiting period or before USCIS adjudicates the initial request 
for employment authorization.
    When a USCIS asylum officer refers an affirmative asylum 
application to DOJ-EOIR, the asylum application remains pending, and 
the associated employment authorization remains valid while the IJ 
adjudicates the application, unless terminated or revoked pursuant to 8 
CFR 274a.14. Once an alien is granted asylum by USCIS or an IJ, the 
alien is immediately employment authorized. USCIS issues the EAD under 
8 CFR 274a.12(a)(5).
2. Termination After Denial By IJ
    Previously, the regulations at 8 CFR 208.7(b)(2) provided that when 
an IJ denies an asylum application, the employment authorization 
terminates on the date the EAD expires, unless the asylum applicant 
seeks administrative or judicial review. After this Final Rule takes 
effect, if an IJ denies the alien's asylum application, employment 
authorization will terminate 30 days after denial to allow time for 
appeal to the BIA. If a timely appeal is filed, employment 
authorization will be available to the alien during the BIA appeal 
process, but prohibited during the Federal court appeal process unless 
the case is remanded to DOJ-EOIR for a new decision. DHS believes that 
restricting access to (c)(8) employment authorization during the 
judicial review process is necessary to ensure that aliens who have 
failed to establish eligibility for asylum during two or three levels 
of administrative review do not abuse the appeals processes in order to 
remain employment authorized. For the same reason and consistent with 
the previous regulations, DHS will deny employment authorization to 
aliens whose asylum applications have been denied by an IJ either 
during the 365-day waiting period or before USCIS adjudicates the 
initial application for employment authorization.
3. Automatic Extensions of Employment Authorization and Terminations
    To conform the automatic extension and termination provisions under 
8 CFR 208.7(b) to the amendments made in this Final Rule, DHS is 
amending the current regulations at 8 CFR 274a.13(d), which govern 
automatic extensions of employment authorization and termination of 
such extensions. If an asylum applicant's employment authorization will 
expire before the asylum officer, IJ, or the BIA renders a decision on 
the asylum application, under current regulations, the alien may file 
an application to renew the employment authorization. If the renewal 
employment authorization application is filed timely, the alien's 
employment authorization is extended automatically for up to 180 days 
or to the date of the decision on the application for employment 
authorization, whichever comes first. As previously discussed, under 
this Final Rule, when a USCIS asylum officer, IJ, or the BIA denies the 
asylum application, DHS will terminate any employment authorization on 
the date of the denial, except for the 30-day appeal window for an 
alien to file an appeal with the BIA following the IJ's denial of an 
asylum application. The rule at 8 CFR 208.7(b)(2) makes clear that 
employment authorization automatically terminates regardless of whether 
it is in a period of automatic extension. Therefore, this final rule 
makes conforming amendments at 8 CFR 274a.13(d)(3), to specify that 
automatic extensions will automatically terminate upon a denial of the 
asylum application, or on the date the automatic extension expires 
(which is up to 180 days), whichever is earlier. See 8 CFR 
274a.13(d)(3).
    DHS also is implementing a technical change that adds a new 
paragraph at 8 CFR 274a.14(a)(1) to generally reference any automatic 
termination provision elsewhere in DHS regulations, including the 
automatic EAD termination provision being implemented by this rule.\87\ 
As 8 CFR 274a.14(a)(1) is a general termination provision, DHS feels 
that incorporation of a general reference to other termination 
provisions will help avoid possible confusion regarding the 
applicability of such other provisions in relation to 8 CFR 
274a.14(a)(1).
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    \87\ See 8 CFR 208.7(b)(2); see also 8 CFR 214.2(f)(9)(ii)(F)(2) 
(automatic termination of F-1 student-based employment authorization 
based on economic necessary where the student fails to maintain 
status).

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[[Page 38552]]

4. Adjudication and Termination of EADs Filed by UACs
    Based on comments received, DHS is clarifying how I-765 
applications filed by UACs are adjudicated. A UAC who has a pending 
asylum application before USCIS may apply for, and be granted, an EAD 
provided that the eligibility criteria in this rule are met, excluding 
the one-year filing deadline. See 8 CFR 208.7(a)(1)(iii)(F) of this 
rule. UACs are generally placed in removal proceedings shortly after 
they are encountered on arrival and determined to be UACs. By the time 
they file asylum applications, therefore, most UACs are in removal 
proceedings. Regulations that govern jurisdiction over asylum 
applications generally prohibit USCIS from accepting asylum filings 
from aliens who are in removal proceedings before DOJ-EOIR and provide 
that, once an alien is in such removal proceedings, the IJ has 
exclusive jurisdiction over any asylum application that an alien may 
file. 8 CFR 1003.14(b), 1208.2(b). Generally, USCIS asylum officers 
only have jurisdiction over asylum applications of aliens who are not 
in removal proceedings before an IJ. 8 CFR 208.2(a), 1208.2(a) and 
1240.1 (a)(l)(ii). The William Wilberforce Trafficking Victims 
Protection Reauthorization Act of 2008 (``TVPRA'') however, provides a 
statutory exception to this general rule. See Public Law 110-457, 122 
Stat. 5044 (2008). Under section 235(d)(7)(B) of the TVPRA, codified at 
8 U.S.C. 1158(b)(3)(C), and section 208(b)(3)(C) of the INA, 8 
U.S.C.1158(b)(3)(C), ``[a]n asylum officer . . . shall have initial 
jurisdiction over any asylum application filed by an unaccompanied 
alien child.'' 8 U.S.C. 1158(b)(3)(C) (emphasis added). Thus, USCIS 
takes initial jurisdiction over asylum applications filed by UACs, even 
as they remain in ongoing removal proceedings. Where USCIS exercises 
this initial jurisdiction and does not grant an asylum application of a 
UAC, USCIS returns the case to the immigration court with jurisdiction 
over the removal proceedings. This is not a referral, because the 
applicant is already in proceedings and already has an NTA. However, 
for purposes of adjudicating employment authorization, USCIS will treat 
the return of a UAC's asylum application to an IJ where removal 
proceedings were initiated either prior to or during the time in which 
USCIS adjudicated the asylum application in the same way as a referral 
under 8 CFR 208.7(b)(1)(i) of this rule. As such, a UAC's EAD will not 
automatically terminate upon the asylum officer's decision not to grant 
asylum; rather, it will terminate after a denial of the UAC's asylum 
application by an IJ unless timely appealed, or after the BIA affirms 
or upholds a denial, as described by 8 CFR 208.7(b)(2) of this rule.
    The HSA, 6 U.S.C. 279(g), defines UAC as ``a child who--(A) has no 
lawful immigration status in the United States; (B) has not attained 18 
years of age; and (C) with respect to whom--(i) there is no parent or 
legal guardian in the United States; or (ii) no parent or legal 
guardian in the United States is available to provide care and physical 
custody.'' In some cases, however, an asylum application may have been 
filed by a UAC who later obtains lawful status. In such cases, USCIS 
would generally issue a denial of the asylum application if the 
applicant fails to establish eligibility for asylum but is in lawful 
status at the time of the adjudication of the asylum application, in 
accordance with 8 CFR 208.14(c)(2). Accordingly, the EAD of a UAC who 
is denied asylum by an asylum officer but who is in lawful status will 
automatically terminate as described under 8 CFR 208.7(b)(2) of this 
rule.
    In cases where removal proceedings have not been initiated and the 
UAC is not in lawful status at the time of the asylum adjudication, 
USCIS will refer the UAC to an IJ if the UAC is not eligible for 
asylum, in accordance with 8 CFR 208.14(c)(1). In these cases, the 
UAC's EAD will not terminate upon referral and the UAC may be granted 
renewals of the EAD, as provided by 8 CFR 208.7(b)(1)(i) of this rule.

F. Aliens Who Have Established a Credible Fear or a Reasonable Fear of 
Persecution or Torture and Who Have Been Paroled Into the United States

    DHS is clarifying the rule governing employment eligibility for 
certain aliens who have been paroled into the United States after 
establishing a credible fear or reasonable fear of persecution or 
torture. See 8 CFR 208.30.
    In 2017, DHS issued a memo, ``Implementing the President's Border 
Security and Immigration Enforcement Improvement Policies,'' which 
stated that CBP or ICE will only consider the release of aliens from 
detention based on the parole authority under INA section 212(d)(5), 8 
U.S.C. 1182(d)(5), on a case-by-case basis.\88\ One such case is when 
an arriving alien, who is subject to expedited removal, establishes a 
credible fear of persecution or torture or eligibility for withholding 
of removal, adequately establishes his or her identity, does not pose a 
flight risk or danger to the community, and otherwise warrants parole 
as a matter of discretion. Currently, when DHS exercises its discretion 
to parole such aliens, CBP or ICE officers are instructed to endorse 
the Form I-94 parole authorization with an express condition that 
employment authorization not be provided under 8 CFR 274a.12(c)(11) on 
the basis of the parole. This final rule conforms the regulations to 
this important policy. DHS continues to believe that it is an 
inconsistent policy to allow supposed asylum seekers who are released 
from custody on parole to obtain employment authorization almost 
immediately, without being subject to the same statutory requirements 
and waiting period as non-paroled asylum seekers, or even a requirement 
to file an asylum application. Therefore, this rule clarifies, 
consistent with section 208(d)(2) of the INA, 8 U.S.C. 1158(d)(2), and 
existing DHS policy, that employment authorization for this category of 
parolee is not immediately available under the (c)(11) parole-based EAD 
category. Such aliens may still be eligible to apply for a (c)(8) 
employment authorization if they file an application for asylum and 
seek employment authorization, subject to eligibility requirements 
under this rule.
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    \88\ See Secretary of Homeland Security John Kelly, 
``Implementing the President's Border Security and Immigration 
Enforcement Improvements Policies,'' Section K (Feb. 20, 2017), 
https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Implementing-the-Presidents-Border-Security-Immigration-Enforcement-Improvement-Policies.pdf.
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G. Illegal Entry

    DHS is excluding aliens from receiving a (c)(8) EAD if they, on or 
after the effective date of this rule, enter or attempt to enter the 
United States illegally without good cause. Good cause is defined as a 
reasonable justification for entering the United States illegally as 
determined by the adjudicator on a case-by-case basis. Since what may 
be a reasonable justification for one applicant may not be reasonable 
when looking at the circumstances of another applicant, DHS believes a 
case-by-case determination of good cause in a (c)(8) adjudication will 
incentivize aliens to comply with the law to the extent possible and 
avoid injury and death associated with illegal entries. DHS believes 
these provisions also will reduce government expenditures related to 
detecting, apprehending, processing, housing, and transporting 
escalating numbers of illegal entrants. To the extent that this change 
is alleged to be a ``penalty'' within the meaning of Article 31(1) of 
the 1951 Convention relating to the Status of Refugees, which is 
binding on the United States by

[[Page 38553]]

incorporation in the 1967 Protocol relating to the Status of Refugees, 
DHS believes that the good cause exception is consistent with U.S. 
obligations under the 1967 Protocol because it exempts aliens from the 
bar to eligibility for employment authorization if they establish good 
cause for entering or attempting to enter the United States at a place 
and time other than lawfully through a U.S. port of entry.
    The amendments to this section make any alien who enter or attempt 
to enter the United States at a place and time other than lawfully 
through a U.S. port of entry ineligible to receive a (c)(8) EAD, with 
the limited exception of when an alien demonstrates that he or she: (1) 
Presented himself or herself without delay but no later than 48 hours 
after the entry or attempted entry to the Secretary of Homeland 
Security (or his or her delegate); (2) indicated to the Secretary of 
Homeland Security or his or her delegate an intention to apply for 
asylum or expressed a fear of persecution or torture; and (3) otherwise 
had good cause for the illegal entry or attempted entry. The 
Secretary's delegates include Border Patrol Agents, CBP Officers, ICE 
Enforcement and Removal Officers, ICE Homeland Security Investigations 
Special Agents, or members of the U.S. Coast Guard. Examples of 
reasonable justifications for the illegal entry or attempted entry 
include, but are not limited to, requiring immediate medical attention 
or fleeing imminent serious harm, but do not include the evasion of 
U.S. immigration officers, or entering solely to circumvent the orderly 
processing of asylum seekers at a U.S. port of entry, or for 
convenience. Asylum is a discretionary benefit reserved for those who 
establish that they are genuinely in need of the protection of the 
United States. It follows that employment authorization associated with 
a pending asylum application should be similarly reserved. DHS believes 
that illegally entering the United States without good cause should be 
strongly deterred, and is therefore grounds to deny this discretionary 
benefit. In order to deter future illegal entries, DHS will apply this 
provision to any alien who enters or attempts to enter the United 
States unlawfully on or after the effective date of this final rule.

H. Effective Date of the Final Rule

    The rules in effect on the date of filing Form I-765 will govern 
all initial and renewal applications for (c)(8) and (c)(11) employment 
authorization. To ensure consistency with a separate rulemaking 
entitled ``Removal of 30-Day Processing Provision for Asylum Applicant-
Related Form I-765 Employment Authorization Applications,'' DHS Docket 
No. USCIS-2018-0001, 84 FR 47148 (Sept. 9, 2019), this Final Rule will 
not apply to initial (c)(8) EAD applications filed before the effective 
date of this rule by members of the Rosario class if the Rosario 
injunction remains in effect as of the effective date of this Final 
Rule.
    Under this rule, DHS will allow aliens with pending asylum 
applications that have not yet been adjudicated and who already have 
employment authorization before the final rule's effective date to 
remain employment authorized until the expiration date on their EAD, 
unless the card is terminated or revoked on the grounds specified in 
prior regulations. This rule will not have any impact on applications 
to replace lost, stolen, or damaged (c)(8) EADs. All (c)(11) EAD 
applications filed on or after the effective date of this Final Rule by 
aliens who have established credible fear and are paroled into the 
United States on that basis will be denied.
    DOJ-EOIR has similar but separate asylum-related rules under 8 CFR 
part 1208 as a result of transferring the functions of the former INS 
and dividing them between DHS and DOJ-EOIR.\89\ This rulemaking did not 
propose to and does not amend any of the regulations at 8 CFR part 
1208. DOJ-EOIR may amend its regulations at a later date, but it is not 
doing so in conjunction with this rulemaking. USCIS maintains sole 
jurisdiction over aliens' requests for employment authorization.
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    \89\ See generally Matter of R-S-H-, 23 I. & N. Dec. 629, 630 
n.5 (BIA 2003) (``As a result of the transfer of the functions of 
the Immigration and Naturalization Service to the Department of 
Homeland Security, the regulations in chapter I of the Code of 
Federal Regulations were transferred or duplicated to a new chapter 
V.'')
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V. Public Comments on the Proposed Rule

A. Summary of Public Comments

    On November 14, 2019, DHS published a proposed rule in docket 
USCIS-2019-0011. The comment period for the proposed rule closed on 
January 13, 2020. DHS received a total of 1,074 comment submissions in 
response to the proposed rule. The majority of the comment submissions 
were from individual commenters. Other commenters included anonymous 
commenters; advocacy groups; religious organizations; organizations 
providing direct legal, social, and medical services to aliens; 
attorneys; state and local governments; law firms; federal, state, and 
local elected officials; professional associations; research 
institutions and organizations; unions; and professional associations. 
While some commenters expressed general support for the rule, the 
majority opposed the rule.

B. Requests To Extend Comment Period

    Comment: One commenter requested a 30-day extension of the comment 
period for this rule in light of the holidays and the fact that another 
USCIS NPRM had a comment period during the same timeframe. Another 
commenter argued that DHS had deprived the public of an adequate 
opportunity to comment on this rule and several other NPRMs--namely, 
the proposed rule addressing bars to asylum eligibility, the USCIS fee 
rule, and the rule to eliminate the 30-day processing timeframe for 
asylum-based EADs \90\--by publishing them separately. The commenter 
argued that the public should have been given sufficient time to review 
and consider all of the rules together so that the public could comment 
on the combined impact of the rules on overall asylum policy and 
procedure. One commenter stated that the proposal presented a ``moving 
target'' for public participation, as it was at the time the third of 
four recent DHS notices that affect asylum. The commenter argued that 
treating the four proposals separately has made it impossible for 
commenters and DHS to evaluate the rules' cumulative impacts. The 
commenter stated that the elimination of the 30-day processing 
requirement for EADs would be impacted by the proposals in this rule, 
but that neither rule accounted for the other.
---------------------------------------------------------------------------

    \90\ DHS NPRM, Removal of 30-Day Processing Provision for Asylum 
Applicant-Related Form I-765 Employment Authorization Applications, 
84 FR 47148 (Sept. 9, 2019); DHS NPRM, U.S. Citizenship and 
Immigration Services Fee Schedule and Changes to Certain Other 
Immigration Benefit Request Requirements, 84 FR 62280 (Nov. 14, 
2019); and DHS and DOJ-EOIR Joint NPRM, Procedures for Asylum and 
Bars to Asylum Eligibility, 84 FR 69640 (Dec. 19, 2019).
---------------------------------------------------------------------------

    Response: DHS believes that the 60-day comment period for this rule 
and the 60-day comment periods provided for the other rules referenced 
by the commenter provided more than an adequate opportunity for public 
input, and declines to extend the comment period. The Administrative 
Procedure Act (APA) is silent regarding the duration of the public 
comment period, and does not establish a minimum duration.\91\ However, 
the 60-day comment period is in line with E.O. 12866, which encourages, 
but does not require, agencies to provide at least 60

[[Page 38554]]

days for the public to comment on significant rules.
---------------------------------------------------------------------------

    \91\ See 5 U.S.C. 553(c).
---------------------------------------------------------------------------

    The sufficiency of the 60-day comment period for this rule is 
supported by the over 1,000 public comments received. The public, 
including attorneys, advocacy groups, religious, community, and social 
organizations, law firms, federal, state, local, and tribal entities, 
and elected officials provided a great number of detailed and 
informative comments. In addition, DHS notes that the proposed rule has 
been listed in the publicly available Unified Agenda of Federal 
Regulatory and Deregulatory Actions since the Fall 2018 publication, so 
the public has been made aware of DHS's intent to publish a rule of 
this nature. Further, in the proposed rule, DHS specifically referenced 
the 30-day asylum-EAD processing NPRM, indicating that it had been 
published separately and that this rule and the 30-day asylum-EAD 
processing NPRM contained distinct proposals. DHS directed commenters 
to comment on each rule separately and to send comments to the correct 
docket for each rule.
    Given the quantity and quality of the comments received in response 
to the proposed rule, and other publicly available information 
regarding the rule, DHS believes that the 60-day comment period has 
been more than sufficient.

C. Severability Clause

    One commenter noted that the proposed rule contained a severability 
clause which would allow DHS to implement portions of the proposed rule 
if other portions were found to be unlawful by a court. The commenter 
asked DHS to withdraw the rule in its entirety because the commenter 
believed that the whole rule was based on an unsubstantiated premise 
that it will deter frivolous and fraudulent asylum applications, and 
that sections of this rule were unnecessary and duplicative of USCIS 
processes that were already in place. The commenter also stated that 
the rule violated the APA but did not provide a rationale for the 
statement.
    Response: DHS disagrees with the commenters and will not withdraw 
the rule. By engaging in the current rulemaking, DHS has satisfied its 
obligations under the APA and given the public ample opportunity to 
comment on the proposals within the rule. DHS also articulated specific 
and individualized rationales for the numerous changes proposed in the 
rule that are supported by data and that are in keeping with the 
immigration priorities and policies of the Executive branch as they 
relate to the management of discretionary EADs based on pending asylum 
applications.
    DHS also will not remove the severability clause. A severability 
clause is a standard legal provision. It allows Congress and the 
Executive Branch to sever certain provisions of a law or rule, if a 
court finds that they are unconstitutional or unlawful, without 
nullifying the entire law or rule. Those provisions that are unaffected 
by a legal ruling can be implemented by an agency without requiring a 
new round of rulemaking simply to promulgate provisions that are not 
subject to a court ruling.

D. Comments Expressing General Support for the NPRM

    Comment: A minority of the commenters expressed overall support for 
the rule. Several commenters agreed that the asylum system needed to be 
reformed because of fraud and abuse. Many commenters believed that the 
asylum system was being exploited by aliens who do not qualify for 
asylum. The commenters stated that the asylum system needed to change 
because real asylum seekers were being deprived of the protection and 
services in the United States. Many commenters stated that aliens who 
enter the United States illegally should not be allowed to obtain 
immigration benefits or work, especially if it created additional 
burdens and costs for U.S. taxpayers. Several commenters supported the 
rule and agreed that DHS should not authorize asylum seekers to work 
until DHS or the courts have determined that the alien actually meets 
the requirements for asylum. The commenters also agreed that criminal 
aliens should not be allowed to work in the United States and that any 
alien who commits a crime while in the United States should have his or 
her employment authorization revoked.
    Several commenters supported DHS taking action to eliminate the 
``pull'' factors that cause illegal migration and to remove the 
incentives for aliens to file frivolous or fraudulent asylum claims. 
Several commenters expressed concern with the amount of resources and 
taxpayer dollars that DHS was expending to deal with the recent surges 
in aliens crossings the border illegally. One commenter noted that 
asylum is not a right but a privilege and another commenter noted that 
Congress gave the Secretary of Homeland Security authority to bar 
employment authorization for asylum applicants altogether. One 
commenter supported the rule, stating that illegal aliens have no right 
to establish a residence or obtain employment in the United States. 
Several commenters also supported the rule and believed that, without 
changes, the agency backlogs would continue to grow, and true asylum 
seekers would continue to live in limbo and fear of being returned to 
their home countries. Another individual supported the proposed rule as 
a good ``workaround [because of] our legislators' inability to limit 
mass immigration.''
    Response: DHS agrees that the current asylum process needs to be 
substantially reformed. DHS believes that the reforms being implemented 
in this Final Rule will help return integrity to the asylum system and 
help ensure that aliens who are genuinely fleeing persecution based on 
their race, religion, nationality, political opinion, or membership in 
a particular social group, can have their claims heard expeditiously. 
The asylum system was never meant to be an avenue for economic migrants 
to reside and work in the United States. DHS is implementing this rule 
to remove the incentives for aliens to come to the United States solely 
for economic reasons and to eliminate meritless asylum filings solely 
to obtain work authorization. As some commenters noted, our immigration 
system already provides multiple legal pathways for those who wish to 
work legally in the United States. In addition, Congress expressly gave 
the Secretary of Homeland Security the discretion to grant employment 
authorization to asylum seekers. Asylum is a discretionary benefit that 
is reserved for those who meet the requirements. Asylum seekers are not 
entitled to work in the United States until the Secretary or Attorney 
General determines that they actually qualify for and should be granted 
asylum.
    This rule is being implemented to ensure the asylum process is 
managed in a safe, humane, and orderly manner, to provide access to 
protection in the United States for aliens who qualify, and to ensure 
that those who do not qualify are not incentivized to prolong 
proceedings or delay removal for economic purposes. This rulemaking 
also is part of a series of reforms DHS is undertaking to improve and 
streamline the asylum system so that those with bona fide asylum claims 
can be prioritized and extended the protections that the United States 
has to offer.

E. Comments Expressing General Opposition to the NPRM

    Comment: A majority of the commenters opposed the rule. Many 
commenters were concerned that the rule would place an ``inordinate

[[Page 38555]]

burden'' on asylum seekers, many of whom are impoverished and ``will 
not have the ability to work immediately upon their arrival into the 
United States.'' Many commenters argued that asylum seekers should be 
allowed to work and support their families while they are in the United 
States. The commenters believed that allowing asylum seekers to work 
would promote self-sufficiency, alleviate the need for them to rely on 
government benefits, save U.S. taxpayer dollars, and reduce the 
incentives to work illegally. The commenters also believed that asylum 
seekers should be able to contribute to the U.S. economy, realize the 
American dream, and integrate into American society.
    Several commenters felt that the rule was immoral, cruel, and 
inhumane, because many asylum seekers who had already fled persecution 
in their home countries and were already poor and destitute would have 
to wait even longer before they could start a new life in America and 
support themselves and their families. Some commenters argued that 
denying work to asylum seekers was not in keeping with Christian and 
American values. Other commenters believed that the motives behind the 
promulgation of the rule were not deterrence but based on xenophobia 
and racism.
    Several commenters expressed concern that prohibiting employment 
authorization until their cases are decided would: (1) Increase asylum 
seekers' vulnerability to being exploited by unscrupulous people and 
bad actors, (2) ``force'' them to work illegally, commit crimes, and 
``remain in the shadows,'' (3) limit their access to legal counsel, and 
(4) allegedly further victimize them because of the ``detrimental 
effect lack of employment would have on their physical well-being and 
mental health.'' Some commenters also believed that denying asylum 
seekers the ability to work would potentially force them to return to 
their home countries and the dangerous situations from which they had 
fled. Other commenters were concerned that asylum seekers who are 
currently employed would lose their jobs and that the businesses or 
companies who had hired them would be disrupted because of the loss of 
their workforce. Several other commenters argued that the rule 
illegally ``infringes'' on an alien's right to apply for asylum and 
dissuades asylum seekers from applying for protection in the United 
States.
    Finally, a few commenters suggested that DHS should ``grandfather'' 
asylum seekers who were already in the United States and apply the 
previous regulations to their requests for employment authorization. 
The commenters also suggested that DHS should make an exception for 
asylum applicants who have been in the United States for more than 10 
years, paid taxes, and have no felony convictions.
    Response: Obtaining employment authorization in the United States 
has been, and continues to be, a significant incentive for aliens to 
migrate, legally and illegally, to the United States.\92\ While DHS 
supports the ability of aliens who have established eligibility for 
employment in the United States, including asylees and refugees, to 
participate in the U.S economy, DHS believes that employment 
authorization must be carefully regulated, not only to protect U.S. 
workers, but also to maintain the integrity of the U.S. immigration 
system. DHS has identified (c)(8) employment authorization, with its 
low eligibility threshold and nearly limitless renewals, coupled with 
the lengthy adjudication and judicial processes, as a driver for 
economic migrants who are ineligible for lawful status in the United 
States to file frivolous, fraudulent, and otherwise non-meritorious 
asylum applications.\93\
---------------------------------------------------------------------------

    \92\ See supra fns. 32 and 84.
    \93\ See Martin, supra note 27, at p. 734; see also David A. 
Martin, Reforming Asylum Adjudication: On Navigating the Coast of 
Bohemia, 138 U. Pa. L. Rev. 1247 (May 1990) at pp. 1267-69, 1288-89, 
and 1373.
---------------------------------------------------------------------------

    Notwithstanding claims by some commenters, by statute, asylum 
seekers are not immediately eligible to work upon arrival in the United 
States. They are required to wait for at least 6 months, and often wait 
longer, before they can receive employment authorization. This waiting 
period is temporary and not a bar to employment authorization. With 
this rulemaking and other streamlining measures, DHS believes that 
those who would abuse the asylum system solely to gain work 
authorization will be disincentivized to make the dangerous journey to 
the United States to file asylum claims for employment authorization. 
This in turn will decrease existing backlogs, allow legitimate asylum 
seekers to have their cases processed in a timely fashion, and allow 
them to obtain employment authorization immediately after DHS or DOJ-
EOIR determines they are asylees.
    DHS fully appreciates the values embodied in our humanitarian 
programs, and continues to uphold those values while adhering to the 
statutory obligations that underpin this rule. DHS strongly disagrees 
with comments asserting that this rule is based on racial animus. This 
rulemaking applies equally to all asylum seekers, and does not create 
disparate treatment or have discriminatory effect on applicants. The 
demographics of asylum seekers are as vast and varied as the number of 
countries around the globe and DHS did not promulgate this rule to 
affect any particular race, religion, nationality, or category of 
aliens who may seek asylum. Further, the overall impact of the rule 
will not make aliens less likely to qualify for asylum, more vulnerable 
to persecution, force them to return to their home countries, or force 
them to work illegally in the United States. This final rule will help 
mitigate the humanitarian crisis at our southern border by encouraging 
only legitimate asylum seekers who are fleeing persecution to seek 
asylum. DHS also disagrees that this rule illegally ``infringes'' on 
the right to obtain asylum. Unlike statutory withholding of removal and 
protections under the Convention Against Torture and Other Cruel, 
Inhumane and Degrading Treatment (CAT), asylum is a discretionary 
benefit. No one has the right to be granted asylum in the United 
States. In addition, this rule does not alter the eligibility 
requirements for asylum--establishing persecution or a well-founded 
fear of persecution on the five protected grounds (race, religion, 
nationality, membership in a particular social group, or political 
opinion). Employment authorization for asylum seekers is discretionary. 
No asylum seeker is entitled to employment authorization unless 
specifically authorized pursuant to statute or granted by the Secretary 
as a matter of discretion. Employment authorization for asylum seekers 
is not an entitlement but an ancillary benefit that Congress authorized 
and entrusted to the Secretary to decide if employment authorization 
should be granted, and if so under what terms and conditions. Through 
this rule DHS seeks to separate the asylum application process from 
employment authorization as a deterrent to aliens who are not bona fide 
asylum seekers, but are simply abusing the asylum process solely to 
remain and work in the United States.\94\ See INS final rule, Rules and 
Procedures for Adjudication of Applications for Asylum or Withholding 
of Deportation and for Employment Authorization, 59 FR 62284-01, 62291 
(Dec. 5, 1994).
---------------------------------------------------------------------------

    \94\ In the 1994 Final Rule implementing the 180-day employment 
authorization waiting period, the agency stated that it ``strongly 
believes that the asylum process must be separated from the 
employment authorization process,'' and intended that ``the rule 
will discourage applicants from filing meritless claims solely as a 
means to obtain employment authorization.'' Id. at 62290.

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[[Page 38556]]

    DHS has carefully considered the suggestions for modifications of 
the rule. While DHS will not ``grandfather'' any classes of aliens or 
create the exceptions proposed by the commenters, it has determined to 
apply many provisions of the rule to actions that occur on or after the 
effective date of this Final Rule, such as the illegal entry, one-year 
filing, and most of the criminal bars. To ``grandfather'' in a class of 
aliens would create an unworkable parallel adjudicatory framework and 
there is no legal or policy reason to establish such a framework, 
especially since (c)(8) employment authorization is a discretionary, 
temporary benefit that is subject to expiration and a new analysis of 
whether an alien warrants employment authorization as a matter of 
discretion upon the filing of each new request for renewal of an EAD.
    DHS also considered the claim that asylum applicants will disregard 
this rule and work without authorization. Commenters raised similar 
concerns when the former INS implemented the 180-day waiting period. 
DHS rejects the premise of these claims and agrees with the responses 
stated by the former INS and adopts the response stated in the 1994 
final rule.\95\
---------------------------------------------------------------------------

    \95\ Id. at 62291. The INS stated that--
    ``While [it] is possible [that asylum applicants may choose to 
work without authorization], it also is true that unlawful 
employment is a phenomenon not limited to asylum applicants, but is 
found among many categories of persons who have illegally entered or 
remained in the United States. The Department does not believe that 
the solution to this problem is to loosen eligibility standards for 
employment authorization. This is particularly so because of the 
evidence that many persons apply for asylum primarily as a means of 
being authorized to work. These rules will discourage applications 
filed for such reasons and thus enable the INS to more promptly 
grant asylum--and provide work authorization--to those who merit 
relief . . .''
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F. Comments Regarding Legal Authority and Statutory Provisions

1. Relevant Statutes
a. Refugee Act of 1980
    Comment: Several commenters argued that the rule contravenes the 
Refugee Act of 1980 (hereinafter Refugee Act) Public Law 96-212, 94 
Stat. 102. One advocacy group argued that asylum seekers fit within the 
definition of a refugee and that through the passage of the Refugee 
Act, DHS became ``legally bound'' to provide sanctuary to such aliens. 
Another commenter argued that the Refugee Act specifically requires 
that asylum seekers be supported with job training and employment 
assistance. Several commenters argued that DHS was ``changing the grant 
of employment authorization into a discretionary decision.'' Some 
commenters argued that making EADs subject to agency discretion, 
without clearly expressed criteria, would be contrary to the Refugee 
Act and its provision for refugees' self-reliance. One commenter argued 
that the Refugee Act was intended to promote the effective resettlement 
and absorption of refugees into the United States, which means helping 
refugees to become economically self-sufficient as soon as possible. 
Another commenter noted that the Refugee Act requires the President to 
adjust the number of refugees admitted each year based on humanitarian 
concerns but, because only a small percent have been designated 
refugees, the United States is severely limiting the number of aliens 
eligible for employment in the United States under the Refugee Act.
    Response: While DHS agrees that the Refugee Act is intended to 
promote the effective resettlement of refugees, it disagrees with the 
commenter's presumption that an asylum applicant is, by default, a 
refugee. U.S. law states that the burden of proof is on the asylum 
applicant to establish that the he or she is a refugee, within the 
meaning of section 101(a)(42)(A) of the INA, 8 U.S.C. 1101(a)(42). To 
be considered a refugee, an applicant must establish that he or she has 
experienced persecution or has a well-founded fear of future 
persecution on account of one of the five protected grounds. The 
applicant must show that race, religion, nationality, membership in a 
particular social group, or political opinion was or will be at least 
one central reason for the applicant's persecution or fear of 
persecution.
    An alien admitted as a refugee has already been determined by the 
U.S. government through an adjudication overseas to meet the statutory 
definition of a refugee and is therefore entitled to the benefits and 
protections of the Refugee Act upon arrival to the United States. No 
similar determination is made for an asylum applicant until an asylum 
officer or an IJ adjudicates the asylum application. Significantly, 
only a small fraction of asylum applicants are determined to meet the 
definition of a refugee and are granted asylum. In FY 2019, the DOJ-
EOIR asylum grant rate for affirmative and defensive asylum 
applications was 20.60 percent.\96\ From FY 2015 to FY 2019, the 
average asylum grant rate was 19.08 percent, and the grant rate for the 
first quarter of FY 2020 was 19.79 percent.\97\ Therefore, equating an 
asylum applicant with a refugee and insisting all asylum applicants are 
entitled to the same benefits and protections under the Refugee Act is 
premature and inaccurate. DHS is promulgating this rule in order to 
focus its attention and resources on bona fide asylum applicants, 
rather than continuing to provide a discretionary benefit with 
virtually no eligibility criteria and nearly limitless renewal 
opportunity to approximately 80 percent of the current (c)(8) EAD 
population who cannot establish eligibility for asylum or to remain in 
the United States as an asylee.
---------------------------------------------------------------------------

    \96\ See Executive Office for Immigration Review Adjudication 
Statistics, Asylum Decision Rates (Jan. 23, 2020) available at 
https://www.justice.gov/eoir/page/file/1248491/download.
    \97\ Id. This average equals the sum of the grant rates from 
FY15 through FY19 divided by five.
---------------------------------------------------------------------------

    DHS also notes that when Congress passed the Refugee Act in 1980, 
its main purpose was to replace the ad hoc process that existed at the 
time for admitting refugees and to provide a more uniform refugee 
process.\98\ The Refugee Act did not explicitly address how the United 
States should reform the asylum process or handle the sudden influx of 
asylum seekers. The commenters are correct that the Refugee Act 
established programs for providing assistance and job training to 
refugees who are admitted into the United States. However, those 
programs only apply to aliens who had already been granted refugee 
status, not to asylum applicants. Finally, as noted above, Congress 
requires the Secretary to provide employment authorization to those who 
are granted asylum. See INA section 208(c)(1)(B), 8 U.S.C. 
1158(c)(1)(B). Nothing in this final rule changes that treatment of 
work authorization for asylees. However, Congress left it to the 
discretion of the Secretary to decide whether an asylum applicant 
should be provided employment authorization. See INA section 208(d)(2), 
8 U.S.C. 1158(d)(2) (``An applicant for asylum is not entitled to 
employment authorization, but such authorization may be provided under 
regulation by the [Secretary].''). Therefore, this rule is within the 
Secretary's discretionary statutory authority and is consistent with 
the Refugee Act.
---------------------------------------------------------------------------

    \98\ See Public Law 96-212, 94 Stat. 102, Sec.  101(b) and S. 
Rep. 96-256 (July 23, 1979), at pp. 141-143. Earlier treatment of 
refugees came from the Displaced Persons Act of 1948, 62 Stat. 1009, 
as amended, the Refugee Relief Act of 1953, 67 Stat. 400, and the 
Refugee-Escapee Act of 1957, 71 Stat. 643.
---------------------------------------------------------------------------

b. INA and Homeland Security Act
    Comment: Some commenters argued that the proposed rule was 
inconsistent with the provisions of the INA governing withholding of 
removal,

[[Page 38557]]

section 241(b)(3)(A) of the INA (8 U.S.C. 1231(b)(3)(A)), and asylum, 
section 208(a)(1) of the INA (8 U.S.C. 1158(a)(1)). One commenter 
argued that these laws were meant to safeguard those who fled danger 
and that this rule essentially denies asylum seekers the ability to 
provide for themselves while physically present in the United States. 
One commenter also opposed the rule arguing that it not only is 
inconsistent with the following provisions of the INA, 8 U.S.C. 
1103(a)(1), (3), 1158, 1225, 1226, 1231, and 1324(a), but also several 
provisions of the HSA, 6 U.S.C. 112, 202(4), 271(a)(3), 271(b) 
(relating to the authorities and adjudicatory functions of the 
Secretary and Director of USCIS) and existing regulations.
    Response: DHS disagrees with the commenters. This rule is 
consistent with the Secretary's authority under the INA, the HSA, and 
DHS regulations as they relate to the discretionary authority of the 
Secretary to grant employment authorization to an asylum applicant. 
Congress has clearly indicated when employment authorization is 
mandatory and when it is discretionary. In the context of asylum, 
Congress specifically mandates the Secretary to give employment 
authorization to those who are granted asylum. See INA section 
208(c)(1)(B), 8 U.S.C. 1158(c)(1)(B). However, Congress left it to the 
discretion of the Secretary to decide whether an alien who is seeking 
asylum should be provided employment authorization. See INA 208(d)(2) 
(``An applicant for asylum is not entitled to employment authorization, 
but such authorization may be provided under regulation by the 
[Secretary].'')
    The Secretary has the statutory authority to provide, limit, or bar 
asylum seekers completely from obtaining employment authorization based 
on the pending asylum application and this authority exists regardless 
of an alien's manner of entry, when the alien applied for asylum, and 
whether the alien may or may not be barred from asylum under the 
statute or regulations. However, the Acting Secretary has chosen 
through this final rule to exercise his discretionary authority 
narrowly and to prescribe the limited conditions under which certain 
asylum seekers may obtain employment authorization while they are in 
the United States and before they have established eligibility for 
asylum in the first instance. DHS, therefore, believes that this final 
rule is consistent with the Secretary's statutory authorities under the 
INA and HSA and is necessary to achieve the stated purposes of this 
rule.
2. Acting Secretary of Homeland Security's Legal Authority
    Comment: Two commenters argued that the proposed rule was invalid 
because Acting Secretary Chad Wolf did not have a ``valid legal claim 
to the office of the DHS Secretary.'' Both organizations cited the 
Federal Vacancies Reform Act of 1998 (FVRA), 5 U.S.C. 3348, the HSA (6 
U.S.C. 113(g)(1)),\99\ and the E.O. 13753, Amending the Order of 
Succession in the Department of Homeland Security, 81 FR 90667 (Dec. 9, 
2016), to support their assertions, the commenters stated that because 
the rules of succession following the resignation of former DHS 
Secretary Kirstjen Nielsen were not followed, any rules promulgated by 
the current Acting Secretary were essentially null and void.
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    \99\ Section 103(g) of the HSA (6 U.S.C. 113(g)(1)) states:
    (g) Vacancies
    (1) Absence, disability, or vacancy of Secretary or Deputy 
Secretary.--Notwithstanding chapter 33 of title 5, the Under 
Secretary for Management shall serve as the Acting Secretary if by 
reason of absence, disability, or vacancy in office, neither the 
Secretary nor Deputy Secretary is available to exercise the duties 
of the Office of the Secretary.
    (2) Further order of succession.--Notwithstanding chapter 33 of 
title 5, the Secretary may designate such other officers of the 
Department in further order of succession to serve as Acting 
Secretary.
---------------------------------------------------------------------------

    Response: DHS disagrees with the comments. Under section 103(a)(1) 
of the INA, 8 U.S.C. 1103(a)(1), the Secretary of Homeland Security is 
charged with the administration and enforcement of the INA and all 
other immigration laws (except for the powers, functions, and duties of 
the Secretary of State and Attorney General). The Secretary is also 
authorized to delegate his or her authority to any officer or employee 
of the agency and to designate other officers of the Department to 
serve as Acting Secretary. See 8 U.S.C. 103 and 6 U.S.C. 113(g)(2). The 
HSA further provides that every officer of the Department ``shall 
perform the functions specified by law for the official's office or 
prescribed by the Secretary.'' 6 U.S.C. 113(f).
    On April 9, 2019, then-Secretary Nielsen, who was Senate confirmed, 
used the authority provided by 6 U.S.C. 113(g)(2) to establish the 
order of succession for the Secretary of Homeland Security. This change 
to the order of succession applied to any vacancy. Exercising the 
authority to establish an order of succession for the Department 
pursuant to 6 U.S.C. 113(g)(2), superseded the FVRA and the order of 
succession found in E.O. 13753.
    As a result of this change and pursuant to 6 U.S.C. 113(g)(2), Mr. 
McAleenan, who was Senate confirmed as the commissioner of CBP, was the 
next successor and served as Acting Secretary without time limitation. 
Acting Secretary McAleenan was the signing official of the proposed 
rule. Acting Secretary McAleenan subsequently amended the Secretary's 
order of succession pursuant to 6 U.S.C. 113(g)(2), placing the Under 
Secretary for Strategy, Policy, and Plans position third in the order 
of succession below the positions of the Deputy Secretary and Under 
Secretary for Management. Because these positions were vacant when Mr. 
McAleenan resigned, Mr. Wolf, as the Senate confirmed Under Secretary 
for Strategy, Policy, and Plans, was the next successor and began 
serving as the Acting Secretary.
3. Litigation
    Several commenters mentioned recent litigation and court decisions 
which they believed affected the Secretary's authority to promulgate 
this final rule. DHS addresses each case in turn below.

a. East Bay Sanctuary Covenant v. Trump

    Comment: Several commenters cited the injunction in East Bay 
Sanctuary Covenant v. Trump, 354 F.Supp.3d 1094 (N.D. Cal. 2018) 
(``East Bay I''), issued by the U.S. District Court for the Northern 
District of California as a reason why DHS could not publish this rule. 
In East Bay I, plaintiffs challenged an interim rule jointly published 
by DHS and DOJ, ``Aliens Subject to a Bar on Entry Under Certain 
Presidential Proclamations; Procedures for Protections of Claims, 83 FR 
55934 (Nov. 9, 2018), which essentially barred asylum to any alien who 
entered the United States outside of a U.S. port of entry. The East Bay 
I court issued a temporary restraining order (TRO) on November 19, 
2018, and a preliminary injunction in December 2018 that enjoined DHS 
from denying asylum to aliens who failed to present themselves at a 
U.S. port of entry.\100\ On February 28, 2020, the Ninth Circuit 
affirmed the district court's decision granting preliminary injunctive 
relief. East Bay Sanctuary Covenant v. Trump, No. 18-

[[Page 38558]]

17274, 2020 WL 962336 (9th Cir. Feb. 28, 2020).
---------------------------------------------------------------------------

    \100\ Several commenters also cited to district court decisions 
in two cases which have subsequently been consolidated--O.A. v. 
Trump, Civ. No. 18-2718/S.M.S.R. v. Trump, Civ. No. 18-2838 
(hereinafter ``O.A. v. Trump''), 404 F.Supp.3d 109 (D.D.C 2019). The 
commenters citing these cases made similar arguments that this rule 
was inconsistent with the courts' decisions finding that the interim 
final rule was consistent with INA section 208(a), 8 U.S.C. 1158(a), 
which allows any alien to apply for asylum regardless of manner of 
entry.
---------------------------------------------------------------------------

    Several commenters stated that this rule was the government's 
attempt to ``end run'' the TRO in East Bay I and punish people who were 
trying to seek asylum. Another commenter stated that this rule was an 
attempt to deter the same group of aliens that the court enjoined DHS 
from denying asylum because of their manner of entry by creating an 
absolute bar to employment authorization. One commenter argued that 
people are entitled by law to seek asylum and as such, after a 
reasonable time, should be permitted to work while they pursue their 
claims. Another commenter, citing the interim rule and East Bay I, 
claimed that the INA and the courts have made clear that aliens who 
enter the United States illegally are ``truly in need of protection'' 
and that they have a right to claim asylum, regardless of their manner 
of entry. The commenter argued that based on this fundamental 
principle, the court struck down DHS's attempt to block aliens who 
entered illegally from applying for asylum and found that the rule was 
arbitrary and capricious.
    Response: DHS disagrees with the commenters assertions. The 
district court's decision in East Bay I only addressed who is eligible 
to apply for asylum. It did not address employment authorization for 
asylum seekers. This final rule does not conflict with East Bay I and 
is consistent with section 208(d)(2) of the INA, 8 U.S.C. 1158(d)(2), 
the statute governing the Secretary's discretion to grant employment 
authorization to asylum seekers. DHS also disagrees with the 
commenters' characterization of its purpose in promulgating the rule. 
DHS does not intend to bypass the court's decisions in East Bay I. DHS 
has a strong interest in prioritizing bona fide asylum seekers over 
those who abuse the asylum system for economic reasons. In addition, 
DHS is not prohibiting all asylum seekers who enter the United States 
illegally from obtaining employment authorization. An asylum seeker who 
enters illegally may still qualify for employment authorization if he 
or she presents to DHS within 48 hours of entry and expresses a fear of 
persecution or an intent to seek asylum, and establishes good cause for 
the illegal entry. Further, this rule does not deter legitimate asylum 
seekers who are fleeing persecution from entering the United States, 
nor does it bar them from obtaining employment authorization once they 
are granted asylum or if they qualify for discretionary employment 
authorization pursuant to the provisions of this rule. Bona fide 
asylum-seekers urgently needing protection from persecution for whom 
the U.S. is the first country available in which to seek refuge will 
apply for asylum regardless of when they would receive work 
authorization.
    Finally, the commenters misstate DHS' justification for barring 
illegal entrants from employment authorization. DHS has a strong 
interest in ensuring a safe and orderly immigration system and securing 
its borders. DHS has provided exceptions to the illegal entry 
provision, which reflects DHS's understanding that some asylum seekers 
may have good cause to enter the United States illegally. However, DHS 
seeks to incentivize aliens to comply with the law to the extent 
possible, to avoid injury and death associated with illegal entries, 
and to reduce government expenditures related to detecting, 
apprehending, processing, housing, and transporting escalating numbers 
of illegal entrants.
b. Mendez Rojas v. Johnson
    Comment: Several commenters argued that the final rule does not 
make an exception for those aliens who are protected by the interim 
joint settlement agreement in Mendez Rojas v. Johnson, 2018 WL 1532715 
(W.D. Wash. Mar. 29, 2018). In Mendez Rojas, the court held that DHS 
failed to adequately advise asylum applicants of the requirement to 
file an asylum application within one year of entry into the United 
States. The commenters argued that the rule would undermine the interim 
joint settlement agreement and unlawfully penalize the class members of 
the Mendez Rojas decision.
    Response: With respect to the claim that this rulemaking would 
affect Mendez-Rojas class members, DHS does not comment on ongoing 
litigation.
c. Rosario v. USCIS
    Comment: Several commenters argued that the rule contravenes the 
holding of Rosario v. USCIS, 365 F. Supp. 3d 1156 (W.D. Wash. 2018). In 
Rosario, plaintiffs brought a class action to compel USCIS to comply 
with the 30-day processing timeframe for adjudicating EAD applications. 
The court enjoined USCIS for failing to adhere to that timeframe. Two 
commenters referenced the court's opinion in Rosario and discussed the 
potential negative impact any delay in granting employment 
authorization would have on asylum seekers. One commenter stated that 
the rule intentionally delays the ability of asylum seekers to obtain 
work authorization and that the change was a drastic departure from 
longstanding policy and the recent court order in Rosario. Another 
commenter stated that the changes made by this rule to extend the 
waiting period, plus the elimination of the 30-day EAD processing 
requirement in the NPRM ``Removal of 30-day Processing Provision for 
asylum Applicant-Related Form I-765 Employment Authorization 
Applications,'' DHS Docket No. USCIS-2018-0001, would make employment 
authorization for asylum seekers ``virtually unattainable.'' The 
commenter argued that since the Rosario decision, even with higher 
workloads, USCIS has been able to adjudicate EADs within the 30-day 
timeframe. Two commenters also discussed the history of the 30-day EAD 
processing regulation and noted that the Court stated that the 
government had already considered the possibility of unsuccessful 
asylum claims but chose to expedite processing of such claims above the 
merits of the underlying asylum claim. Rosario, 365 F. Supp. at 1160-
61.
    Response: DHS does not believe this rule contravenes the Rosario 
decision. The decision in Rosario was predicated on a regulatory scheme 
requiring USCIS to process initial (c)(8) EAD requests within 30 days, 
provided that the application was filed after the asylum application 
had been pending for a minimum of 150 days. The Rosario court order 
simply enforced the self-imposed 30-day processing requirement.
    As noted in the separate rule eliminating the 30-day processing 
timeframe, DHS Docket No. USICS-2018-0001, DHS has determined that 
changing conditions, including increased vetting requirements and 
rising application volumes, render the former regulatory scheme 
outdated and too onerous for USCIS to continue administering. Further, 
USCIS has only been able to comply with the Rosario order by 
temporarily shifting resources from other product lines to comply with 
the court injunction. DHS strives to ensure that all applicants seeking 
an immigration benefit have their cases adjudicated fairly and in a 
timely manner. However, where DHS is required to adjudicate a form type 
pursuant to an outdated requirement that is unreasonable under current 
circumstances, it can often delay other applicants seeking immigration 
benefits. Finally, DHS specified in the NPRM that USCIS would not apply 
the provisions of this final rule to any Rosario class member whose 
initial application for an EAD is pending with USCIS on the effective 
date of the final rule so long as the Rosario injunction remains in 
effect.

[[Page 38559]]

d. Ramos v. Thornburgh
    One commenter cited the district court's decision in Ramos v. 
Thornburgh, 732 F. Supp. 696 (E.D. Tex. 1989), and argued that any 
impediment to an asylum seeker's right to work threatens their ability 
to survive and that the survival of asylum seekers outweighs any 
prospective benefit from such an impediment.
    Response: While the court in Ramos v. Thornburgh notes potential 
considerations for asylum seekers applying for work authorization, DHS 
maintains that for legitimate asylees, an asylum grant leads to 
immediate employment authorization and certainty of status and 
humanitarian protections. Further, the section 208(d)(2) of the INA, 8 
U.S.C. 1158(d)(2), states that ``[a]n applicant for asylum is not 
entitled to employment authorization.'' This Final Rule is not 
eliminating EADs but extending the waiting period to apply for 
employment authorization and revising the requirements an alien must 
meet to obtain a discretionary EAD.
4. U.S. Obligations Under International Law
    Comment: Many commenters stated that the rule violates the United 
States' obligations under international law and the 1951 Convention 
relating to the Status of Refugees, 19 U.S.T. 6259, 189 U.N.T.S. 137 
(Jul. 28, 1951) (hereinafter referred to as ``Refugee Convention''), 
articles 2 through 34 of which are binding on the United States by 
incorporation in the 1967 Protocol relating to the Status of Refugees, 
19 U.S.T. 6223, 606 U.N.T.S. 267 (Oct. 4, 1967). See INS v. Stevic, 467 
U.S. 407, 416 (1984). One commenter argued that the rule discourages 
and criminalizes asylum seekers and goes beyond the principles 
expressed in the Refugee Convention. Several commenters believed that 
the rule violated the Refugee Convention because it impermissibly 
limited refugees' access to employment and created categorical bars to 
protection. The commenters also stated that the rule created more 
obstacles to employment and increased the chances that a bona fide 
refugee would not be accorded ``favorable'' treatment. Several 
commenters argued that the rule contravened the Refugee Convention and 
1967 Protocol because it was far more restrictive in terms of access to 
work than what was provided by other State Parties, such as Canada, 
with whom the United States has a Safe Third Country Agreement. The 
commenters argued that the rule was contrary to the international right 
to work recognized in Article 6 of the International Covenant on 
Economic, Social and Cultural Rights, Article 45 of the Organization of 
the American States, 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. Another commenter argued that the proposal 
improperly relies on the Convention against Torture and Other Cruel, 
Inhuman or Degrading Treatment or Punishment (CAT), arguing that the 
protections provided by CAT are insufficient to support affected asylum 
seekers harmed by their limited ability to apply for employment 
authorization.
    Several other commenters referred to Articles 17 and 31 of the 
Refugee Convention, arguing that the rule violates the ``language and 
spirit'' of the convention. One commenter argued that that Article 17 
gives refugees the right to engage in employment. Another commenter, 
citing the United Nations High Commissioner for Refugees (UNHCR), 
Handbook on Procedures and Criteria for Determining Refugee Status, and 
UNHCR's interpretation of Article 31, argued that since an alien is 
considered a refugee as soon as he or she meets the refugee definition 
and not when a state recognizes his or her status as a refugee, an 
asylum seeker should similarly be considered lawfully in the United 
States with the consent of the government and thus eligible to work 
even if his or her asylum case has not been decided. The commenter also 
argued that Article 17 of the Convention provides refugees ``lawfully 
staying'' in a territory ``the right to engage in wage-earning 
employment,'' noting that UNHCR interpreted the term ``stay'' to 
``embrace both permanent and temporary residence'' and that the term 
``lawful'' includes circumstances when ``the stay in question is known 
and not prohibited.'' The commenter further argued that, because 
international refugee law makes clear that an individual is a refugee 
as soon as he or she meets the refugee definition, as opposed to when a 
state recognizes his or her status as such, an asylum seeker should be 
considered as ``lawfully staying'' when he or she initiates his or her 
asylum application, and that the filing of the asylum application while 
present in the United States reflects the consent of the U.S. 
government.
    Several other commenters argued that Article 31 of the Refugee 
Convention specifically prohibits States from imposing penalties on 
refugees on account of their illegal entry or presence and to deny 
employment authorization to asylum seekers essentially was a 
``penalty.'' Another commenter argued that Articles 17 and 18 of the 
Convention explicitly protects the rights of refugees and asylum 
seekers to obtain work and self-employment in host countries. Another 
commenter also argued that the extended waiting period is inconsistent 
with the Refugee Convention and the INA. That commenter said that under 
the modern asylum system created by the 1980 Refugee Act, the 
government anticipated that asylum applications would be processed 
quickly, and created a 180-day processing deadline to ensure that 
employment authorization could be issued expeditiously. A commenter 
argued that DHS is obligated under domestic and international law to 
accept asylum seekers and ensure that they are eligible for employment 
authorization as soon as possible. Another commenter added that the 
extended waiting period undermines asylum seekers' rights to pursue 
claims under domestic and international law.
    Finally, one commenter argued that without the right to work 
legally, some asylum seekers would be ``forced'' back to countries 
where their lives and freedom could be in danger, thereby violating the 
U.S. obligations of non-refoulement under international law.
    Response: DHS disagrees that this rule violates or is inconsistent 
with U.S obligations under international laws. DHS first notes that, 
although the United States is a party to the 1967 Protocol, which 
incorporates Articles 2 to 34 of the 1951 Refugee Convention, this 
treaty is not self-executing; consequently, it is not directly 
enforceable in U.S law. It is the domestic implementing law that 
governs, and Supreme Court and other case law makes clear that the 
Protocol serves only as a useful guide in determining congressional 
intent in enacting the Refugee Act of 1980 because the Act sought to 
bring U.S. law into conformity with the Protocol. 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).
    Congress implemented many of the provisions of the Refugee 
Convention through the passage of the Refugee Act of 1980, which 
included immigration provisions governing withholding of removal, 
adjustment of status for asylees and refugees, and the bars to asylum 
eligibility for aliens who were convicted of a serious crime, were 
persecutors, or were a danger to the security of the United States. The 
United States has implemented Article 34 of the 1951 Convention--which 
provides that State Parties ``shall as far as possible facilitate the 
assimilation and naturalization of

[[Page 38560]]

refugees''--through the INA's asylum provision, section 208, 8 U.S.C. 
1158. See INS v. Cardoza-Fonseca, 480 U.S. 421, 441 (1987). 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, but DHS 
is doing so pursuant to its discretion under the INA. INA section 
208(d)(2), 8 U.S.C. 1158(d)(2).
    DHS also notes that the INA provisions and DHS regulations 
applicable to refugees and asylees fully comply with of Articles 17 and 
31 of the Refugee Convention. The commenters argue that this rule 
violates Article 17 because DHS is depriving asylum seekers the right 
to work in the United States.\101\ However, paragraphs (1) and (3) of 
Article 17 related to wage-earning employment specifically state:
---------------------------------------------------------------------------

    \101\ Most of the comments related to Article 17 of the Refugee 
Convention, though one comment referenced Article 18 in conjunction 
with Article 17. DHS' response to the comments on Article 17 apply 
to the reference to Article 18 as well.

    ``1. The Contracting State shall accord to refugees lawfully 
staying in their territory the most favourable treatment accorded to 
nationals of a foreign country in the same circumstances, as regards 
to engage in wage-earning employment.
    . . . .
    ``3. The Contracting States shall give sympathetic consideration 
to assimilating the rights of all refugees with regard to wage-
earning employment to those of nationals, and in particular of those 
refugees who have entered their territory pursuant to programmes of 
labour recruitment or under immigration schemes.'' (Emphasis added)

    Nothing in Article 17 requires DHS to provide employment 
authorization to aliens seeking refugee status or asylum before DHS or 
an IJ has determined that they meet the definition of a refugee under 
101(a)(42) of the INA, 8 U.S.C. 1101(a)(42), and granted status on that 
basis. Nor does Article 17 limit DHS's ability to place restrictions on 
(c)(8) EADs before an alien is granted asylum. Once DHS or an IJ has 
determined that an alien meets the definition of a refugee and has been 
granted status, the alien is immediately authorized to work pursuant to 
his or her status, consistent with the statute and regulations 
governing employment authorization for those who have been granted 
refugee status or asylum. Nothing in the rule changes this treatment of 
employment authorization for refugees or asylees.
    DHS also believes that this rule is compliant with Article 31 of 
the Refugee Convention as it relates to refugees who enter the United 
States illegally. Article 31 specifically states:

    ``1. The Contracting States shall not impose penalties, on 
account of their illegally entry or presence, on refugees who, 
coming directly from a territory where there life or freedom was 
threatened in the sense of article 1, enter or are present in their 
territory without authorization, provided they present themselves 
without to the authorities and show good cause for their illegal 
entry or presence.
    ``2. The Contracting States shall not apply to the movements of 
such refugees restrictions other than those which are necessary and 
such restrictions shall only be applied until their status in the 
country is regularized or they obtain admission into another 
country. The Contracting States shall allow such refugees a 
reasonable period and all the necessary facilities to obtain 
admission into another country.''

    DHS views the Article 31(1) restriction on imposition of 
``penalties'' on asylum seekers as not encompassing discretionary 
ancillary benefits such as employment authorization which the Secretary 
may grant to aliens in the United States, notwithstanding their 
immigration status Cf. Mejia v. Sessions, 866 F.3d 573, 588 (4th Cir. 
2017) (denying illegal re-entrants the opportunity to apply for the 
discretionary relief of asylum does not constitute a penalty, as 
considered by Art. 31(1) of the Refugee Convention). Even if DHS's 
proposed change could be considered a ``penalty'' within the meaning of 
Article 31(1), DHS believes that its ``good cause'' exception is 
sufficient to address any concerns about an asylum seeker's ability to 
seek discretionary employment authorization after illegal entry into 
the United States. Aliens who establish good cause for entering or 
attempting to enter the United States at a place and time other than 
lawfully through a U.S. port of entry and, within 48 hours, express to 
DHS a fear of persecution or an intent to seek asylum, will not be 
barred from applying for employment authorization after the required 
waiting period.
5. Administrative Procedure Act
    Comment: Several commenters argued that the rulemaking violates the 
APA, 5 U.S.C. 551 et. seq., and is arbitrary and capricious. Other 
commenters believed the rule is arbitrary and capricious because, in 
their view, the rationale for the changes was insufficient, or the 
explanations provided disregarded relevant facts or prior policies. For 
example, one commenter cited to a joint interim rule by the former INS 
and DOJ-EOIR, Inspection and Expedited Removal of Aliens; Detention and 
Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 
62 FR 10312 (Mar. 6, 1997), saying that the rule was meant to ensure 
that bona fide asylum seekers obtain employment as quickly as possible. 
The commenter also claimed that the government stated in the interim 
rule that a period beyond the 150-day for granting an EAD was a period 
which would not be appropriate to deny work authorization to an alien 
whose claim has not been adjudicated. One commenter stated that none of 
the rationales offered in the rule, especially as it relates to the 
waiting period for an EAD, strike the appropriate balance between the 
concerns about incentives to file fraudulent or frivolous applications 
and the hardships on applicants.
    Several commenters believed the rule was ultra vires and beyond 
DHS's authority. One commenter argued that, although the statute gave 
the agency some discretion regarding employment authorization 
generally, it did not authorize the agency to impose its own waiting 
period instead of the one expressly provided by Congress.
    Several commenters argued that the rule is arbitrary and capricious 
under the APA for its inadequate evaluation of its impacts. The impacts 
listed by the commenters included the deterrence of bona fide 
applicants, impacts to state workforces, labor- and civil-rights law 
enforcement, and economic losses from foregone, rather than merely 
delayed, EADs. The commenters also argued that the rule's proffered 
justifications were unreasonable and stated that deterring aliens from 
exercising a humanitarian ``right enshrined in INA and international 
law'' could not justify blocking ``poor immigrants.'' The commenters 
further stated that there is no evidence that low-income applicants 
have less meritorious cases than wealthy applicants, and that the 
proposal arbitrarily excludes the former.
    Response: DHS will address the comments relating to the specific 
provisions in the Final Rule in greater detail below, including impacts 
of the rule's provisions. However, as to the general comments, DHS 
disagrees with the arguments that this rulemaking failed to provide a 
sufficient rationale to support the amendments, is ultra vires, or is 
generally arbitrary and capricious.
    Under the APA, a court may review the Secretary's exercise of 
discretion under the deferential ``arbitrary and capricious'' standard. 
5 U.S.C. 706(2)(A). The court's review is narrow, and the court can 
only review the Secretary's exercise of discretion to determine if 
``the Secretary examined `the relevant data' and articulated `a 
satisfactory explanation' for his decision, including a rational

[[Page 38561]]

connection between the facts found and the choice made.'' Dep't of 
Commerce v. New York,_U.S._, 139 S.Ct. 2551, 2569 (June 27, 
2019)(citations omitted). Courts may not substitute their judgment for 
the Secretary's ``but instead must confine ourselves to ensuring that 
he remained `within the bounds of reasoned decision-making.' '' The 
courts also have noted that agencies are not bound by prior policies or 
interpretations of their statutory authority. See, e.g., Rust v. 
Sullivan, 500 U.S. 173, 186-87 (1991) (acknowledging that changed 
circumstances and policy revision may serve as a valid basis for 
changes in agency interpretations of statutes); Chevron, U.S.A., Inc. 
v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 863-64 (1984) (``The 
fact that the agency has from time to time changed its interpretation 
of the term `source' does not, as respondents argue, lead us to 
conclude that no deference should be accorded the agency's 
interpretation of the statute. An initial agency interpretation is not 
instantly carved in stone. On the contrary, the agency, to engage in 
informed rulemaking, must consider varying interpretations and the 
wisdom of its policy on a continuing basis.''); Motor Vehicle Mfrs. 
Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983) 
(agencies ``must be given ample latitude to `adapt their rules and 
policies to the demands of changing circumstances' '' (quoting Permian 
Basin Area Rate Cases, 390 U.S. 747, 784 (1968))). In addition, an 
agency need not prove that the new interpretation is the best 
interpretation but should acknowledge that it is making a change, 
provide a reasoned explanation for the change, and indicate why it 
believes the new interpretation of its authority is better. See 
generally FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009).
    DHS disagrees that this rulemaking is arbitrary and capricious. 
Significantly, although DHS is not bound by statements made in prior 
rulemakings, this rule builds on prior amendments to regulations 
managing asylum applications, interviews, and employment authorization 
based on a pending asylum application. For example, previous 
rulemakings set a mandatory waiting period for (c)(8) EADs, articulated 
applicant-caused delays that would prolong that wait, and prescribed 
the effects of failing to appear for an asylum interview. Moreover, the 
prior amendments were triggered by similar realities, albeit on a 
smaller scale, that the agency faces today. The rationale and 
justifications for those amendments are in line with those expressed 
here--namely, addressing significant influxes of aliens abusing the 
asylum system for economic benefit and ballooning asylum adjudication 
backlogs, and the desire to prioritize bona fide asylum 
applicants.\102\ DHS believes that this rulemaking is necessary to 
achieve the several purposes expressed herein and that it is 
consistent, both in rationale and the mechanisms employed, with 
previous efforts to preserve the integrity of U.S. humanitarian 
programs.
---------------------------------------------------------------------------

    \102\ See, e.g., INS final rule, Rules and Procedures for 
Adjudication of Applications for Asylum or Withholding of 
Deportation and for Employment Authorization, 59 FR 62284-01 (Dec. 
5, 1994) (The rulemaking intended to ``discourage applicants from 
filing meritless claims solely as a means to obtain employment 
authorization,'' so that asylum officers and IJ can ``concentrate 
their efforts on approving meritorious [asylum] claims'').
---------------------------------------------------------------------------

    DHS acknowledges that it is changing longstanding eligibility 
requirements for (c)(8) employment authorization. While these stricter 
requirements stand to have a significant impact on those who would have 
qualified for a (c)(8) EAD under prior regulations, DHS believes that 
this rule is not ultra vires and falls squarely within the Secretary's 
authority under sections 103 and 208 of the INA, 8 U.S.C. 1103, 1158, 
and that it complies with the United States' obligations under 
international law. As noted earlier, asylum seekers are not entitled to 
employment authorization under the INA and the Secretary is under no 
obligation to provide employment authorization to asylum seekers. 
Further, it is within the Secretary's discretion to bar employment 
authorization to asylum seekers outright. See INA section 208(d)(2), 8 
U.S.C. 1158(d)(2). Instead of instituting an outright bar to employment 
authorization, however, the Secretary has chosen to exercise his 
discretion more narrowly and permit certain asylum seekers to obtain 
employment authorization if they meet the requirements specified in 
this rule. In addition, contrary to the assertion of one commenter, the 
180-day waiting period specified in section 208(d)(2) of the INA does 
not in any way limit the Secretary's authority to impose additional 
restrictions on applying for employment authorization or to extend the 
timeframe beyond 180 days.
    DHS has explained why it believes the new rule is necessary in 
light of the country's overwhelmed asylum system--it seeks to restore 
integrity to the asylum process, prevent aliens with significant 
criminal convictions from obtaining a discretionary benefit, reduce the 
incentives for illegal migration, deter frivolous, fraudulent, and non-
meritorious filings, and ensure that bona fide asylum seekers are able 
to have their claims decided expeditiously so they can receive the 
protection and benefits available for refugees and asylees in the 
United States.
    By engaging in this rulemaking, DHS has satisfied its obligations 
under the APA and given the public ample opportunity to comment on the 
proposals within this rule. DHS carefully considered the public 
comments on this rule and made adjustments based on the input it 
received. DHS has also articulated its rationale for the changes in 
this rule and it is in keeping with the immigration priorities and 
policies of the Administration as they relate to the management of 
humanitarian immigration programs. Accordingly, DHS believes this rule 
has been issued in compliance with the APA.
6. Constitutional Concerns
    Several commenters argued that the provisions in the rule were 
unconstitutional based on a variety of grounds. DHS addresses the 
various Constitutional claims separately below.
a. Discrimination and the Equal Protection Clause of the U.S. 
Constitution
    Comment: One commenter stated the rule was unconstitutional because 
it was based on racial animus towards Latin American asylum seekers and 
was ``part of an insidious agenda of discrimination.'' The commenter 
argued that DHS should withdraw the rule since the rule was likely 
``animated by unconstitutional prejudice and animus.'' One commenter 
argued that the rule violates the 14th amendment because of its 
disproportionate impact on non-white applicants and its racially 
discriminatory animus. Another commenter stated that the rule 
disproportionately impacts black and Latino communities, especially in 
terms of access to healthcare. One commenter also believed that the 
rule was racially motivated, pointing to the 30-day and Fee 
rulemakings, Third Country Transit Bars, and the Migrant Protection 
Protocols (MPP), and ``family separations policy,'' to support the 
commenter's position. The commenter argued that the administration's 
focus on the U.S.-Mexico border exhibited discrimination against Latino 
immigrants.
    Response: DHS rejects the comments asserting that this rule is 
based on racial animus and is discriminatory. Nowhere in the rule does 
DHS draw distinctions between asylum seekers based on their race, 
national origin, or religion--

[[Page 38562]]

protected classifications which implicate the Equal Protection Clauses 
of the Fifth and Fourteenth Amendments. See, e.g., Korematsu v. U.S., 
323 U.S. 24. This rule applies equally to all asylum seekers, 
regardless of their race, nationality, age, gender, or religion, and 
therefore does not have a discriminatory effect on asylum seekers. 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. Even though the demographics of asylum seekers during 
any particular era or from any particular part of the world may change, 
this fact did not influence DHS in this rulemaking. Further, this rule 
applies equally to all aliens who enter or attempt to enter the United 
States, whether at the southern border, the northern border, or any of 
the more than 300 land, air and sea ports of entry.
    To the extent that commenters are arguing that DHS is 
discriminating because it is treating asylum seekers differently than 
other aliens or immigrants to the United States, or U.S. citizens, DHS 
notes that the U.S. Supreme Court has long recognized Congress's 
authority to draw such distinctions. See, e.g., Demore v. Kim, 538 U.S. 
510, 521-522 (2018) (``[T]his Court has firmly and repeatedly endorsed 
the proposition that Congress may make rules as to aliens that would be 
unacceptable if applied to citizens. [A]ny policy toward aliens is 
vitally and intricately interwoven to the conduct of foreign relations, 
the war power, and the maintenance of a republican form of 
government.''). See also Mathews v. Diaz, 426 U.S. 67, 80-83 (1976) 
(holding that providing an income benefit to one class of aliens and 
withholding the same benefit from a similar class of aliens did not 
violate the Due Process Clause, and that the decision to withhold a 
benefit ``may take into account the character of the relationship 
between the alien and this country'').
    This rulemaking addresses DHS' interest in deterring unlawful entry 
into the United States, the intentional abuse of the U.S. asylum 
system, and preventing illegal entrants and aliens with significant 
criminal histories from obtaining a discretionary benefit. As a 
sovereign nation, we must secure our borders and preserve the rule of 
law, which is fundamental to the maintenance of our republican form of 
government. Asylum applicants must establish, inter alia, that their 
government is unable or unwilling to protect them. Asylum applicants 
commonly allege that they are fleeing rampant crime and that the 
governments in their home countries fail to protect them by enforcing 
the law. It follows that aliens seek to enter the United States because 
it respects and enforces its laws. To stand idly by while more than 
850,000 aliens sought to illegally enter the United States in a single 
year, not accounting for those aliens that CBP did not apprehend, is to 
forfeit sovereignty and erode the very rule of law that attracts and 
protects bona fide asylees.\103\ To continue to provide an ancillary 
discretionary benefit with virtually no eligibility criteria and nearly 
limitless renewal opportunity where approximately 80 percent of the 
beneficiaries cannot establish eligibility for asylum, serves to 
further erode the rule of law. Accordingly, DHS is implementing this 
rule and other rules and programs not to discriminate against any 
class, but as an act of sovereignty, to provide security, and to 
preserve the integrity of the asylum system.
---------------------------------------------------------------------------

    \103\ See CBP Southwest Border Migration Statistics FY 2019, 
available at https://www.cbp.gov/newsroom/stats/sw-border-migration/fy-2019.
---------------------------------------------------------------------------

b. Due Process
    Comment: Several commenters argued that the changes in the rule 
violated the Fifth Amendment and Due Process clause of the U.S. 
Constitution. One commenter argued that the rule would deprive asylum 
seekers of ``life and liberty and the pursuit of happiness.'' Another 
commenter argued that the rule violated the ``spirit'' of the U.S. 
Constitution and Congressional intent as it related to asylum seekers. 
One commenter argued that the rule violated the Suspension Clause and 
Due Process clause by not allowing asylum seekers to work while their 
cases are on appeal in the federal courts.
    One commenter argued that removing ``immigrants' right to work'' 
undermines their ability to pay for counsel and thus their access to 
due process under law. Another commenter cited the Constitutional 
prohibition on bills of attainder and guarantee of due process in 
arguing against ``punishing'' all asylum applicants for the fraudulent 
claims of some. A few commenters stated that denying EADs for 
unresolved arrests or pending charges is draconian and violates the due 
process clause of the Constitution.
    Response: DHS has considered commenters' concerns about due process 
in the asylum system and disagrees that this rule violates asylum 
applicants' due process rights. Nothing in this rule prevents an alien 
from seeking asylum, participating in the adjudication process, or from 
seeking administrative or judicial review of an adverse asylum 
decision.
    Contrary to the commenter's assertion, asylum applicants do not 
have a ``right to work.'' Throughout the INA, Congress has drawn clear 
distinctions between different classes of aliens and the benefits to 
which they are entitled. In the context of this rule, Congress drew 
distinctions between asylees and asylum applicants. Asylees have a 
``right to work,'' while asylum applicants do not.\104\ An asylee has 
established eligibility to remain in the United States and is conferred 
a host of benefits, including life-long residence in the United States 
(absent termination on limited grounds), and a pathway to U.S. 
citizenship. An asylum applicant has not established eligibility to 
remain in the United States--where the alien has no lawful status, DHS 
may not remove the alien to his or her home country while the 
application is pending. As discussed below, this distinction 
significantly affects the character of the relationship between the 
alien and the United States, and the benefits that the United States 
offers. In this rule, DHS is continuing to provide employment 
authorization to certain asylum applicants present in the United 
States, but is extending the waiting period for that benefit and is 
excluding certain applicants who enter illegally without good cause, 
who engage in certain significant criminal behavior, and who fail to 
timely file their applications as required by statute.
---------------------------------------------------------------------------

    \104\ Compare INA 208(c)(1)(B), 8 U.S.C. 1158(c)(1)(B), with INA 
208(d)(2), 8 U.S.C. 1158(d)(2).
---------------------------------------------------------------------------

    The eligibility distinctions drawn by DHS in this rule are 
analogous to those in Mathews v. Diaz, 426 U.S. 67 (1976). There, the 
Supreme Court found a Social Security Act provision constitutional 
where it denied an income benefit to all aliens unless they had been 
admitted for permanent residence and had resided in the United States 
for at least five years.\105\ The Court held that Congress permissibly 
distinguished LPRs with five years residence from all other aliens, 
including LPRs with less than five years' residents, and further, that 
this

[[Page 38563]]

distinction did not deprive the aliens of liberty or property without 
due process of law.\106\
---------------------------------------------------------------------------

    \105\ See Diaz, 426 U.S. at 78-79 (``The fact that all persons, 
aliens and citizens alike, are protected by the Due Process Clause 
does not lead to the further conclusion that all aliens are entitled 
to enjoy all the advantages of citizenship or, indeed, to the 
conclusion that all aliens must be placed in a single homogeneous 
legal classification. For a host of constitutional and statutory 
provisions rest on the premise that a legitimate distinction between 
citizens and aliens may justify attributes and benefits for one 
class not accorded to the other; and the class of aliens is itself a 
heterogeneous multitude of persons with a wide-ranging variety of 
ties to this country.'').
    \106\ Id., at 84.
---------------------------------------------------------------------------

    Similar to LPRs with five or more years of residence in the United 
States, the relative permanency of asylees strengthens the ties with 
this country and therefore they enjoy immediate and secure access to a 
``bounty'' of benefits, including employment authorization and its 
potential attendant income.\107\ In contrast, asylum applicants, a 
class who have yet to establish eligibility to remain in the country, 
have weaker ties to the United States and therefore have more limited, 
temporary access to the same ``bounty.'' \108\ The relationship between 
an asylum applicant and the United States is made even weaker where the 
applicant has diminished his or her chances of obtaining asylum by 
violating U.S. immigration and criminal laws, which is reflected in the 
narrowed EAD eligibility requirements in this rule.
---------------------------------------------------------------------------

    \107\ Id., at 80 (``Neither the overnight visitor, the 
unfriendly agent of a hostile foreign power, the resident diplomat, 
nor the illegal entrant, can advance even a colorable constitutional 
claim to a share in the bounty that a conscientious sovereign makes 
available to its own citizens and Some of its guests. The decision 
to share that bounty with our guests may take into account the 
character of the relationship between the alien and this country: 
Congress may decide that as the alien's tie grows stronger, so does 
the strength of his claim to an equal share of that munificence.'').
    \108\ Unlike asylum applicants, LPRs with less than five years 
of residence in the United States are employment authorized incident 
to status. However, Social Security benefits are reserved for those 
who are not receiving income from employment because they are 
retired, disabled, are dependents of beneficiaries, or are survivors 
of workers who have died. See Understanding The Benefits (Jan. 
2020), available at https://www.ssa.gov/pubs/EN-05-10024.pdf. Social 
Security income benefits are therefore analogous to income benefits 
derived from employment authorization.
---------------------------------------------------------------------------

    DHS recognizes that many aliens choose to hire counsel or seek pro 
bono assistance as they pursue their asylum claims, but disagrees that 
delaying or barring employment authorization while an asylum 
application is pending prevents access to due process under law. Aliens 
in immigration proceedings do not enjoy the same right to free counsel 
as defendants in criminal proceedings, but can obtain legal counsel and 
be represented in any immigration proceeding the alien chooses, at no 
cost to the Government.\109\ As provided by Congress, whether an 
alien's asylum application is being reviewed by USCIS, an IJ, the BIA, 
a Circuit Court of Appeals, or the United States Supreme Court, that 
alien ``is not entitled to employment authorization[.]'' INA 208(d)(2), 
8 U.S.C. 1158(d)(2). Thus, it is not a violation of an alien's due 
process rights if the Secretary chooses to restrict employment 
authorization during administrative or judicial review of a denied 
asylum claim. The Secretary may, in his or her discretion, establish 
regulations to provide employment authorization during any point in the 
review of the asylum application, or preclude employment authorization 
during the entire review process.
---------------------------------------------------------------------------

    \109\ INA sec. 292, 8 U.S.C. 1362 (``In any removal proceedings 
before an immigration judge and in any appeal proceedings before the 
Attorney General from any such removal proceedings, the person 
concerned shall have the privilege of being represented (at no 
expense to the Government) by such counsel, authorized to practice 
in such proceedings, as he shall choose.'').
---------------------------------------------------------------------------

    Precluding employment authorization during all or part of the 
asylum review process also is consistent with the longstanding 
statutory and regulatory framework. For example, in the 1994 final 
rule, as in this rulemaking, INS provided that an alien whose asylum 
application is denied during the 150-day waiting period would never be 
eligible for an EAD, even if the alien pursued an administrative appeal 
or sought judicial review of the denial.\110\ Further, in 1996, 
Congress expressly prohibited DHS from providing employment 
authorization to an asylum applicant during the 180-day waiting period 
while simultaneously mandating that initial asylum claims should be 
adjudicated in 180 days or less, absent exceptional circumstances.\111\ 
When read together, it is apparent that Congress endorsed separating 
asylum adjudications from employment authorization, and recognized that 
the alien would not be employed during the adjudication of the asylum 
application, and very likely during judicial review. As noted in the 
proposed rule, ``the 365-day period was based on an average of the 
current processing times for asylum applications which can range 
anywhere from 6 months to over 2 years, before there is an initial 
decision, especially in cases that are referred to DOJ-EOIR from an 
asylum office.'' The 1994 rule set a 180-day EAD waiting period 
anticipating a 180-day or shorter asylum application adjudication 
period when the volume of cases was significantly lower than the 
present day levels. The current rule sets a 365-day EAD waiting period 
based on an average adjudication time that often stretches well beyond 
two years. DHS anticipates that by reducing the adjudication backlog, 
this adjudication time will shorten.
---------------------------------------------------------------------------

    \110\ See 62 FR 10337 (March 6, 1997) (``An applicant whose 
asylum application has been denied by an asylum officer or by an 
immigration judge within the 150-day period shall not be eligible to 
apply for employment authorization. If an asylum application is 
denied prior to a decision on the application for employment 
authorization, the application for employment authorization shall be 
denied.'') See amended 8 CFR 208.7(a)(iii)(E) (An asylum applicant 
is not eligible for an EAD if ``[a]n asylum officer or an 
Immigration Judge has denied the applicant's asylum application 
within the 365-day period or before the adjudication of the initial 
request for employment authorization.'').
    \111\ See Omnibus Consolidated Appropriations Act, 1997, Pl 104-
208, September 30, 1996, 110 Stat 3009. INA 208(d)(2), 8 U.S.C. 
1158(d)(2) states, ``[a]n applicant who is 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 208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii) states, 
``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 an 
application is filed.''
---------------------------------------------------------------------------

    DHS believes that restricting access to asylum applicants' 
employment authorization during a period of judicial review is 
necessary to ensure that aliens who have failed to establish 
eligibility for asylum during multiple levels of administrative review 
(before the asylum officer and/or the IJ, and the BIA) do not abuse the 
appeals processes in order to remain employment authorized. As noted 
above, the relationship between an asylum applicant and the United 
States is made weaker where the applicant's chances of receiving asylum 
are diminished, here by failing to establish eligibility for asylum 
through two or three levels of administrative review. The termination 
provision narrows (c)(8) EAD eligibility commensurate with the 
attenuation from asylum eligibility after multiple, successive asylum 
denials.
    DHS acknowledges that this provision, along with others in this 
rule, may negatively impact those aliens who succeed in challenging 
their asylum denials upon judicial review. However, it is necessary to 
remove the incentive of EAD eligibility during judicial review that 
existed under the previous regulation, which amounted in most cases to 
several additional years of employment authorization after multiple 
asylum denials. Returning to Diaz, the Supreme Court held that barring 
all aliens, including LPRs with less than five years' residence, from 
drawing Social Security benefits was permissible under the due process 
clause despite the potential for harm experienced by those who failed 
to meet the eligibility threshold drawn by the statute.\112\ Although 
aliens' due process

[[Page 38564]]

rights are protected in the United States, this does not require DHS to 
provide access to income via an employment authorization document 
during any point in the asylum adjudication process.\113\
---------------------------------------------------------------------------

    \112\ See Diaz, 426 U.S. at 83 (``We may assume that the five-
year line drawn by Congress is longer than necessary to protect the 
fiscal integrity of the program. We may also assume that unnecessary 
hardship is incurred by persons just short of qualifying. But it 
remains true that some line is essential, that any line must produce 
some harsh and apparently arbitrary consequences, and, of greatest 
importance, that those who qualify under the test Congress has 
chosen may reasonably be presumed to have a greater affinity with 
the United States than those who do not.'').
    \113\ Id., at 78 (``The fact that all persons, aliens and 
citizens alike, are protected by the Due Process Clause does not 
lead to the further conclusion that all aliens are entitled to enjoy 
all the advantages of citizenship or, indeed, to the conclusion that 
all aliens must be placed in a single homogeneous legal 
classification.'').
---------------------------------------------------------------------------

    With regard to the commenter's claim that the rule violates the 
Suspension Clause of the U.S. Constitution, Art. I, Sec.  9, cl. 2, and 
constitutes a bill of attainder under the U.S. Constitution, Art. I, 
Sec.  9, cl. 3, DHS respectfully disagrees. This rule does not in any 
way implicate or address habeas petitions and it does not unlawfully 
suspend the writ of habeas corpus. This rule also does not address the 
detention of aliens or the release of aliens from custody. The rule 
does not ``punish'' asylum seekers by delaying their ability to obtain 
employment authorization until their asylum claim is decided. This rule 
simply provides the conditions under which employment may be 
authorized, pursuant to the Secretary's discretionary statutory 
authority to provide (or not provide) employment authorization to 
asylum seekers.
    With regard to bills of attainder, the Supreme Court has stated 
that the Bill of Attainder Clause applies only to Congress, noting that 
``[t]he distinguishing feature of a bill of attainder is the 
substitution of a legislative for a judicial determination of guilt.'' 
De Veau v. Braisted, 363 U.S. 144, 160 (1960) (citation omitted). A 
bill of attainder has been described as ``a law that legislatively 
determines guilt and inflicts punishment upon an identifiable 
individual without provision of the protections of a judicial trial.'' 
See Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 468 (1977) (citing 
prior Supreme Court precedent). Accordingly, the Bill of Attainder 
Clause does not apply ``to regulations promulgated by an executive 
agency.'' Paradissiotis v. Rubin, 171 F.3d 983, 988-89 (5th Cir. 1999) 
(citing Walmer v. U.S. Dep't of Defense, 52 F.3d 851, 855 (10th Cir. 
1995) (``The bulk of authority suggests that the constitutional 
prohibition against bills of attainder applies to legislative acts, not 
to regulatory actions of administrative agencies.'')); see also Korte 
v. Office of Personnel Mgmt., 797 F.2d 967, 972 (Fed. Cir. 1986); 
Marshall v. Sawyer, 365 F.2d 105, 111 (9th Cir. 1966).
    Finally, DHS respectfully disagrees with commenters' statements 
that this rule violates aliens' due process rights in seeking 
employment authorization. As noted, there is no statutory or 
constitutional right to employment authorization for asylum applicants. 
Although aliens present in the United States are protected by the due 
process clause, federal immigration laws and their implementing 
regulations generally enjoy a highly deferential standard of review. 
Nonetheless, nothing in this rule prevents an alien from requesting 
employment authorization or obtaining employment authorization if they 
meet the requirements specified in the INA and this rule, and DHS 
believes this rule provides adequate notice of the eligibility criteria 
for employment authorization.

G. Comments on Specific Rule Provisions

1. 365-Day Waiting Period
a. INA 208(d)(2) and 180-Day Period
    Comment: A few commenters supported extending the (c)(8) EAD wait 
period to 365 days. One commenter believed this change along with other 
measures would discourage people from entering the United States 
illegally and hurting American jobs. One commenter supported the change 
citing the incentives for the filing of asylum applications by 
unqualified aliens due to the extended time periods for asylum 
adjudications versus the relatively short period for obtaining 
employment authorization. The commenter stated that the increased 
processing times that resulted from more unqualified applications 
unfairly increased the burden on bona fide asylum seekers. The 
commenter also agreed with DHS that extending the waiting period to 
better approximate the actual average adjudication completion periods, 
combined with the LIFO policy, was the most effective remedial 
approach.
    Many commenters, however, including several advocacy groups from 
the State of Maine, government officials from the State of New York, 
and representatives from several cities around the United States, 
opposed DHS extending the waiting period for asylum seekers to obtain 
an EAD from 180 days to 365 days. One commenter representing the State 
of New York argued that the rule ``interferes'' with the State's 
ability to enforce its labor and civil rights laws. Another commenter 
argued that the rule would ``impede or delay'' the State's ability to 
provide services under the Workforce Innovation and Opportunity Act 
(WIOA), Public Law 113-128, 128 Stat. 1425 (2014).
    Several commenters argued that the proposal to extend the waiting 
period was contrary to 5 U.S.C. 706(1). Another commenter argued that 
DHS was effectively amending the statute, section 208(d)(2) of the INA, 
8 U.S.C. 1158(d)(2), by treating the 180-day provision as the 
``floor.'' Several commenters also argued that DHS was disregarding the 
context and history behind Congress's enactment of the provision and 
should not extend the employment authorization waiting period because 
Congress ``adopted'' an approach that was based on the ``careful 
balance that the INA had struck between `discourag[ing] applicants from 
filing meritless claims solely as a mean to obtain employment 
authorization' and `providing legitimate refugees with lawful 
employment authorization.'' \114\
---------------------------------------------------------------------------

    \114\ See fn. 88.
---------------------------------------------------------------------------

    A few commenters opposed extending the period to 365 days and 
suggested the DHS adopt a different timeframe. Several commenters 
suggested the waiting period should be eliminated altogether or 
significantly shortened, such as for a period of 30-60 days or not more 
than 90 days. One commenter suggested that the 150-day period was a 
sufficient deterrent for fraudulent asylum applications. Another 
commenter opposed lengthening of the waiting period but indicated that 
if DHS had to extend, it should not exceed more than 240 days, and that 
DHS should consider the impact on legitimate asylum seekers. One 
commenter suggested that DHS make the waiting period 180 days, plus one 
day for each day after the alien's lawful entry into the United States, 
and that DHS bar asylum seekers who entered illegally from qualifying 
for employment authorization. Another commenter argued that the 365-day 
waiting period was simply a delay tactic and that DHS could simply 
count 180 calendar days from the receipt of the asylum application. One 
commenter stated that DHS's issues with calculating days and the Asylum 
EAD Clock could be eliminated by simply allowing concurrent filing.
    Several commenters argued that extending the period to 365 days was 
punitive, immoral, cruel and not consistent with American values. One 
commenter argued that extending the waiting period was inhumane and 
would make it harder for aliens to get asylum protection in the United 
States. Another commenter believed that,

[[Page 38565]]

though DHS's intent is to reduce frivolous, fraudulent, and non-
meritorious claims, it will actually discourage and reduce legitimate 
claims for asylum. One commenter noted that there are aliens in the 
backlog who have been waiting for years for a decision on their cases 
and with the reintroduction of LIFO and current backlogs, aliens 
basically will have to wait an indefinite amount of time to work. 
Another commenter argued that asylum seekers cannot be deprived of 
employment authorization because of government delays. Several 
commenters argued that extended waiting period would incentivize 
immigrants to work illegally. Several state government agencies said 
that during the lengthened waiting period, asylum applicants are more 
likely to ``work off the books'' to earn income, which puts them at 
risk of abuse and wage theft.
    Response: DHS disagrees that the proposal to extend the time frame 
for eligibility for employment authorization from 180 to 365 days is 
contrary to 5 U.S.C. 706(1). Section 706 of the APA describes the scope 
of judicial review of agency rulemaking under the APA and does not 
relate to the Secretary's authority over asylum or asylum-related 
employment authorization. DHS also disagrees that it is ``amending'' 
the statute that authorizes employment authorization by unlawfully 
treating the 180-day period as a ``floor'' as opposed to a ``ceiling'' 
for the amount of time an asylum seeker must wait until he or she is 
eligible for employment authorization.
    Under section 208(d)(2) of the INA, 8 U.S.C. 1182(d)(2), Congress 
gave the Secretary authority to give asylum seekers employment 
authorization on a discretionary basis and created a minimum period an 
asylum application must be pending before the discretionary authority 
to grant employment authorization is permitted. As noted above, the 
Secretary is not obligated to provide employment authorization to 
asylum seekers during any period of review of the asylum application, 
and it is within the Secretary's authority to bar employment 
authorization to asylum seekers outright. In addition, contrary to the 
commenters assertions, the 180-day waiting period specified in INA 
section 208(d)(2), 8 U.S.C. 1158(d)(2), represents a minimum waiting 
period and does not in any way limit the Secretary's discretion to 
impose additional restrictions on applying for employment 
authorization, including extending the timeframe beyond 180 days.
    In response to comments suggesting that DHS should either eliminate 
or significantly shorten the time an asylum seeker must wait, DHS 
believes it would contravene the purpose of this rule to do so, and 
notes that it is constrained by the statute and cannot shorten the 
period of time to less than 180 days. DHS could only make such a change 
if authorized by Congress. DHS also notes that there was a period in 
the 1990s when asylum seekers were able to obtain employment 
authorization immediately, and as a result, numerous fraudulent asylum 
claims were filed simply to obtain an EAD.\115\ Since the 1990s, both 
Congress and the Executive Branch have witnessed the incentives for 
aliens to file false claims for asylum simply to be able to work in the 
United States and not because they qualify for asylum based on any of 
the grounds specified in section 101(a)(42) of the INA, 8 U.S.C. 
1101(a)(42). DHS recognizes that when Congress enacted INA section 
208(d), 8 U.S.C. 1158(d), Congress adopted the agency's 180-day minimum 
waiting period for employment authorization as the statutory standard. 
Congress also made clear that asylum applicants are not entitled to 
employment authorization. Nothing in the statute prevents DHS from 
extending the waiting period beyond 180 days.
---------------------------------------------------------------------------

    \115\ See discussion supra in section II, part A regarding 
efforts to reform the asylum system.
---------------------------------------------------------------------------

b. Impact on Asylum Seekers and Their Ability To Be Self-Sufficient
    Comment: Many commenters opposed the change arguing that it is 
overly burdensome, would inhibit asylum seekers' ability to become 
economically self-sufficient, and ability to become productive members 
of society. Similarly, many commenters argued that the extended waiting 
period would cause significant economic hardship for asylum applicants 
who are unable to work and financially support themselves. One 
commenter argued that extending the waiting period could impact a 
parent's ability to support his or her child and would reduce critical 
financial resources for children by reducing child support collections. 
Several commenters said denying asylum applicants the opportunity to 
work and become self-sufficient will require them to depend on 
government welfare and community services. A few commenters argued that 
DHS did not adequately address how applicants are expected to be able 
to provide for themselves as they are not eligible for federal welfare 
benefits. Similarly, a few commenters wrote that the extended waiting 
period is inconsistent with U.S. policy to reduce the number of public 
charges. Several commenters said that without employment and financial 
stability, applicants will have difficulty obtaining access to 
services, such as healthcare, banking, education, and would not be able 
to obtain driver's licenses or hire legal counsel. A commenter also 
stated that work permits are the only form of photo identification for 
many asylum seekers and that without photo identification, they will 
have difficulty accessing community support programs like shelters, 
food banks, and medical clinics. Other commenters argued that the 
extended waiting period would cause significant harm to asylum 
applicants' physical and mental health, including causing anxiety and 
depression.
    One commenter stated that if applicants are granted asylum, it will 
be more challenging to find employment because they would need to 
explain a longer period of unemployment than they would under the 180-
day rule. Multiple commenters argued that the proposed rule would 
increase the risk of labor trafficking, coercive employment practices, 
and violations of state labor laws because asylum seekers would not be 
legally authorized to work. Several commenters said asylum applicants 
are more likely to become or remain homeless while waiting for their 
EAD because they cannot afford stable housing. Another commenter said 
the consequences of housing instability are especially acute for 
children, including harm to their physical and mental health, 
behavioral problems, and educational achievement. Several commenters 
said that women, HIV-positive, and lesbian, gay, bisexual, transgender, 
queer (LGBTQ) asylum seekers are especially vulnerable to homelessness, 
abusive living situations, exploitative labor practices, and hunger. 
One commenter stated that employment opportunities and economic 
resources are necessary for survivors of domestic violence, sexual 
assault, and human trafficking. The commenter said the extended wait 
times undermine federal and state policies to support victims and may 
trap victims in exploitative situations.
    Response: DHS recognizes that this rule may have a substantial 
impact on asylum applicants, but does not agree that a 365-day waiting 
period for employment authorization is overly burdensome, cruel, or 
precludes aliens from becoming self-sufficient. For at least 24 years, 
the statutory and regulatory scheme set the expectation that asylum 
applicants must wait a

[[Page 38566]]

minimum of 6 months, often much longer due to applicant-caused delays, 
before asylum applicants may apply for employment authorization. 
Therefore, it is not reasonable for asylum applicants to come to the 
United States with the expectation that they will be employment 
authorized immediately upon their arrival.
    While DHS supports the ability of aliens who have established 
eligibility for an immigration benefit in the United States, including 
asylees and refugees, to participate in and contribute to the U.S 
economy, DHS believes that employment authorization must be carefully 
regulated, not only to protect U.S. workers, but also to maintain the 
integrity of the U.S. immigration system. DHS has identified (c)(8) 
employment authorization, with its low eligibility threshold and nearly 
limitless renewals, coupled with the lengthy adjudication and judicial 
processes, as a driver for economic migrants who are ineligible for 
lawful status in the United States to file frivolous, fraudulent, and 
otherwise non-meritorious asylum applications. Asylum seekers are not 
immediately eligible to work as soon as they arrive in the United 
States. They are required to wait for at least 6 months, often longer, 
before they can receive work authorization. This waiting period is 
temporary and not a bar to employment authorization. DHS acknowledges 
that the extended period for which aliens will not be employment 
authorized may impact their access to other services, but this is a 
temporary period. In the interim, access to some services can be 
mitigated by organizations that provide these services without charge. 
There is no cost, for example, to attend public school. All children 
living in the United States have the right to a free public 
education.\116\ Several states have implemented community health 
outreach programs specifically to provide access to preventive care 
services for aliens, and federally funded health care centers, which 
are required to treat anyone, charge on a sliding scale and do not ask 
for citizenship documentation.\117\ DOJ-EOIR and USCIS maintain lists 
of legal providers who provide services at low or no cost.\118\
---------------------------------------------------------------------------

    \116\ https://www2.ed.gov/policy/rights/guid/unaccompanied-children.html (last accessed 2/19/2020).
    \117\ https://www.ncsl.org/research/immigration/immigrant-eligibility-for-health-care-programs-in-the-united-states.aspx (last 
accessed 02/19/2020).
    \118\ https://www.justice.gov/eoir/list-pro-bono-legal-service-providers (last accessed 3/24/2020); https://www.uscis.gov/avoid-scams/find-legal-services (last accessed 3/24/2020).
---------------------------------------------------------------------------

    Regarding explaining a longer period of employment authorization to 
an employer, DHS believes that compliance with the law constitutes a 
reasonable explanation for any potential employer who may ask about an 
alien's period of unemployment. Regarding reliance on public benefits, 
while state programs may differ, in general, asylum seekers are not 
eligible for federally funded benefits until they receive asylum. 
Individuals cannot be compelled to rely on public benefits for which 
they are not eligible. Nothing in this rule modifies that eligibility. 
Further, as a point of clarity, asylum seekers are not subject to the 
public charge inadmissibility ground under section 212(a)(4) of the 
INA, 8 U.S.C. 1182(a)(4), in the adjudication of their asylum 
applications.\119\ Nor is the public charge inadmissibility ground 
applicable to asylees seeking adjustment of status to lawful permanent 
residence in the United States.
---------------------------------------------------------------------------

    \119\ https://www.uscis.gov/news/fact-sheets/public-charge-fact-sheet (last accessed 02/19/2020).
---------------------------------------------------------------------------

    DHS also disagrees that this rule would ``force'' asylum seekers to 
work illegally to survive. Currently, asylum seekers have to wait a 
minimum of 180 days, often longer, before their employment 
authorization request is adjudicated. There is no mechanism for an 
asylum seeker to gain immediate employment authorization upon arrival 
to the United States. It is precisely because of the loopholes in the 
current asylum process that many economic migrants have been 
incentivized to migrate illegally to the United States. Transnational 
criminal organizations and human smugglers have long been aware of 
DHS's limited resources, insufficient detention capacity, and prior 
policies related to ``catch and release,'' as well as asylum 
adjudication backlogs and prolonged immigration court proceedings. 
These criminal organizations and smugglers have marketed these 
loopholes to economic migrants as an avenue to enter the United States, 
be automatically released, and be allowed to remain and work for 
extended periods of time.\120\
---------------------------------------------------------------------------

    \120\ See, e.g., United Nations, Office on Drugs and Crime, 
Global Study on Smuggling of Migrants, 2018, https://reliefweb.int/sites/reliefweb.int/files/resources/GLOSOM_2018_web_small.pdf. As 
courts also have recognized, smugglers encourage aliens to enter the 
United States based on changes in U.S. immigration policy. East Bay 
Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094, 1115 (N.D. Cal. 
2018) (noting a Washington Post article stating smugglers told 
potential asylum seekers that ``the Americans do not jail parents 
who bring children--and to hurry up before they might start doing so 
again.'').
---------------------------------------------------------------------------

    Finally, DHS believes that the reforms made by this rule and recent 
procedural changes, like LIFO, will significantly reduce the number of 
filings solely for economic reasons, which in turn will ensure that 
bona fide asylum seekers have their claims decided in an expeditious 
manner. Since USCIS returned to scheduling asylum interviews based on 
LIFO, newer filings are being prioritized for interview scheduling and, 
upon a positive grant of asylum, those bona fide applicants are 
immediately employment authorized. Therefore, many legitimate asylum 
applicants likely will not have to wait the full 365-day period before 
they can work lawfully in the United States.
    DHS strives to process all benefit requests as fairly and 
expeditiously as possible, while also conducting necessary vetting to 
identify national security and public safety concerns and detect fraud. 
From 2017 to 2020, over 80 percent of (c)(8) EADs were processed within 
60 days. Processing times for individual applications vary based on the 
particular facts of a case and broader processing times can vary due to 
outside factors. As for the commenters who are concerned about asylum 
seekers who are currently in the backlog and their ability to continue 
to work, DHS addresses the impact of this final rule on those aliens 
whose asylum claims are still pending as of the effective date of this 
final rule, in Section V, ] 7, Effective Date and Retroactive 
Application below.
c. Vulnerability to Human Trafficking, Poverty, and Homelessness
    Response: DHS strongly condemns human trafficking in all its forms, 
including labor trafficking and coercive labor practices. DHS expects 
all noncitizens, including asylum applicants, to refrain from working 
in the United States unless they are employment authorized. Working 
while not employment authorized increases the risk of labor trafficking 
and other coercive employment practices, abuse, and wage theft. In 
order to mitigate these risks and for their own safety, aliens should 
not accept employment in the United States unless they are employment 
authorized. Moreover, DHS expects asylum seekers to obey the law while 
in the United States, and will not assume otherwise in promulgating its 
employment authorization policies.
    Nothing in this rule changes access for asylum seekers to housing. 
It continues to be incumbent upon every asylum seeker to have a plan 
for where they intend to live during the pendency of their asylum claim 
and, in particular, while they are not employment authorized. Many 
asylum seekers stay with friends or relatives or avail

[[Page 38567]]

themselves of services offered by community organizations such as 
charities and places of worship. There are no federal housing programs 
for asylum seekers. The Department of Health and Human Services 
maintains resources about housing in each state in the United States. 
Asylum seekers who are concerned about homelessness during the pendency 
of their employment authorization waiting period should become familiar 
with the homelessness resources provided by the state where they intend 
to reside.\121\
---------------------------------------------------------------------------

    \121\ https://www.hud.gov/states (last accessed 2/6/2020).
---------------------------------------------------------------------------

d. Interference With State's Rights
    Response: DHS disagrees that this rule interferes with the rights 
of individual States to enforce WOIA or State labor and civil rights 
laws. While many States have laws that permit certain noncitizen 
residents of the State to access services or avail themselves of the 
protections under States' laws, those laws are subordinate to and 
preempted by the DHS's authority to administer and enforce the 
immigration laws as directed by Congress. As the Supreme Court recently 
noted in Arizona v. United States, 567 U.S. 367, 383, 132 S.Ct. 2492 
(2012), ``[t]he Government of the United States has broad, undoubted 
power over the subject of immigration and the status of aliens . . . 
This authority rests, in part, on the National Government's 
constitutional power to ``establish an uniform Rule of 
Naturalization,'' Art. I, Sec.  8, cl. 4, and its inherent power as 
sovereign to control and conduct relations with foreign nations . . .'' 
(citations omitted). While laws like WOIA allow aliens to access 
services or to participate in programs if they are authorized to 
work,\122\ it is solely within the province of the Secretary to grant 
employment authorization to aliens, based either on a specific 
statutory mandate requiring a class of aliens to be provided employment 
authorization or on the Secretary's discretion. Through this rule, DHS 
is providing discretionary employment authorization to asylum seekers 
if they meet certain eligibility requirements. DHS is not directing or 
compelling the States to enforce immigration laws. See Printz v. United 
States, 521 U.S. 898, 935, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997) 
(``The Federal Government may neither issue directives requiring the 
States to address particular problems, nor command the States' 
officers, or those of their political subdivisions, to administer or 
enforce a federal regulatory program.''). Nor is DHS precluding States' 
from authorizing aliens to access certain services under State law or 
pursuing any rights that may have been afforded by the States to 
noncitizens residing in their State.
---------------------------------------------------------------------------

    \122\ For example, WOIA provides that--
    ``(5) Prohibition on Discrimination against Certain 
Noncitizens.--Participation in programs and activities or receiving 
funds under this title shall be available to citizens and nationals 
of the United States, lawfully admitted permanent resident aliens, 
refugees, asylees, and parolees, and other immigrants authorized by 
the Attorney General to work in the United States.''
    See Public Law 113-128, at sec. 188.
---------------------------------------------------------------------------

2. One-Year Filing Deadline
    Comment: One commenter supported barring late-filers from obtaining 
employment authorization and believed that this rule closed an 
important loophole. Citing asylum statistics and the USCIS Asylum 
Division's comments during quarterly stakeholder meetings in 2017 and 
2018, the commenter stated that the asylum backlog contained tens of 
thousands of backlogged asylum applications that had been filed more 
than ten years after the alien's first entry into the United States. 
The commenter noted that long-time unlawfully present aliens often file 
frivolous affirmative asylum applications knowing they will be denied 
and then referred to the immigration courts, where the aliens can then 
seek cancellation of removal under section 240A of the INA, 8 U.S.C. 
1229b. The commenter believed that closing this loophole that allows 
for late-filing asylum applicants to receive employment authorization 
would create a ``significant disincentive for several abusive 
application practices.'' Another commenter said that there was no good 
reason for aliens with legitimate asylum claims to delay applying for 
asylum. The commenter believed that those who fail to apply prior to 
the one-year filing deadline are very likely doing so only as a delay 
tactic to keep from being removed.
    Many commenters opposed denying asylum seekers employment 
authorization if they failed to file within the one-year deadline 
specified under section 208(a)(2)(B) of the INA, 8 U.S.C. 
1158(a)(2)(B). The commenters noted that the one-year filing deadline 
has statutory exceptions, such as for changed circumstances, and also 
specifically exempts UACs. See INA section 208(a)(2)(D) and (E), 8 
U.S.C. 1158(a)(2)(D), (E). The commenters stated that the rule ignored 
these exceptions and failed to clarify how those exceptions applied in 
this rule. Several commenters expressed concern that the rule would 
render exceptions to the one-year deadline meaningless because IJs and 
asylum officers typically adjudicate the exceptions at the same time as 
the asylum adjudication. Other commenters believed that asylum officers 
and/or IJs were better suited to make decisions related to the asylum 
exceptions rather than USCIS officers who adjudicate EADs. One 
commenter felt that it was the responsibility of asylum officers or IJs 
to determine the outcome in a case and whether an exception was met, 
and that it was ``inappropriate'' for USCIS officers to prejudge the 
merits of a case where an asylum seeker filed after the one-year filing 
deadline by denying employment authorization.
    Several commenters noted that many applicants file past the one 
year deadline because they were previously in a lawful nonimmigrant 
status. One commenter stated that being in a lawful nonimmigrant status 
was not listed as one of the exceptions to the EAD bar and, as a 
result, the rule puts a whole class of aliens at risk--not because they 
do not have a legitimate fear of persecution or harm, but solely 
because they chose to immigrate to the United States through a legal 
channel other than asylum. Another commenter stated that DHS should 
specifically exempt those who maintained a lawful status prior to 
filing for asylum from the bar and allow them to obtain an EAD without 
waiting for an asylum officer or IJ to approve their asylum 
application. Several commenters said circumstances that can lead to a 
failure to file by the one-year filing deadline are often legitimate 
and out of the control of the applicants. One commenter believed that 
the rule would punish legitimate asylum seekers, many of whom in their 
view had good reason to apply late, such as based on the advice of 
counsel or because they were in a lawful immigration status. The 
commenter noted that many applicants have to wait years for their cases 
to be heard in the immigration courts and many of them are ultimately 
found to have met one of the exceptions to the one-year filing 
deadline. The commenter also argued that it had been a longstanding 
policy of the former INS and now DHS not to force aliens who are in a 
lawful status in the United States to apply for asylum early because it 
would be premature, citing the regulations at 8 CFR 208.4(a)(5)(iv) and 
the rationale in the preamble of a former INS final rule.\123\
---------------------------------------------------------------------------

    \123\ In its final rule, Asylum Procedures, 65 FR 76121, 76123-
24 (Dec. 6, 2000), the former INS, in response to comments regarding 
exceptions for those maintaining a lawful status, stated--
    ``Several commenters recommended that the list of extraordinary 
circumstances be expanded to include maintaining valid immigrant or 
nonimmigrant status, in addition to maintaining Temporary Protected 
Status. The Department has accepted the recommendation because there 
are sound policy reasons to permit persons who were in a valid 
immigrant or nonimmigrant status, or were given parole, to apply for 
asylum within a reasonable time after termination of parole or 
immigration status. The Department does not wish to force a 
premature application for asylum in cases in which an individual 
believes circumstances in his country may improve, thus permitting 
him to return to his country. For example, an individual admitted as 
a student who expects that the political situation in her country 
may soon change for the better as a result of recent elections may 
wish to refrain from applying for asylum until absolutely necessary. 
The Department would expect a person in that situation to apply for 
asylum, should conditions not improve, within a very short period of 
time after the expiration of her status. Failure to apply within a 
reasonable time after expiration of the status would foreclose the 
person from meeting the statutory filing requirements. Generally, 
the Department expects an asylum-seeker to apply as soon as possible 
after expiration of his or her valid status, and failure to do so 
will result in rejection of the asylum application. Clearly, waiting 
6 months or longer after expiration or termination of status would 
not be considered reasonable. Shorter periods of time would be 
considered on a case-by-case basis, with the decision-maker taking 
into account the totality of the circumstances.''

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

[[Page 38568]]

    One commenter noted that the one-year filing deadline is not an 
absolute bar, like other provisions that require a mandatory denial, 
and that it can be overcome by an asylum seeker submitting evidence to 
establish that they either timely filed or meet one of the exceptions 
to late filing. The commenter argued that the rule creates a 
presumption against allowing an asylum seeker to apply for an EAD until 
the asylum officer or IJ determines that the alien meets an exception 
and that this essentially means the bar to employment authorization 
remains in place until the asylum claim is decided on its merits. The 
commenter stated that the rule does not have any provisions addressing 
how EAD adjudicators will make a fact-based analysis as to whether an 
exception has been met for purposes of obtaining an EAD. Similarly, 
some commenters were concerned that the rule lacked procedures to allow 
for an early ruling on whether an asylum seeker has met one of the 
exceptions prior to a final determination on the merits. The commenters 
argued that, as a result, many asylum applicants who had meritorious 
claims would have no way to support themselves until there was a final 
hearing on the merits of their case.
    One commenter argued that the one-year filing deadline would not 
address fraudulent filings in order to trigger removal proceedings. The 
commenter argued that many asylum applicants have been in the United 
States unlawfully for less than 10 years, so they wouldn't be seeking 
relief through cancellation. One commenter stated it was wrong to 
penalize aliens with legitimate asylum claims for the ``transgressions 
of others.'' Another commenter argued that barring late-filers from 
obtaining employment authorization was not necessary because USCIS 
already had robust fraud prevention and protection procedures in place 
to determine when there are frivolous filings.
    Finally, many commenters said that the application of the one-year 
filing deadline to EAD adjudications was punitive and would harm 
vulnerable asylum seekers. One commenter argued that this proposal 
would punish asylum seekers with valid asylum claims who will 
ultimately be found to meet an exception to the one-year filing 
deadline. Another commenter argued that this would cause asylum seekers 
with clear exceptions to the one-year filing deadline to suffer 
``increased hardship and poverty unnecessarily.'' One commenter stated 
that it was ``sympathetic'' to one of DHS's justifications for barring 
late-filers from qualifying for employment authorization (in other 
words, deterring aliens from filing frivolous asylum claims solely to 
trigger removal proceedings to allow them to apply for cancellation of 
removal under section 240A of the INA, 8 U.S.C. 1229b), and understood 
that frivolous filings solely to obtain cancellation have contributed 
to the asylum case backlog. However, the commenter did not believe that 
DHS's proposed solution to the problem was a reasonable solution, 
especially since there were asylum seekers who had legitimate claims 
and reasons for why they were delayed in filing. The commenter noted, 
for example, that women and members of the LGBTQ community may fail to 
file within the one-year filing deadline for many legitimate reasons, 
such as suffering from Post-Traumatic Stress Disorder (PTSD) caused by 
their past persecution, fear of being stigmatized even within their own 
community, or lack of knowledge surrounding the asylum process. Several 
commenters said that people who experienced violence or trauma are 
often reluctant to reveal personal details, are unable to express their 
fear of return, or gain access to information about the asylum 
process--all reasons for why they may file beyond the one-year filing 
deadline.
    Response: DHS acknowledges that there are statutory and regulatory 
exceptions to the one-year filing deadline under section 208(a)(2)(B), 
(D) and (E) of the INA, 8 U.S.C. 1158(a)(2)(B), (D) and (E), and under 
8 CFR 208.4(a). These exceptions, however, apply to eligibility to 
apply for asylum and not eligibility for a (c)(8) EAD. DHS is not 
amending any statutory or regulatory exceptions, and USCIS and DOJ-EOIR 
will continue to render decisions on asylum applications that are late 
filed in accordance with current law and procedures. During the asylum 
process, asylum applicants will still have the opportunity to establish 
any changed circumstances that may have materially affected the alien's 
eligibility for asylum, or extraordinary circumstances that may have 
impacted the alien's ability to file during the 1-year period.\124\ 
Asylum officers and IJs will still be adjudicating the merits of an 
asylum case and determining whether exceptions to the one-year filing 
deadline apply. USCIS Immigration Services Officers (ISOs) will still 
adjudicate requests for (c)(8) EADs, which are separate and apart from 
asylum adjudications.
---------------------------------------------------------------------------

    \124\ INA sec. 208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D). The alien 
bears the burden to establish that he or she filed an asylum 
application within one year of entry or attempted entry to the 
United States, and the alien is ineligible for asylum unless he or 
she meets that burden. INA sec. 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B) 
(``Subject to subparagraph (D), paragraph (1) shall not apply to an 
alien unless the alien demonstrates by clear and convincing evidence 
that the application has been filed within 1 year after the date of 
the alien's arrival in the United States.''). If an alien fails to 
file the asylum application within one year, the alien bears the 
burden to establish that he or she qualifies for an exception to the 
one-year-filing deadline. INA sec. 208(a)(2)(D), 8 U.S.C. 
1158(a)(2)(D) (``An application for asylum of an alien may be 
considered, notwithstanding subparagraphs (B) and (C), if the alien 
demonstrates to the satisfaction of the Attorney General either the 
existence of changed circumstances which materially affect the 
applicant's eligibility for asylum or extraordinary circumstances 
relating to the delay in filing an application within the period 
specified in subparagraph (B).'').
---------------------------------------------------------------------------

    Analyzing exceptions to the one-year filing deadline often requires 
factual determinations related to allegations made in the underlying 
asylum claim, elicited testimony during the asylum interview, legal 
analyses, and knowledge of country conditions. For this reason and as 
proposed, where the alien failed to file the asylum application within 
one year, he or she is ineligible to receive a (c)(8) EAD unless and 
until an asylum officer or IJ determines that an exception applies and 
that the alien filed within a reasonable period of time given the 
circumstances.
    The fact that an applicant was a UAC at the time of filing does not 
create an exception to the one-year filing deadline. Rather, where the 
applicant was a UAC at the time of filing, the one-year filing deadline 
does not apply in the first place. When apparent UACs in removal 
proceedings appear to be filing asylum applications with USCIS, they 
are scheduled for an asylum interview and then, following the 
interview,

[[Page 38569]]

USCIS makes a determination as to whether the application was filed by 
a UAC. If the alien was a UAC, USCIS will have initial jurisdiction 
over the application. Prior to confirming through the interview that an 
application was in fact filed by a UAC for jurisdictional purposes, 
however, USCIS examines the information available at the time it 
received the asylum application, and where appropriate, treats it as an 
apparent UAC filing. Accordingly, although the Asylum Division will 
make the jurisdictional determination at the interview stage, it is 
within the purview of an ISO at the time of an EAD adjudication to 
determine whether the asylum application was accepted by an apparent 
UAC on the date it was filed, and therefore if the applicant qualifies 
for employment authorization during the pendency of their asylum 
application. Notably, in these cases a grant of a (c)(8) EAD has no 
bearing on the asylum adjudication. If, during the course of 
adjudicating the asylum application, an asylum officer or an IJ later 
determines the alien was not a UAC at the time of filing the asylum 
application, a previous (c)(8) EAD issuance would not impact the UAC 
determination.
    DHS disagrees with commenters that it failed to provide an 
exception for UACs. The rule states at 208.7(a)(1)(iii)(F) that the 
one-year filing requirement will not apply to any ``applicant [who] was 
an unaccompanied alien child on the date the asylum application was 
first filed.'' Congress did not place any restrictions on how the 
Secretary should exercise his discretion to grant EADs to asylum 
seekers except that employment authorization cannot be granted earlier 
than 180 days after the alien filed for asylum. Employment 
authorization is mandatory for those granted asylum (see INA section 
208(c)(1)(B), 8 U.S.C. 1158(c)(1)(B)), and discretionary for asylum 
seekers (see INA section 208(d)(2), 8 U.S.C. 1158(d)(2)). The Secretary 
has discretion to set any conditions or restrictions on employment 
authorization for asylum seekers, including restricting eligibility for 
those who fail to file their asylum applications within the time 
specified by Congress. The Secretary also may amend its regulations or 
rescind employment authorization for asylum seekers altogether.
    As part of the Secretary's reforms to the asylum process, DHS is 
emphasizing the importance of the statutory one-year filing deadline 
for asylum applications. Both DHS and DOJ-EOIR adjudicate asylum 
applications filed by aliens who reside in the United States for years 
before applying for asylum. Many aliens filing for asylum now are 
aliens who: (1) Were inspected and admitted or paroled, but failed to 
depart the United States at the end of their authorized period of stay 
(visa overstays), or (2) entered without inspection and admission or 
parole and remained in the United States, not because of a fear of 
persecution in their home country, but for economic reasons. Many 
aliens, overstays and illegal entrants alike, actively avoid detection 
for as long as possible and, once apprehended and facing removal from 
the United States, submit meritless asylum applications to delay or 
avoid removal. Due to the asylum application backlog, an asylum 
applicant could delay removal for several years while the applicant 
continues to enjoy government-sanctioned employment authorization 
during the adjudication process. As one commenter correctly noted, the 
asylum backlog has significantly increased in part because of aliens 
who overstayed their authorized period of stay in the United States, 
and subsequently decide to late-file an asylum application, either to 
continue employment authorization that expired at the end of their 
lawful nonimmigrant period or so that they can be placed into removal 
proceedings to apply for cancellation of removal.
    DHS recognizes that the one-year filing deadline exception is 
determined at the time of the asylum adjudication, and that this 
provision may preclude from EAD eligibility many asylum applicants who 
fail to file their I-589 within one year as required by statute. This 
provision is necessary nonetheless. Abuse of the asylum system is 
rampant, and the current system is stretched to its breaking point. 
Bona fide applicants are forced to wait in limbo for years while DHS 
and the courts wade through hundreds of thousands of asylum 
applications, the majority of which are being referred or denied and 
for which DHS or DOJ-EOIR are only approving a small fraction. These 
symptoms, left unchecked, would stand to incentivize hundreds of 
thousands more to take advantage of the system each year.
    DHS believes that one year is ample time for a bona fide asylum 
applicant to submit his or her application. This rule is necessary to 
disincentivize abusive behavior, and failing to take this significant 
action will invite more of the same behavior that has brought the 
asylum system to its current crisis.
    If an asylum applicant who files past the one-year deadline 
qualifies for an exception to the one-year-filing-deadline as defined 
in at INA section 208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D), and is granted 
asylum, the asylum applicant is immediately employment authorized 
incident to status. If an asylum officer or an IJ determines the 
applicant meets an exception and the asylum application remains 
pending, this provision will not apply. This rule does not establish a 
mechanism for determining the exception under INA section 208(a)(2)(D), 
8 U.S.C. 1158(a)(2)(D). DHS could not bind DOJ-EOIR to such a 
mechanism, and it would add further delay to an already backlogged 
asylum system.
    DHS carefully considered the suggestion that it exempt aliens from 
the one-year filing deadline provision where they allege they failed to 
timely file because they were in lawful status. DHS has determined it 
will not create such an exemption because it would contravene the 
purpose of this rule. Exempting such a class would incentivize 
nonimmigrants to delay filing their asylum applications until the end 
of their lawful stay in order to delay departure and obtain employment 
authorization. DHS has a strong interest in deterring aliens from 
residing in the United States unlawfully, including visa overstays. 
Aliens with bona fide asylum claims should file their asylum 
applications at their earliest opportunity and not delay. In doing so, 
the alien will have his or her claim adjudicated more quickly, and will 
consequently avoid being subject to this provision regarding 
discretionary employment eligibility on the basis of a pending asylum 
application.
    One commenter noted a 2000 rulemaking in which the legacy agency 
created an exception for nonimmigrants to the one-year filing deadline 
for asylum applications. In that rulemaking, the former INS indicated, 
``[t]he Department does not wish to force a premature application for 
asylum in cases in which an individual believes circumstances in his 
country may improve, thus permitting him to return to his country.'' 
DHS is not bound by that prior statement and takes a different position 
today. Namely, it believes that the agency should not encourage a bona 
fide asylum applicant to delay filing for the reasons stated above. 
Carving out an exception from this provision would encourage such a 
delay. Further, the two rulemakings differ in subject matter--the 2000 
rulemaking addressing asylum and this rulemaking addressing EAD 
eligibility. A favorable asylum adjudication provides protection from 
persecution and leads to lawful permanent residence and a pathway to 
citizenship. The (c)(8) EAD is a temporary, ancillary benefit providing 
for a short period of authorized employment because the agency has yet

[[Page 38570]]

to adjudicate the merits of the asylum application. Additionally, the 
two rulemakings are separated by twenty years. During that time the 
asylum backlog has grown significantly. Therefore, this rulemaking is 
addressing a different subject matter and a different problem 
altogether.
    DHS notes further that it declines to exempt nonimmigrants from 
this provision because a nonimmigrant is either permitted to work while 
in the United States and therefore does not need a (c)(8) EAD, such as 
an alien in H-1B status, or, the nonimmigrant is forbidden from working 
while in the United States and therefore should be excluded from any 
EAD, such as a B-1 visitor or an F-1 student not participating in 
optional practical training. As noted above, if the alien does not 
delay filing the asylum application, he or she would not be subject to 
this provision in the first place and would not need an exception. 
Further, if the alien's asylum claim is granted, he or she would be 
immediately employment authorized incident to status.
    As for concerns about the procedures for EAD adjudications and how 
USCIS officers will be able to determine if an exception has been met, 
DHS does not believe it needs to articulate any new procedures in this 
rule for EAD adjudications. USCIS officers adjudicating employment 
authorization are well trained and will continue to follow the 
guidelines and rules governing eligibility for employment 
authorization. USCIS officers have access to a variety of DHS and DOJ-
EOIR systems which they can review to determine if and when a decision 
is made on any asylum application and if an asylum officer or IJ 
determines that the asylum seeker failed to meet one of the exceptions 
to the one-year filing deadline. DHS will not create a separate 
adjudicative process outside of the current asylum and EAD processes 
solely to determine if an asylum seeker met an exception to the one-
year deadline so that the alien can obtain employment authorization 
shortly after the 365-waiting period, rather than having to wait until 
an asylum officer or IJ determines that the alien meets one of the 
exceptions to late filing.
    With regard to potential harm to asylum seekers who have legitimate 
claims, DHS does not intend to cause hardship to bona fide asylum 
seekers. The goal of this rule is to remove the incentives for aliens 
who do not have valid claims to file frivolous applications to obtain 
employment authorization. DHS disagrees that this rule will not deter 
fraudulent affirmative asylum applications. DHS recognizes that many 
asylum seekers have been in the country less than 10 years, however, 
based on a DHS assessment,\125\ many asylum applications appear to be 
filed by aliens escaping generalized violence and poor economic 
conditions in their home countries. Since some of these asylum seekers 
are fleeing for reasons other than persecution which would qualify them 
for a grant of asylum or withholding of removal, DHS believes it is 
logical and prudent to impose more stringent requirements for 
employment eligibility based on a pending asylum application.
---------------------------------------------------------------------------

    \125\ See supra fn. 71.
---------------------------------------------------------------------------

    Finally, with regard to those asylum seekers who may file after one 
year of entering in the United States because they are women who 
suffered domestic violence or have PTSD, are aliens who are LGBTQ and 
may be stigmatized in their communities, or because they are 
individuals who are unfamiliar with the asylum process, DHS recognizes 
that there are legitimate reasons that an alien may be delayed from 
seeking asylum within the one-year filing deadline, which is why the 
current regulations at 8 CFR 208.4(a)(4) and (5) allow for an alien to 
establish either that there are changed circumstances that materially 
affect the alien's eligibility for asylum or that there are 
extraordinary circumstances related to the delay in filing. Under 8 CFR 
208.4(a)(4) and (5), the alien's failure to file an asylum application 
within one year may be excused if they can establish changed or 
extraordinary circumstances and if they file the asylum application 
within a reasonable period after the changed or extraordinary 
circumstances occur.
    The commenters did not provide, and DHS is not aware of data 
establishing how many aliens successfully overcome the one-year filing 
deadline based on extraordinary circumstances related to domestic 
violence, LGBTQ status, community stigmatization, or PTSD. DHS believes 
that the percentage of qualifying aliens affected by this rule will be 
relatively low when weighed against the increasing strain the asylum 
system would face were the government to take no responsive action. DHS 
believes exceptions to the one-year filing deadline should be 
exceptionally rare, and therefore the exceptions' limited application 
does not outweigh the government's interest in addressing the pervasive 
abuse of the asylum system by those flouting the one-year filing 
deadline in order to delay or prevent removal or to obtain cancellation 
of removal. Moreover, these issues relate directly to the alien's 
underlying asylum claim and are therefore better suited for 
determination by an asylum officer or IJ than a USCIS ISO. Finally, 
unfamiliarity with asylum procedure does not rise to the level of an 
extraordinary circumstance sufficient to excuse the failure to file 
within one year.\126\
---------------------------------------------------------------------------

    \126\ Ignorance of legal requirements does not excuse 
noncompliance. See e.g. Federal Crop Ins. Corp. v. Merrill, 332 U.S. 
380, 384-385 (1947); Antonio-Martinez v. INS, 317 F.3d 1089, 1093 
(9th Cir. 2003)(applying the general rule that ``ignorance of the 
law is no excuse'' to the asylum context); Kay v. Ashcroft, 387 F.3d 
664, 671 (7th Cir. 2004)(other circumstances, ignorance of the law 
did not establish exceptional circumstances). But see Mendez Rojas 
v. Johnson, 2018 WL 1532715 (W.D. Wash. Mar. 29, 2018) (excusing the 
one-year filing deadline where DHS failed to provide adequate notice 
of the requirement) (case on appeal Mendez Rojas, et al. v. Kirstjen 
Nielsen, et al., 18-35443).
---------------------------------------------------------------------------

3. Criminal Bars
    DHS received numerous comments on the addition of criminal bars to 
eligibility for employment authorization. A few commenters supported 
the inclusion of the criminal bars to eligibility for employment 
authorization, especially for those who had committed or were convicted 
of felonies and misdemeanors. One commenter not only supported the 
criminal bars but also proposed that DHS consider the list of 
disqualifying crimes that bar eligibility under the Violence Against 
Women Act (VAWA), Public Law 103-322, 108 Stat. 1902, as criminal 
offenses that would be ``particularly serious crimes'' that bar 
eligibility for an EAD, and recommended that DHS wait for 6 months to 1 
year to assess the effects of the rule before further expanding the 
list of disqualifying criminal activity.
    Most commenters, however, opposed inclusion of the criminal bars to 
employment authorization. DHS has categorized the comments and 
incorporated responses to those comments below.
a. Statutory, Constitutional, and APA Concerns
    Comment: Several commenters argued that the addition of the 
criminal bars was contrary to Congress's intent, violated international 
law, and violated the Due Process and Equal Protection Clause of the 
U.S. Constitution. One commenter argued that the rule violates the due 
process rights of asylum seekers by failing to provide a mechanism for 
applicants to refute or explain their criminal history. Several 
commenters argued that the rule was arbitrary and capricious because 
the terms were poorly defined and failed to give applicants proper 
notice of disqualifying conduct. The commenters

[[Page 38571]]

also argued that the rule was arbitrary and capricious because it 
failed to provide a clear rationale for how adding the criminal bars 
supported the stated purpose for the rule (to deter frivolous, 
fraudulent, or nonmeritorious filings). Other commenters argued that 
DHS was violating the APA by creating a ``confusing framework'' and 
parallel, duplicative proceedings for employment authorization cases to 
decide the same issues that will be decided by asylum officers and IJs 
when they consider the merits of an asylum application.
    Several commenters argued that the proposed criminal bars were 
``void for vagueness'' because the types of disqualifying crimes, like 
public safety offenses and felonies, were ill-defined. The commenters 
argued that the rule failed to provide any guidance or specify which 
factors USCIS adjudicators would consider when assessing unresolved 
arrests, pending charges, or foreign offenses. One commenter argued 
that the rule would undermine asylum seekers' ability to counter the 
negative impact of an arrest or conviction with favorable lawful work 
history and demonstrated ability to support themselves and their 
families, as they would be able to do before an IJ. Several commenters 
also pointed out that there are numerous state criminal offenses that 
may or may not be disqualifying for immigration purposes and argued 
that creating categorical bars would potentially result in disparate 
treatment.
    One commenter asserted that a categorical bar to people with 
``public safety offenses'' departs from the criteria for analyzing such 
offenses as set forth by the BIA in Matter of N-A-M, 24 I&N Dec. 336 
(BIA 2007), which requires that adjudicators consider all reliable 
evidence on a case-by-case basis. Some commenters argued that the 
criminal EAD bars were vague and failed to provide asylum seekers with 
a criminal history fair notice of their rights. The commenters noted 
that the rule failed to specify when and how asylum seekers could 
challenge a decision based on disqualifying criminal activity, or to 
provide a mechanism for aliens to resolve inaccuracies in their 
criminal records. Multiple commenters argued that allowing unresolved 
arrests and pending charges to be considered in EAD adjudications 
violates the ``presumption of innocence'' and basically would allow 
USCIS adjudicators to determine guilt even before the court or a jury 
had rendered a decision on the charges.
    Many commenters argued that the criminal bars were overbroad and 
went far beyond the existing criminal bars to asylum. The commenters 
believed that the criminal bars to employment authorization should be 
consistent with the criminal bars to asylum \127\ and that asylum 
seekers should not be barred from obtaining employment authorization if 
the arrests or convictions would not ultimately bar them from asylum. 
Some commenters argued that the rule would essentially prevent all 
asylum seekers who have had ``virtually any contact'' with the criminal 
justice system from ever qualifying for employment authorization. One 
commenter warned that denying an EAD based on a criminal charge that 
does not create a bar to asylum itself could prejudice an applicant 
during the asylum process and negatively impact a final decision on the 
applicant's asylum claim. Several commenters also were concerned about 
the impact criminal assessments in EAD adjudications might have on 
applicants who had pending charges and were considering plea deals. One 
commenter said that the proposal is problematic because it does not 
make exceptions for convictions or guilty pleas that are influenced by 
mental illnesses, including trauma from past persecution. Another 
commenter believed that the provision would make plea deals 
unacceptable for applicants facing charges, and thus would increase the 
number of cases going to trial in already overstretched court systems. 
Similarly, a commenter stated that the proposal would force asylum 
seekers to choose between a plea deal that would render them ineligible 
for employment authorization or going to trial where a conviction might 
ultimately cause them to lose eligibility for asylum.
---------------------------------------------------------------------------

    \127\ An alien is barred from asylum if the alien has been 
convicted of an aggravated felony under section 101(a)(43) of the 
INA, 8 U.S.C. 1101(a)(43), convicted of a particularly serious 
crimes, or has committed a serious nonpolitical crimes outside of 
the United States. See INA section 208(b)(2)(A)(ii) and (iii) of the 
INA, 8 U.S.C. 1158(b)(2)(A)(ii), (iii).
---------------------------------------------------------------------------

    Several commenters argued that criminal convictions, especially 
those for nonviolent acts, should not bar asylum applicants from 
receiving employment authorization. Some commenters argued that DHS 
should make exceptions for juveniles and aliens charged or convicted of 
minor offenses. Some commenters believed that the rule would discourage 
asylum seekers with potentially valid claims from applying or would bar 
them from employment authorization based on minor offenses that are not 
crimes under state law. A few commenters suggested that the rule could 
harm victims of domestic violence because their abusers could file 
false claims against them as retaliation for reporting abuse or to 
affect their employment authorization. One commenter cited several 
studies in arguing that the rule would harm asylum seekers with 
meritorious claims because many individuals who are accused of 
committing domestic violence are often survivors of family or societal 
violence, which may form the basis for a valid asylum claim. Another 
commenter stated that the proposal violated international law because 
asylum seekers may be seeking asylum because of unfounded criminal 
accusations in their home countries. Several commenters argued that 
failing to account for corruption in countries outside of the United 
States may harm applicants from countries that use criminal prosecution 
to suppress dissidence or for other political reasons.
    Response: DHS disagrees that the addition of criminal bars violates 
the U.S. Constitution and the due process rights of asylum seekers, and 
is arbitrary and capricious under the APA. Nothing in this rule 
disturbs the due process protections built into the criminal 
proceedings that precede a conviction. DHS also disagrees that there is 
no rationale for adding the criminal bars or that these bars do not 
support the stated purposes for the rule. DHS has a strong interest in 
ensuring public safety and preventing aliens with significant criminal 
histories from obtaining a discretionary benefit.
    This rule is not arbitrary and capricious. DHS is authorized to 
amend its regulations managing employment authorization based on a 
pending asylum application. Further, DHS has satisfied its obligations 
under the APA, given the public ample opportunity to comment on the 
proposals within this rule, and has adopted some amendments to the 
final rule based on public comments received. DHS is promulgating this 
rule not only to deter illegal entry, but also to address the crisis at 
the southern border, reduce abuse of the asylum system, especially by 
those who have engaged in significant criminal conduct, and restore 
integrity to the asylum process overall. Barring aliens convicted of 
certain crimes from obtaining the discretionary benefit of employment 
authorization is consistent with these stated purposes. The rule also 
is not arbitrary and capricious because it gives notice to aliens of 
the types of crimes DHS will consider when determining if an asylum 
seeker warrants employment authorization as a matter of discretion.
    DHS disagrees that this rule has any impact on the ability of 
aliens in criminal proceedings to assess whether they should accept 
plea deals. Any time

[[Page 38572]]

an alien is convicted of a crime in the United States, whether at a 
Federal or state level, the alien should be aware that such a 
conviction may have consequences for immigration purposes, and that 
such consequences are not limited solely to obtaining a discretionary 
benefit such as employment authorization. DHS also disagrees that the 
provisions of this rule create a ``confusing framework'' or parallel 
and duplicative scheme for determining eligibility for employment 
authorization based on criminal history, but notes that aligning 
criminal bars to a (c)(8) EAD with asylum bars under 8 CFR 208.13(c) 
addresses these concerns. DHS will continue adjudicating asylum 
applications separate and apart from employment authorization 
applications, and asylum decisions will still be made in accordance 
with our laws and policies under section 208 of the INA, 8 U.S.C. 1158, 
and 8 CFR 208.
    DHS appreciates and acknowledges many of the concerns raised by 
commenters about the types of crimes that would be considered 
categorical bars to employment authorization. DHS carefully considered 
the public comments on this issue and is making a few adjustments based 
on the input DHS received. DHS is modifying 8 CFR 208.7(a)(1)(iii) to 
provide that aliens who are subject to the criminal bars for asylum 
under section 208(c) of the INA and subject to mandatory denial of 
asylum based on certain criminal grounds under 8 CFR 208.13(c) will be 
ineligible for (c)(8) EADs.
    Finally, even though DHS has chosen to amend the provisions of the 
rule to align the categorical bars to discretionary EAD eligibility 
with the criminal bars to asylum under section 208(c) of the INA, 8 
U.S.C. 1158(c), and corresponding regulations, DHS does not view this 
alignment as creating a mandate or legally obligating DHS to adopt the 
interpretations or procedures used by asylum officers and IJ to 
determine when and if an alien's conduct bars his or her eligibility 
for asylum. If an asylum seeker is denied a discretionary EAD based on 
a categorical bar under this rule, that determination does not alter 
whether the alien will be barred from asylum based on a bar under 
section 208(c) of the INA, 8 U.S.C. 1158(c). Similarly, the grant or 
denial of a discretionary EAD does not affect the asylum officer's or 
IJ's determination on criminal bars to asylum.
    Nothing in this final rule precludes an alien with a criminal 
history from ultimately qualifying for asylum and becoming employment 
authorized pursuant to a grant of asylum. DHS is sensitive to the 
concerns about victims of domestic violence and to the concerns that 
some aliens may have pending criminal charges that will ultimately be 
resolved in their favor. The criminal bars in the separately proposed 8 
CFR 208.13(c)(6), which will also be bars to a (c)(8) EAD if finalized, 
provide exemptions for certain victims,\128\ and addresses the concerns 
about unresolved criminal charges.\129\ All of these concerns will be 
taken into consideration when a USCIS ISO determines whether to grant 
employment authorization as a matter of discretion.
---------------------------------------------------------------------------

    \128\ The asylum bars proposed at 8 CFR 208.13(c)(6) (under the 
separate aforementioned proposed rule) would exempt aliens who are 
generally described in section 237(a)(7)(A) of the INA, 8 U.S.C. 
1227(a)(7)(A), which provides a waiver of the domestic violence and 
stalking removability ground when it is determined that the alien 
(1) was acting in self-defense; (2) was found to have violated a 
protection order intended to protect the alien; or (3) committed, 
was arrested for, was convicted of, or pled guilty to committing a 
crime that did not result in serious bodily injury and where there 
was a connection between the crime and the alien's having been 
battered or subjected to extreme cruelty.
    \129\ Each of the proposed bars at 8 CFR 208.13(c)(6) would 
require a conviction except for paragraph (vii), which would bar 
asylum where ``[t]here are serious reasons for believing the alien 
has engaged . . . in acts of battery or extreme cruelty as defined 
in 8 CFR 204.2(c)(1)(vi) . . .'' Paragraph (vii) would not require a 
conviction, arrest or pending charges.
---------------------------------------------------------------------------

b. Criminal Convictions Prior to the Effective Date
    Comment: Some commenters expressed concern that the rule would 
apply to convictions that occurred prior to the final rule's effective 
date.
    Response: DHS addresses the impact of this final rule on asylum 
seekers who have criminal convictions prior to the effective date of 
this final rule, in ] 7, Effective Date and Retroactive Application 
below.
4. Illegal Entry and the Good Cause Exception
a. Illegal Entry
    Comment: Several commenters supported barring asylum seekers who 
entered illegally from obtaining employment authorization. One 
commenter believed that this was a necessary process to help the 
government weed out threats. Another commenter supported the rule and 
recommended that DHS deny EADs to any alien who appeared to have been 
``coached'' in how to make an asylum claim.
    Most commenters, however, opposed barring asylum seekers who 
entered illegally from obtaining employment authorization. Many 
commenters stated that creating a categorical bar to EAD eligibility 
for aliens who entered the United States illegally violated the 
Constitution, the INA, the APA, and international law. The commenters 
argued that section 208(a) of the INA, 8 U.S.C. 1158(a), specifically 
allows aliens to file for asylum regardless of the manner of their 
entry and as such DHS could not bar aliens from obtaining EADs because 
of the manner of their entry. One commenter stated that the illegal 
entry bar would essentially prohibit an entire class of eligible asylum 
seekers from obtaining EADs--UACs. The commenter noted that UACs 
usually enter without inspection and argued the rule would essentially 
punish all UACs, who are some of the most vulnerable and traumatized 
asylum seekers, by barring them from obtaining EADs because of their 
illegal entry, even though illegal entry is not a bar to asylum. 
Several commenters stated that the illegal entry bar would be harmful 
to asylum seekers because they are often fleeing mortal danger, 
traumatized, and do not have the ``luxury'' of planning to enter the 
United States at an official port of entry.
    Several commenters argued that barring EADs to asylum seekers who 
entered illegally contravened the United States' obligations to protect 
people fleeing persecution. The commenters also argued that DHS 
erroneously interpreted the Refugee Convention and that DHS was not 
meeting its obligations under the Refugee Conventions regarding the 
good cause exception. One commenter stated that Congress's inclusion of 
the parenthetical in section 208(a) of the INA (``whether or not at a 
designated port of arrival'') demonstrated Congress's intent to conform 
the U.S. asylum law with international laws and require the United 
States to comply with its obligations under such laws. Another 
commenter argued that DHS's position also conflicts with the expedited 
removal provisions under section 235 of the INA, 8 U.S.C. 1225, and 
improperly places the burden on applicants to express credible fear. 
One commenter claimed that in some instances CBP officers were not 
asking applicants if they had a credible fear or not properly recording 
that the applicants had expressed fear of persecution. Another 
commenter argued that CBP was required to ask asylum seekers four fear-
related questions, and believed that this rule would result in EAD 
denials in cases where aliens fail to affirmatively state that they are 
seeking asylum or to express a fear of persecution or torture. The 
commenter also believed that DHS's

[[Page 38573]]

interpretation of good cause was overly restrictive and cited the 
Refugee Convention and a U.N. General Assembly document as evidence 
that the United States had agreed not to penalize asylum seekers for 
illegal entry.
    Some commenters argued that placing limitations on EAD eligibility 
for asylum seekers based on the manner of entry into the United States 
was arbitrary and capricious and inconsistent with the court's decision 
in Diaz v. INS, 648 F. Supp. 638 (E.D. CA. 1986), where a court 
recognized ``that since political asylum may be granted to an alien 
irrespective of the manner of entry, it is inconsistent to provide that 
the manner of entry is relevant to a determination relative to work 
authorization.'' Id. at 654 (E.D. Cal. 1986).
    Response: DHS disagrees that the provisions of this rule barring 
aliens who enter illegally and fail to establish good cause for their 
illegal entry violates the U.S. Constitution, the INA, the APA, or 
international law. The commenters are conflating eligibility for asylum 
with eligibility for employment authorization, a discretionary, 
ancillary benefit, and are attempting to graft the requirements in INA 
208(a)(1), 8 U.S.C. 1158(a)(1), into INA 208(d)(2), 8 U.S.C. 
1158(d)(2), which Congress could have, but did not, do. Determining 
eligibility for asylum and eligibility for employment authorization are 
separate and distinct processes.
    DHS also disagrees with commenters who argue that it is not 
possible for aliens to present themselves lawfully at a U.S. port of 
entry. DHS rejects the assertion that UACs or any other class of alien 
should be exempt from lawful entry requirements absent good cause. 
Returning U.S. citizens, no matter their age or sophistication level, 
are required to present themselves at a U.S. port of entry for 
inspection by an immigration official and no class of citizen is 
exempt. Congress has not exempted any class of aliens from lawful entry 
requirements, and DHS will not exempt any class in this provision 
except where the alien can establish good cause, such as fleeing 
imminent harm.
    In many cases, aliens travel thousands of miles over several days, 
weeks, or months, and cross continents or oceans to enter the United 
States. It is unreasonable to assume that these same individuals cannot 
present themselves for inspection at a port of entry as required by 
law. If the alleged persecution or harm is attenuated by significant 
distance and time, it is reasonable to expect aliens to comply with 
U.S. laws requiring lawful entry. In the event an alien cannot enter 
the United States at a port of entry, the rule creates narrow 
exceptions for aliens who present themselves to DHS within 48 hours of 
unlawful entry, expresses intent to apply for asylum or fear of 
persecution, and demonstrates good cause for the manner of entry.
    As a sovereign nation, we must secure our borders. With the illegal 
entry provision in this rule, DHS seeks to regain control of our 
southern border while preserving employment authorization for those who 
are genuinely fleeing imminent harm. According to CBP, its officers 
encountered approximately 126,001 inadmissible aliens who presented 
themselves at land ports of entry in fiscal year 2019.\130\ In fiscal 
year 2019, CBP reported over 850,000 apprehensions of illegal entrants 
at the southern border.\131\ Clearly, a vast majority of aliens are 
electing to enter the United States illegally rather than lawfully. 
Many aliens entering the United States have travelled for thousands of 
miles from countries all across the globe and from every continent, 
sometimes flying to South America to then travel locally to try and 
enter the United States by land. It is well documented that there are 
smuggling corridors around the world that are controlled by 
transnational criminal organizations, human smuggling rings, and 
criminal gangs. Many people pay hundreds, even thousands of dollars to 
these entities and organizations solely to try and enter the United 
States, not because they are fleeing persecution, but because they want 
to establish a life in a country that offers better security, a 
functional government, and economic opportunities that may not be 
available in their own countries.\132\
---------------------------------------------------------------------------

    \130\ See CBP Southwest Border Migration Statistics FY 2019, 
available at https://www.cbp.gov/newsroom/stats/sw-border-migration/fy-2019.
    \131\ Id.
    \132\ See United Nations, Office on Drugs and Crime, Global 
Study on Smuggling of Migrants, 2018, https://reliefweb.int/sites/reliefweb.int/files/resources/GLOSOM_2018_web_small.pdf. See also 
Letter from the former Chairman of United States Senate Judiciary 
Committee to former DHS Secretary (Dec. 22, 2015): (``[I]n July of 
2015, a woman gave Immigration and Customs Enforcement (ICE), 
Enforcement and Removal Operations (ERO) information regarding her 
entrance to the United States with her `child.' According to the 
whistleblower, the woman allegedly paid a smuggling organization in 
Brazil $13,000 in fees to smuggle her to the United States. She flew 
from Rio de Janeiro, Brazil to Mexico City, Mexico where she was 
`paired' with a minor child to accompany across the border. The 
woman stated that the smuggling organization instructed her to claim 
the child as her own upon arrival to the United States. This woman 
and the child that she accompanied were subsequently released on an 
order of recognizance in the United States. One week later, the 
woman was granted voluntary departure by an Immigration Judge. The 
whereabouts of the child are unknown.'').
---------------------------------------------------------------------------

    DHS appreciates that there are aliens seeking to cross our borders 
who are legitimate asylum seekers who are fleeing persecution based on 
the five protected grounds and DHS agrees that those aliens should have 
their cases heard expeditiously and be granted asylum so that they can 
have the protections offered by the United States and build a new life. 
DHS also recognizes that there are cases where aliens are facing 
imminent harm or exigent circumstances that warrant an exception to the 
illegal entry bar. For this reason, DHS has provided that where an 
alien enters illegally because he or she needs immediate medical 
attention because of a life or death situation or because the alien is 
fleeing imminent harm, DHS will consider such cases under the good 
cause exception.
    DHS is not penalizing aliens because of their manner of entry. 
Instead, DHS, through this rule and other Administration policies and 
procedures, is ensuring that the asylum process is better regulated, 
more orderly, and designed to ensure that bona fide asylum seekers who 
follow the designated legal procedures can present their claims and 
have them heard as expeditiously as possible.
    Finally, while the amendment to the rule makes any alien who 
entered or attempted to enter the United States at a place and time 
other than lawfully through a U.S. port of entry ineligible to receive 
a (c)(8) EAD, the limited good cause exception does not affect how an 
alien gives an indication that he or she has a fear of persecution or 
torture, or an intent to apply for asylum. An alien's ``indication'' of 
fear of persecution or torture or intent to apply for asylum also does 
not require an affirmative expression or a volunteering of that fear or 
intention--such an expression can be in response to a question. DHS 
notes that the language in the regulations governing expedited removal 
and inspection of aliens at section 235(b) of the INA, 8 U.S.C. 
1225(b), also references an alien's indication of ``either an intention 
to apply for asylum . . . or a fear of persecution,'' thus prompting 
the DHS officer or agent to refer the alien for a credible fear 
interview with an asylum officer. DHS reads this ``indication'' of fear 
or persecution or an intent to apply for asylum as one that can be 
elicited affirmatively through CBP questioning or independently 
expressed by the alien. The language of this Final Rule

[[Page 38574]]

related to the good cause exception mirrors the statute and does not 
require that the alien affirmatively express a fear of persecution or 
torture and it also does not alter CBP's existing inspection and 
examination processes.
b. Good Cause Exception
    Comment: Several commenters stated that even though DHS provided a 
limited exception based on good cause, DHS's interpretation of good 
cause was too narrow and thus violated Article 31 of the Refugee 
Convention. The commenters argued that barring asylum seekers from 
eligibility for employment authorization because of their manner entry 
was a ``penalty'' within the meaning of Article 31 of the Refugee 
Convention, and impermissibly differentiated between those who 
presented at ports of entry and those who entered illegally. One 
commenter cited various scholarly articles discussing Article 31 and 
argued that DHS's definition of good cause was inconsistent, especially 
since UNHCR defined ``good cause'' to include ``fear of summary 
rejection at the border.'' Another commenter cited the ``travaux 
pr[eacute]paratoires''--the negotiations leading up to the 1951 
Convention--in arguing that simply fleeing persecution alone suffices 
for ``good cause'' for entering illegally. The commenter also cited the 
Vienna Convention on the Law of Treaties, arguing that ``travaux 
pr[eacute]paratoires'' should be used when construing the meaning of 
the treaty's language.
    Some commenters argued that the highly restrictive examples of what 
constitutes good cause made the illegal entry bar a ``penalty.'' One 
commenter argued good cause should be interpreted to include attempts 
to reach safety in the United States, especially when entering without 
inspection is a response to what the commenter viewed as U.S. 
violations of international and domestic law, through the practice of 
metering, the MPP, the third country transit ban, and the asylum 
cooperative agreements established with Guatemala, Honduras and El 
Salvador, as well as any additional countries in the future. One 
commenter said that USCIS adjudicators should be given guidance that 
the asylum seeker's good faith belief that someone in the family 
requires immediate medical attention or is facing imminent serious harm 
should be considered a reasonable justification. Another commenter 
requested that DHS expand the definition of good cause beyond medical 
emergencies to include victims of human trafficking, smugglers, and 
notarios.
    Several commenters argued that DHS's definition of good cause was 
impermissibly vague and ill-defined and thus violated due process and 
was void for vagueness. The commenters noted that while the rule 
specifically defined those grounds that would not constitute good 
cause, DHS failed to list those grounds that would constitute good 
cause. One commenter, citing a law review article, stated that having a 
well-founded fear of persecution is considered good cause and traveling 
through a country where there is not protection also constitutes good 
cause. The commenters argued that DHS was creating different standards 
for good cause that would depend on the circumstances or the alien's 
ability to establish good cause.
    Response: Congress did not place any restrictions on how the 
Secretary should exercise his discretion to grant EADs to asylum 
seekers except that employment authorization cannot be granted earlier 
than 180 days after the alien filed for asylum. Congress also did not 
incorporate or reference the exceptions or bars to asylum under 
sections 208(a) or (c) in section 208(d) of the INA or require the 
Secretary to adhere to limitations in those provisions when making a 
decision on whether to grant discretionary employment authorization to 
asylum seekers. Where language is included in one section of the 
statute but not another, it is presumed that Congress intentionally 
legislated the text in that manner. See Dep't of Homeland Sec. v. 
MacLean, 574 U.S. 383, 135 S. Ct. 913, 919 (2015) (``. . . Congress 
generally acts intentionally when it uses particular language in one 
section of a statute but omits it in another.'') (citing Russello v. 
United States, 464 U.S. 16, 23, 104 S. Ct. 296 (1983)).
    Congress clearly left it to the Secretary's discretion to interpret 
the statute and set the parameters on how the statute governing 
discretionary employment authorization for asylum seekers should be 
applied. Nothing precludes an agency from changing its policy position 
as long as there is a rational explanation for the change and the 
agency describes how the change advances the interests of the agency. 
DHS has explained why the changes in this rule governing the issuance 
of discretionary EADs to asylum seekers is needed and DHS believes this 
rule will accomplish the stated goals. As discussed above, DHS believes 
that this rule is consistent with U.S. obligations under international 
law.
    DHS intentionally did not provide circumstances or cases that may 
constitute good cause, and will not include blanket exceptions for any 
circumstances, including for human trafficking, human smuggling and 
notarios, as one commenter suggested. To create a list of good cause 
exceptions would be overly restrictive and result in a narrow 
application of the term to the exclusion of many scenarios which, when 
considered in their totality, would result in a finding that the good 
cause exception has been met. DHS strongly condemns human trafficking 
in all its forms and believes victims of human trafficking may be able 
to qualify for the good cause exception where the trafficking caused 
the alien to enter the United States illegally. Where it can be 
determined that an alien is not trafficked and elects to hire a human 
smuggler or a notario to assist in entering the United States 
illegally, that alien should not qualify for the benefit of employment 
authorization absent an element of fleeing imminent harm.\133\ For 
every case where an alien claims the good cause exception for illegal 
entry, the alien bears the burden of establishing that he or she meets 
the exception. DHS will evaluate each request on a case-by-case basis.
---------------------------------------------------------------------------

    \133\ See ``Myths and Misconceptions,'' available at https://www.dhs.gov/blue-campaign/myths-and-misconceptions (``Human 
trafficking is not the same as smuggling. `Trafficking' is based on 
exploitation and does not require movement across borders. 
`Smuggling' is based on movement and involves moving a person across 
a country's border with that person's consent in violation of 
immigration laws. Although human smuggling is very different from 
human trafficking, human smuggling can turn into trafficking if the 
smuggler uses force, fraud, or coercion to hold people against their 
will for the purposes of labor or sexual exploitation. Under federal 
law, every minor induced to engage in commercial sex is a victim of 
human trafficking.'').
---------------------------------------------------------------------------

    DHS disagrees that it has narrowly interpreted the provisions of 
the Refugee Convention and disagrees that the bar to illegal entry and 
the good cause exception are ``penalties.'' DHS views the Article 31(1) 
restriction on imposition of ``penalties'' on asylum seekers as not 
encompassing discretionary ancillary benefits such as employment 
authorization which the Secretary may grant to aliens in the United 
States, notwithstanding their immigration status C.f. Mejia v. 
Sessions, 866 F.3d 573, 588 (4th Cir. 2017) (finding that denying 
illegal re-entrants the opportunity to apply for the discretionary 
relief of asylum does not constitute a penalty, as considered by Art. 
31(1) of the Refugee Convention). Further, DHS is in compliance with 
the authority given to the Secretary under section 208(d) of the INA, 8 
U.S.C. 1158(d), and this rule is within the parameters of the INA, 
which constitutes the United States' implementation of its treaty 
obligations.

[[Page 38575]]

Even if DHS's proposed change could be considered a ``penalty'' within 
the meaning of Article 31(1), DHS believes that its ``good cause'' 
exception, which parallels the exception in Art. 31(1), is sufficient 
to address any concerns about an asylum seeker's ability to seek 
discretionary employment authorization after illegal entry into the 
United States. Aliens who establish good cause for entering or 
attempting to enter the United States at a place and time other than 
lawfully through a U.S. port of entry, and within 48 hours, express to 
DHS a fear of persecution or an intent to seek asylum, will not be 
barred from applying for employment authorization after the required 
waiting period.
    DHS also does not agree that ``good cause'' is vague, ill-defined, 
or unconstitutionally void for vagueness. However, DHS has concluded it 
will slightly modify the provision requiring that an applicant who 
enters illegally present himself or herself ``without delay'' to the 
Secretary of Homeland Security (or his or her delegate), to read ``no 
later than 48 hours after the alien's entry or attempted entry.'' DHS 
initially provided the ``without delay'' general standard in the 
regulatory text but only explained the 48-hour requirement in the 
proposed form revisions and instructions for Form I-765. DHS is making 
a conforming change to the regulatory text to ensure that asylum 
seekers who apply for an EAD understand and have better notice of what 
DHS will require when determining whether an asylum seeker has met his 
or her burden to establish good cause for the illegal entry for EAD 
purposes.
c. Migrant Protection Protocols and Metering
    Comment: Many commenters opposed MPP, arguing that it violates the 
due process rights of aliens because they would not be able to file an 
asylum application or application for employment authorization while 
they were outside of the United States. Several commenters argued that 
DHS was intentionally limiting access to asylum and making it 
impossible for aliens to file for asylum because most were not able 
reach the ports of entry or because DHS has closed some ports of entry. 
Many commenters also opposed DHS' use of metering at ports of entry, 
arguing that it severely limited aliens' ability to apply for asylum. 
The commenters also argued that MPP combined with metering only 
incentivized aliens to cross illegally.
    Response: DHS will not address comments about whether recent 
Executive Orders, Administration policies or procedures, or other 
regulatory amendments outside this rule violate the INA, APA, or 
international law, as they are outside the scope of this rule. These 
include comments on MPP, the Safe Third Country interim final rule, 
metering at the U.S. ports of entry, changes in the credible or 
reasonable fear process, or the application of the expedited removal 
provisions to asylum seekers.
5. Procedural Reforms
    There were several requests by commenters for clarification of 
certain aspects of the procedural reforms in this rule. Several 
commenters also asked how USCIS adjudicators will use discretion to 
grant or deny employment authorization. DHS addresses these requests 
and concerns below and has made some clarifying edits to the rule as 
described below.
a. Biometrics Requirement
    Comment: A few commenters supported requiring biometric collection 
as part of the (c)(8) EAD process. One commenter indicated that 
requiring biometrics would increase DHS' ability to screen for 
disqualifying criminal conduct.
    Many commenters, however, opposed making asylum seekers pay a 
biometric services fee and requiring them to travel to an ASC for 
biometrics capture. The commenters argued that most asylum seekers do 
not have any money once they reach the United States, and that 
requiring them to pay a fee would be especially burdensome if they are 
not allowed to work for a long period of time. One commenter stated 
that asylum seekers should not be required to submit to biometrics 
because it violated the principles and heritage of the United States. 
Another commenter argued that biometrics collection would discourage 
legitimate asylum seekers from filing because of their distrust of the 
government and how it might use their biometric information. Several 
commenters felt that requiring asylum seekers to appear for biometric 
services appointments was akin to treating them like criminals. Others 
believed that requiring biometrics was an invasion of privacy.
    Many commenters felt that imposing a biometrics fee would burden an 
already vulnerable population. One commenter stated that the $85 
biometrics combined with the proposed fee increase for employment 
authorization in a separate rulemaking, would put asylum out of the 
reach to many who are already relying on limited savings to survive. 
The commenter also noted that requiring applicants to appear at ASCs 
for biometric collection will impose additional costs on the asylum 
seeker such as for transportation and lodging.
    Multiple commenters believed that adding the biometric requirement 
and requiring aliens to pay a biometric services fee was duplicative, a 
waste of government resources, and would extend the wait times for 
EADs. The commenters stated that additional biometrics were not needed 
because DHS already collects biometrics as part of the initial asylum 
application and those results are usually valid for 15 months. One 
commenter said that it would be impossible for asylum seekers to apply 
for asylum or pay for the cost of travel to a biometrics appointment 
especially since they were being kept in Mexico.
    Some commenters noted that DHS was already increasing fees for 
applications for employment authorization and imposing a new fee for 
filing of asylum applications. Referring to the proposed fee rule,\134\ 
the commenters noted that DHS said it was incorporating the biometric 
services fee into the costs for the underlying applications or 
petitions that would be filed with the agency. The commenters stated 
that pursuant to the fee rule, asylum seekers would have to pay $490 
plus an additional $85 biometric services fee, plus the proposed $50 
fee for asylum applications. Commenters asked DHS to clarify whether 
the $85 biometric services fee in this rule would be incorporated into 
the overall fee for the Form I-765.
---------------------------------------------------------------------------

    \134\ U.S. Citizenship and Immigration Services Fee Schedule and 
Changes to Certain Other Immigration Benefit Request Requirements, 
85 FR 4243 (proposed Jan. 24, 2020).
---------------------------------------------------------------------------

    A few commenters argued that DHS had not sufficiently justified the 
need for an additional biometric appointment or the biometric services 
fee especially since biometrics are always captured with the initial 
asylum application. The commenters stated that DHS had not provided any 
evidence that identity fraud was a significant problem among asylum 
seekers. One commenter questioned why DHS even needed to collect 
biometrics a second time and asked why DHS could not confirm an asylum 
seeker's identity with certainty the first time biometrics were 
collected in connection with the asylum application. Some commenters 
stated that DHS had not shown that the biometrics requirement would 
reduce the incentives for aliens to file frivolous, fraudulent, or non-
meritorious asylum applications. Another commenter argued that DHS has 
not provided data

[[Page 38576]]

to support why additional vetting was required ``to ensure that [DHS] 
appropriately vetted asylum seekers who are seeking employment 
authorization.''
    One commenter recommended that DHS only collect biometrics on 
initial EAD applications, and not renewals. The commenter believed that 
DHS only needed to verify the applicant's identity one time and, to the 
extent criminal history checks were necessary for renewal applications, 
there was no reason for DHS to re-take an applicant's fingerprints in 
order to submit the applicant's information to the FBI. Another 
commenter believed that making asylum seekers return to provide 
biometrics a second time was inefficient, duplicative, and a waste of 
resources.
    Finally, several commenters argued that retroactively applying the 
biometrics provision to initial or renewal (c)(8) EAD applications 
pending on the effective date of this rule was impermissible under the 
APA. The commenters disagreed with DHS's rationale that the new 
biometrics requirement was needed to implement the criminal 
ineligibility provisions. The commenters argued that applying the new 
requirement to asylum seekers who had already received employment 
authorization is unjustified and that DHS should already know if 
anything has changed since the initial biometrics capture in connection 
with the filing of the asylum application.
    Response: The biometrics requirements for immigration benefits is 
not a new requirement. DHS has general and specific authority to 
collect or require the submission of biometrics from applicants, co-
applicants, petitioners, requesters, derivatives, beneficiaries, and 
others directly associated with a request for an immigration benefit. 
Section 103 of the INA, 8 U.S.C. 1103, provides the general authority 
for the Secretary to issue forms and regulations that the Secretary 
deems necessary to administer and enforce the immigration laws and 
implement the provisions of the INA. Several other statutes also 
authorize the collection of biometrics and bar DHS from approving any 
immigration benefit until the results of background and security checks 
have been received.\135\ In addition, in the context of asylum 
applications, section 208(d)(5)(A) of the INA specifically bars DHS 
from approving an asylum application until--
---------------------------------------------------------------------------

    \135\ See supra fn. 88.

    ``the identity of the applicant has been checked against all 
appropriate records or databases maintained by the Attorney General 
and by the Secretary of State, including the Automated Visa Lookout 
System, to determine any grounds on which the alien may be 
inadmissible to or deportable from the United States, or ineligible 
---------------------------------------------------------------------------
to apply for or be granted asylum;''

    DHS collects the biometrics of asylum seekers to verify their 
identity and to determine if they have any disqualifying criminal 
history that would make them inadmissible to or subject to removal from 
the United States. In addition, under 8 CFR 103.15, DHS has the 
authority to require and collect biometrics from any applicant, 
petitioner, sponsor, beneficiary, or other individual residing in the 
United States for any immigration or naturalization benefit. DHS has 
been collecting biometrics for immigration benefits for years and uses 
biometrics to establish an alien's identity, determine if the applicant 
has a criminal record, and if yes, whether the alien's criminal history 
disqualifies the alien from receiving the immigration benefit. DHS does 
not believe it is burdensome, an invasion of privacy, or unreasonable 
to ask an alien who is seeking an immigration benefit to pay a 
biometric fee or to appear at a biometric services appointment.
    While the commenters are correct that DHS collects biometrics when 
an alien first files for asylum, DHS does not view the collection of 
biometrics at the time an alien files an application for employment 
authorization as duplicative or wasteful. The results of criminal 
history check generally only last 15 months. In addition, when DHS 
collects biometrics, the collection is tied to the form and is not 
person centric. Biometrics collected for the asylum application remain 
with the asylum application. Biometrics collected for employment 
authorization remain with the EAD application. Asylum applications and 
EAD applications are processed and adjudicated at separate locations 
and by separate USCIS business units. USCIS is not able to refresh or 
reuse biometrics that were collected for one benefit type for another 
benefit type.
    In addition, DHS will in many cases recapture biometrics to verify 
that the person who filed the application and appeared for biometrics 
capture when the application was filed is the same person who appears 
at the interview. Collecting biometrics for asylum EAD applicants 
enables DHS to know with greater certainty the identity of aliens 
seeking employment authorization by comparing EAD biometrics with those 
collected from the asylum applicant, to more easily vet those aliens 
for benefit eligibility, and to combat human trafficking and other 
types of exploitation. Requiring an applicant for an EAD to appear for 
biometrics does not affect or delay the processing of an asylum 
application because they are separate and distinct processes. The above 
stated benefits of capturing biometrics apply equally to both the 
initial and the renewal (c)(8) EAD application.
    Finally, DHS proposed an $85 biometrics services fee, but now 
anticipates that the fee required for initial and renewal Form I-765 
(c)(8) applicants will be less after adjustment via the USCIS fee 
rule.\136\ DHS did not propose to recover the cost of collecting 
biometrics for (c)(8) EAD applicants into the fee for Form I-765 in its 
fee rule NPRM because this rule was not final at the time it developed 
the fee schedule. Therefore, USCIS did not incorporate the cost of such 
biometrics services into the budget projections used in the proposed 
fee rule. To recover the cost of (c)(8) biometrics services, DHS must 
assess a standalone biometrics fee on (c)(8) EAD applicants. DHS 
estimates that the cost to USCIS of providing biometrics services for 
an alien seeking a (c)(8) EAD is approximately $30; thus, DHS 
anticipates that the biometrics fee that (c)(8) EAD applicants will pay 
beginning on the effective date of the fee rule will be at least $30 
and no more than $85. Until the effective date of the fee rule, all 
(c)(8) EAD applicants remain subject to the $85 biometrics fee.
---------------------------------------------------------------------------

    \136\ See 84 FR 62280-62371 (Nov. 14, 2019).
---------------------------------------------------------------------------

b. Use of Discretion in EAD Adjudications
    Comment: Several commenters argued that making EAD adjudications 
for asylum seekers discretionary was contrary to the law. One commenter 
opposed the rule because it changed the policy for granting EADs from a 
mandatory policy to a discretionary one. Another commenter asserted 
that DHS failed to detail the evidentiary standards the agency will 
consider when applying discretion, and suggested that if the rule is 
implemented, USCIS should institute mandatory training for USCIS 
adjudicators to ensure survivors are not punished. One commenter argued 
that DHS should exercise its discretion to grant employment 
authorization in all but limited, justified circumstances, and that the 
rule should codify these circumstances. Another commenter argued that 
the non-discretionary nature of (c)(8) EADs was intended to protect 
asylum seekers and reflect U.S. international obligations, and that the 
exception of (c)(8) EADs to discretionary determinations should not be 
reversed simply for the sake of ``consistency.''

[[Page 38577]]

The commenter also argued that DHS has discretion to promulgate 
regulations for asylum employment authorization, but that the INA does 
not provide a ``blank check'' of absolute discretion. Finally, the 
commenter added that the proposed expansion of discretion would lead to 
inconsistent, arbitrary, and capricious outcomes, as well as complicate 
the asylum process.
    Several commenters stated that the rule did not contain any 
guidance for use of discretion or explain how USCIS adjudicators would 
make discretionary EAD determinations. The commenters stated that 
adding discretion into the EAD process, without guidance, would allow 
USCIS officers to deny a case without explanation and without giving 
applicants any recourse to challenge the decision. Another commenter 
believed that introducing discretion into the asylum EAD adjudication 
would create an ``inordinate'' amount of arbitrariness and introduce 
uncertainty into the asylum EAD process.
    Multiple commenters suggested that USCIS officers who adjudicate 
EADs do not have the requisite expertise to make decisions that involve 
criminal assessments or to determine if a crime is disqualifying for 
immigration purposes. Some commenters argued that assessing whether a 
crime is disqualifying requires a complex review of the legal framework 
for analyzing Federal and state criminal laws and referred to the 
categorical and modified categorical approach applied by the courts 
when analyzing whether a crime is an aggravated felony. The commenters 
believed that asylum officers or IJs who regularly make decisions on 
asylum applications would be better equipped to determine if an asylum 
seeker should be barred from employment authorization as a matter of 
discretion based on criminal history. Another commenter argued that an 
applicant would be better able to discuss the nuances of their non-
political crimes in their home countries before an IJ rather than a 
USCIS EAD adjudicator.
    Response: DHS disagrees that changing the issuance of asylum EADs 
from mandatory to discretionary violates the law. The plain language of 
INA section 208(d)(2), 8 U.S.C. 1158(d)(2), confers authority to the 
Secretary to provide, amend, or rescind employment authorization for 
asylum applicants. With this amendment, the Secretary is returning 
discretion to the (c)(8) EAD adjudication. It is not clear from prior 
rulemakings why the agency determined to eliminate its discretion in 
this adjudication. It is clear, however, that the crisis at our 
southern border and in our asylum system necessitates that the 
regulation at 8 CFR 274a.13(a)(1) be revised to reinstate the 
Secretary's discretion and to narrowing the application of the 
Secretary's discretion in (c)(8) EAD adjudications. DHS cannot continue 
to provide EADs with virtually no eligibility criteria and nearly 
limitless renewal opportunities to a population of aliens where 
approximately 80 percent of those aliens are not eligible for asylum. A 
mandatory and limitless (c)(8) EAD is too strong a draw for economic 
migrants from around the world to enter and remain in the United States 
with no avenue for obtaining lawful status.
    Also, there are many immigration benefits throughout the INA that 
have a discretionary component and USCIS adjudicators receive extensive 
training over multiple weeks to prepare them to adjudicate numerous 
applications, petitions, and other immigration benefits. USCIS 
adjudicators are trained on making discretionary determinations and 
given an introduction to asylum and refugee adjudications. The training 
also includes a module on how to make discretionary determinations and 
USCIS ISOs receive procedural guidance for making discretionary 
decisions for specific immigration benefit types. USCIS adjudicator 
training also covers topics like how to identify and interview victims 
of domestic violence and human trafficking.
    Discretionary decisions are made on a case-by-case basis, taking 
into account all factors and considering the totality of the 
circumstances in each case. When making a discretionary EAD 
determination, USCIS adjudicators consider any statutory exceptions or 
exemptions that may affect the alien's eligibility and all relevant 
information contained in each application and submitted by the alien, 
including criminal history or other serious adverse factors that might 
weigh against a favorable exercise of discretion. EAD decisions are not 
appealable and Congress did not authorize judicial review of denials of 
applications for discretionary EADs.
    USCIS adjudicators are instructed on how to render a discretionary 
decision and fully understand that a decision cannot be arbitrary and 
must articulate those factors the USCIS adjudicator considered. USCIS 
adjudicators also are instructed to consider both positive and negative 
factors that may be relevant to the applicant's case and to avoid using 
any specific formulations or any other analytical tools that may 
suggest that they are quantifying the exercise of favorable or 
unfavorable discretion. USCIS adjudicators assess whether on balance a 
favorable exercise of discretion is warranted in light of the totality 
of the circumstances. The ultimate decision to grant discretionary 
employment authorization in a case depends on whether, based on the 
facts and circumstances of each individual case, the USCIS adjudicator 
finds that the positive factors outweigh any negative factors that may 
be present. In instances where discretionary decisions involve complex 
or unusual facts, USCIS adjudicators may request supervisory review 
before the decision is issued.
    Further, USCIS adjudicators who decide applications for employment 
authorization are trained on how to review criminal laws and criminal 
offenses that may disqualify an alien from eligibility for an EAD. 
USCIS adjudicators also receive general training on criminal grounds 
and eligibility for immigration benefits as part of their overall 
adjudicator training and they are kept abreast of changes in criminal 
and immigration laws and regulations that may affect decisions on 
specific immigration benefits. This is particularly true in the (c)(8) 
EAD context because under the former regulations, an asylum applicant 
who has been convicted of an aggravated felony is not eligible for 
employment authorization. See former 8 CFR 208.7(a)(1).
    Even with the changes DHS is making in this rule to address which 
crimes will be deemed categorical bars to employment authorization, DHS 
does not believe this rule presents over-burdensome procedural or 
operational challenges for USCIS adjudicators when it comes to 
evaluating whether an asylum seeker with criminal history is eligible 
for employment authorization as a matter of discretion. DHS will update 
the USCIS Policy Manual, Adjudicator's Handbook, and the EAD Standard 
Operating Procedures appropriately and where needed to implement this 
rule.
c. USCIS No Longer Automatically Deeming Asylum Applications Complete
    Comment: One commenter generally supported eliminating of the 
requirement that USCIS automatically deem an asylum application 
complete if not returned in thirty days, however, most commenters 
opposed it. Several commenters argued that eliminating the requirement 
would violate asylum seekers due process rights. The commenters 
believed that this would cause more delays, and increase wait times in 
EAD adjudications even when the delays were caused by USCIS. One 
commenter believed it did not take a

[[Page 38578]]

long time to review applications for completeness and questioned 
whether USCIS really was burdened by such reviews. Several commenters 
noted that many applications for asylum are pending for years and that 
recently USCIS has been rejecting cases that were in the backlogs for 
minor omissions or errors. The commenters were concerned that these 
rejections after the one-year filing deadline had already passed 
effectively barred many applicants from EAD eligibility. One commenter 
argued that if USCIS delays returning an incomplete application beyond 
30-days that delay should be attributable to USCIS and should not stop 
the alien's accrual of time towards eligibility to apply for an EAD.
    Some commenters believed that removing the requirement would allow 
the Government to delay processing, remove the incentive for USCIS to 
reduce backlogs, and would extend EAD processing wait times. One 
commenter felt that removing the Asylum EAD clock removed the 
accountability mechanism that had been in place to ensure that USCIS 
does not delay processing. The commenter stated that eliminating the 
clock effectively allowed USCIS to ``duck'' responsibility to process 
in a timely manner. Finally, one commenter recommended that DHS adopt a 
tolling mechanism for aliens who file incomplete applications to submit 
an amended application even after the one-year filing deadline has 
passed.
    Response: DHS is eliminating the requirement that any asylum 
application is automatically deemed complete if not returned to the 
alien within 30 days. This amendment brings the asylum application 
filing process in line with the general rules governing all immigration 
benefit requests under 8 CFR 103.2, which requires all applicants for 
immigration benefits to file complete applications and petitions. 
Requiring an applicant to file a complete application does not diminish 
due process, substantively effect the applicant's eligibility for 
asylum, or prejudice the applicant. Nor does it preclude the applicant 
from submitting supporting documents with the application, or later 
amending the application. DHS is eliminating the requirement because it 
arbitrarily allowed an incomplete application to be treated as complete 
and created unnecessary administrative burdens for USCIS. Ensuring that 
USCIS adjudicators devote time and resources to the processing of 
complete applications not only benefits USCIS, but also applicants.
    DHS will not adopt a tolling mechanism to allow aliens who 
initially submitted incomplete applications to submit amended 
applications after the one-year filing deadline or allow aliens to 
continue to accrue time towards EAD eligibility when they file 
incomplete applications. Applicants always bear the burden and 
responsibility to ensure that their applications are complete when 
filed. USCIS will continue to review all applications for completeness 
as it currently does and will reject and return applications with the 
reasons for the rejection, as is done with other applications and 
benefit types.
    Finally, DHS believes that one year is a sufficient length of time 
to allow an alien to file a complete application. Aliens who fail to 
file complete applications during the 1-year deadline will still have 
an opportunity to qualify for employment authorization if they can 
establish that their failure to file a complete application was due to 
changed or extraordinary circumstances under section 208(a)(2)(D) of 
the INA, 8 U.S.C. 1158(a)(2)(D) and 8 CFR 208.4(a)(5)(v).
d. Elimination of Recommended Approvals
    Comment: Several commenters opposed the elimination of recommended 
approvals. One commenter stated that it was critical for applicants to 
know the outcome of their asylum interview and to know that their 
employment authorization continues if their cases are referred to an 
IJ. Another commenter agreed that if an applicant's case is being 
referred to an IJ, USCIS should be clear in the referral letter about 
the applicant's eligibility. One commenter believed that by eliminating 
recommended approvals, DHS was essentially denying aliens the ability 
to work even when the delays were attributable to the federal 
government due to the delays in background checks. The commenter 
claimed that background checks can take years and eliminating 
recommended approvals would leave people in limbo. The commenter stated 
that rather than eliminating recommended approvals, government agencies 
should work together to clear background checks in a more timely 
manner. Several commenters argued that the elimination of recommended 
approvals did not support the purposes of the rule and DHS failed to 
explain how elimination of recommended approvals would reduce 
incentives to file frivolous, fraudulent, or non-meritorious claims.
    Response: As noted earlier, previously DHS issued recommended 
approvals even when all required background and security check results 
had not been received, and recipients of such notices were eligible for 
employment authorization. However, Congress has since statutorily 
precluded DHS from granting any immigration benefit, including EADs, 
until all background and security checks have been completed.\137\ DHS 
understands commenters concerns about the length of time it takes in 
certain cases to obtain background check results and DHS is working 
collaboratively with other agencies involved in the background check 
process to reduce such delays.
---------------------------------------------------------------------------

    \137\ See supra fn. 88.
---------------------------------------------------------------------------

    DHS disagrees with the commenters who argue that elimination of 
recommended approvals does not support the purpose of the rule. As 
noted, this outdated provision is inconsistent with Congressional 
mandate.\138\ This amendment helps restore integrity into the provision 
of asylum-based EADs by ensuring aliens who might ultimately be found 
ineligible for asylum after the results of all background and security 
checks are received and reviewed do not receive EADs based on 
preliminary decisions. DHS must have the results of all required 
background and security checks before it grants any immigration benefit 
to verify an alien's identity and thoroughly review any immigration and 
criminal history which would disqualify the alien from eligibility for 
the immigration benefit, including discretionary EADs. Eliminating 
recommended approvals is consistent with the stated purposes of the 
rule.
---------------------------------------------------------------------------

    \138\ See, e.g., Consolidated Appropriations Act, 2019, Public 
Law 116-6, 113 Stat. 33, Div. A, tit. IV, sec. 402 (2019) (``None of 
the funds made available in this Act may be used by U.S. Citizenship 
and Immigration Services to grant an immigration benefit unless the 
results of background checks required by law to be completed prior 
to the granting of the benefit have been received by U.S. 
Citizenship and Immigration Services, and the results do not 
preclude the granting of the benefit.'').
---------------------------------------------------------------------------

e. Applicant-Caused Delays
    Comment: Several commenters argued that the 14-day period for 
filing supplementary evidence in asylum cases was not sufficient and 
strained the resources of nonprofit advocacy organizations and law 
firms because it did not provide them enough time to prepare responses 
for their clients. Several commenters mentioned the delays in mail and 
alleged USCIS's ``chronic'' mail problems. The commenters were 
concerned that applicants would not have sufficient time to submit 
supplementary information prior to the interview or prior to the 14-day 
window, and argued that it was unfair for applicants to be penalized 
for agency-caused delays. The

[[Page 38579]]

commenters also indicated that, even though interviews are scheduled 21 
days prior to the interview date, given current mailing procedures if 
an applicant does not receive the notice of interview for 5-7 days, 
then the applicant may not meet the 14-day deadline at all.
    One commenter argued that it is unfair to expect an applicant to 
justify missing an interview date when the NPRM creates no rules for 
USCIS to notify an applicant when he or she misses an interview or 
biometric services appointment. Another commenter said that USCIS 
should not stop sending notifications to applicants when they fail to 
appear for an interview or miss a biometric services appointment, 
especially given that there is a problem with USCIS sending notices to 
the wrong address even though applicants promptly inform USCIS of their 
new address.
    One commenter raised concerns that the new rule, without notice of 
failure to appear, will more significantly impact EAD adjudications of 
domestic violence survivors, as violent perpetrators of domestic 
violence often intercept mail and confiscate hearing notices. Another 
commenter said that barring those who fail to appear or respond to a 
notice penalizes survivors for the abuse they've experienced, as many 
times perpetrators of violence have used deportation as a threat. The 
commenter stated that the rule disregards the ways in which survivors 
are isolated and controlled by their abusers, who may exploit victims' 
lack of English proficiency and isolation from their support systems.
    Several comments believed that the definition of what constitutes 
an applicant-caused delay was overbroad, and that, when combined with 
other proposals by the administration that target asylum processing, 
the definition would result in indefinite delays and thereby force 
asylum seekers into destitution. One commenter argued that rejecting 
applications for applicant-caused delays would prevent such applicants 
from making their strongest cases and applicants would have no way of 
knowing when USCIS would adjudicate their cases.
    Several commenters believed that denials for applicant-caused 
delays would result in arbitrary denials and increased inefficiencies 
in asylum adjudications. One commenter argued that DHS was denying 
asylum seekers due process because it did not take into account delays 
that are out of control of the applicant or out of necessity such as 
illness or requests for changes in venue. Another commenter argued the 
denial of an EAD for actions such as rescheduling or transfer requests, 
not providing an interpreter, or not appearing for a biometrics 
appointment violates the rights of asylum seekers under domestic and 
international law. A few commenters argued that denying employment 
authorization to asylum applicants who may cause a delay in their 
asylum case out of necessity will create due process issues because 
many asylum applicants in desperate financial straits may prioritize 
employment authorization over taking action critical to their asylum 
case. One commenter stated that DHS would be forcing asylum seekers to 
choose between presenting a fully supported asylum application and 
supporting themselves financially and as such this rule was coercive 
and violated their rights under the Refugee Convention and the 1980 
Refugee Act. Finally, several commenters opposed denials for applicant-
caused delays especially because the current regulations allow for an 
exception where the notice of interview or of the biometrics 
appointment is not mailed to the applicants correct address.
    Response: DHS disagrees with commenters' assertions that the 
definition of applicant-caused delays is too broad, punishes 
applicants, or violates the Refugee Convention or Refugee Act of 1980. 
DHS also disagrees that the list of applicant-caused delays is 
arbitrary and violates asylum seekers due process rights.
    While DHS disagrees that the applicant-caused delays infringe on 
due process, DHS did consider whether the alien would have sufficient 
notice of the date of the EAD adjudication, which USCIS would use to 
determine EAD eligibility under the proposed rule. The alien would have 
little control over the date of adjudication, an eligibility factor, 
which implicates due process. Accordingly, DHS has amended this 
provision to provide that applicant-caused delays existing on the date 
the alien files the (c)(8) EAD application will be considered. Unlike 
the date of adjudication, the alien has control over the date of 
filing. DHS believes this amendment provides more certainty of the 
eligibility requirements, while disincentivizing the alien from 
prolonging the asylum adjudication.
    Under the amended regulations, asylum seekers continue to have the 
opportunity to present their asylum claims in accordance with 
international law and with the laws passed by Congress. USCIS provides 
information about the asylum application process in the Form I-589 and 
in the accompanying filing instructions. USCIS also provides advance 
notice of scheduled asylum interviews and biometric services 
appointments, and makes information about the status of asylum 
applications available online. These procedures provide asylum 
applicants with sufficient notice and adequate process to prepare for 
the asylum process and establish their eligibility for asylum.
    DHS has provided examples of applicant-caused delays in 8 CFR 
208.7(a)(1)(iv) which give asylum seekers notice of the types of 
actions DHS will consider as delays to application processing. 
Unfortunately, many aliens file skeletal asylum applications without 
all the necessary supporting documentation as a way to start the EAD 
clock, and wait until the day of their interview to supplement their 
application with hundreds of pages of evidence that cannot all be 
reviewed at the interview. Sometimes skeletal filings or last minute 
submissions of supplementary evidence require interviews to be 
rescheduled so that the documents can be reviewed. Such loopholes, left 
unaddressed, are ripe for abuse by aliens who wish merely to delay the 
asylum adjudication in order to live and work in the United States. The 
regulatory reforms in this rule are designed to reduce the need to 
reschedule interviews by ensuring that all asylum applicants submit a 
complete application and submit supplementary evidence well in advance 
of their interviews or hearings.
    Nothing in this rule precludes an asylum applicant from submitting 
a complete application at the time of filing. Even if there are 
potential delays in obtaining documents that are material to the 
applicant's eligibility for asylum, nothing precludes the applicant 
from submitting these documents once they are received at any time 
after the date of filing of the application up to 14-days prior to the 
applicant's interview date. USCIS, in its sole discretion, also has the 
authority to excuse a failure to appear for an interview or biometric 
services appointment due to exceptional circumstances. See 8 CFR 
208.7(a)(1)(iv)(D), 8 CFR 208.10(b)(1). Finally, DHS is not eliminating 
or ending the practice of notifying asylum applicants about the 
consequences of failing to appear for an interview or biometrics 
appointment in their I-589 receipt notice and in their notices for an 
interview and biometrics appointment.
    With regard to an applicant's ability to supplement or amend an EAD 
application, DHS does not believe that establishing eligibility for an 
EAD is an onerous requirement and EAD applications do not require 
extensive

[[Page 38580]]

documentation or the level of evidence that is required for asylum 
applicants. Applicants for employment need only to submit evidence to 
demonstrate that they are not subject to a disqualifying criminal 
ground or ground that would result in a mandatory denial, or if they 
are, that they still warrant an EAD as a matter of discretion because 
the positive factors in their cases outweigh the negative. DHS has 
required applicants to show that they are not aggravated felons in the 
past and USCIS adjudicators are well versed in the criminal laws to be 
able to make a determination in the EAD context. DHS believes that the 
time given to prepare the application for an EAD, make arguments, and 
supplement the EAD application prior to adjudication is sufficient for 
an alien to make his or her case.
    DHS acknowledges the commenters' concerns about the rule's 
potential impact on domestic violence survivors and that certain 
circumstances may prevent applicants from appearing for necessary 
appointments. USCIS strives to ensure that applicants receive proper 
notice of their scheduled biometric services appointments for EADs. As 
is provided in the regulation, USCIS may, in its sole discretion, 
excuse the failure to appear for a biometrics services appointment, and 
reschedule the missed appointment. See 8 CFR 103.2(b)(13)(ii).
    With regard to comments associated with mail problems, asylum 
applicants are advised in the I-589 instructions and in their I-589 
receipt notices that they will need to provide any documentary evidence 
at least 14 days prior to the interview with USCIS. Accordingly, they 
are provided notice in advance of receiving information about their 
scheduled interview that any documents they want considered must be 
submitted in advance, or they risk causing a delay in the adjudication 
of their asylum application, which may affect their EAD eligibility. In 
addition, most asylum interview notices are automatically generated and 
mailed to applicants, so it is unclear why there would be a 5 to 7 day 
delay for applicants to receive notices, absent postal issues or 
improper addresses. These issues are outside the agency's control.
f. Denials and Terminations
    Comment: Some commenters supported terminations immediately after 
denial of an asylum application or when the asylum decision was 
administratively final. However, most opposed denying employment 
authorization to those who sought review of their denials in federal 
court. Some commenters believed that it was arbitrary and capricious, 
premature, and unreasonable not to allow an alien seeking review of a 
denial in federal courts especially when they might ultimately win 
their cases in court. The commenter cited examples of cases where 
asylum seekers were ultimately able to prevail on appeal despite the 
denials at the administrative levels. A few commenters argued that DHS 
had not provided a sufficient rationale for restricting eligibility for 
EAD authorization at the appeals stage or for termination immediately 
after an asylum officer or IJ renders a decision on the asylum 
application. One commenter questioned how DHS could believe that 
limiting employment authorization until the end of the administrative 
appeal process complied with the due process requirements. One 
commenter stated that immigration court decision-making is notoriously 
arbitrary, and this arbitrariness is not corrected by the BIA. The 
commenter went on to say that immigration courts have been criticized 
for a multitude of other flaws and cited court cases exemplifying such 
``adjudicatory failings.'' The commenter provided examples of recent 
changes that have made immigration courts and the BIA ``even more 
beholden to the political whims'' of the Trump Administration. Thus, 
the commenter said, given these considerations, petitioning for review 
is necessary for noncitizens with meritorious claims who are seeking 
protection. Another commenter argued that, in light of the ``meager 
procedural protections afforded by the administrative scheme,'' (citing 
Thuraissigiam v. United States Department of Homeland Security, 917 
F.3d 1097, 1118 (9th Cir. 2019)), the right to appeal to federal court 
is particularly important to asylum seekers whose applications have 
been denied in the ``highly flawed administrative process.''
    Several commenters argued that Congress gave aliens the right to 
pursue judicial review of their claims through petitions for review 
under section 242 of the INA and that the proper remedy was not to deny 
employment authorization during judicial review but for the government 
to challenge any concerns they had about the validity or frivolousness 
of the claim at the petition for review stage. Some commenters believed 
that denying employment authorization during the federal appeals 
process was an Equal Protection and Due Process violation. Another 
commenter argued that DHS's rationale was insufficient and the change 
amounted to a denial of access to the courts, in violation of the Due 
Process and the Suspension Clauses. Some commenters argued that the 
poor would be precluded from challenging denials and that this 
constituted a denial of access to judicial review. One commenter stated 
that if an alien was seeking review in the federal courts it was more 
indicative that the alien had a meritorious claim, not less. The 
commenter argued that DHS was simply using the changes in this rule as 
a ``backdoor'' to deny poor asylum seekers access to the courts. 
Several commenters believed that denying EADs while a case is on appeal 
to the federal courts was highly prejudicial especially when the alien 
puts forth a claim that has merit and that claim is being heard for the 
first time by an Article III court. One commenter asked why the EAD 
even needed to be terminated when an asylum officer denies a case, 
especially since almost all cases are automatically referred to the 
immigration courts. Several commenters argued that denying asylum 
seekers the ability to work while they pursue their cases in federal 
court discourages applicants from seeking review of their cases. 
Another commenter said that not allowing asylum seekers to work while 
their cases were on appeal to the federal courts would essentially mean 
that asylum will only be available to the wealthy. One commenter said 
that denying or terminating EADs especially in cases where the alien 
was in a lawful status and their cases were not referred to immigration 
court would be disruptive.
    Some commenters raised concerns about how the auto-termination 
provisions would work. One commenter believed auto-termination was 
unworkable, especially for employers. The commenter questioned how 
employers would know whether an EAD was based on a pending asylum 
application, if the EAD had been auto-terminated, or if the alien's 
case was on appeal. Several commenters believed that the new 
termination procedures would be a huge financial and logistical burden 
for employers. Many commenters argued that denying or automatically 
terminating the EADs of asylum applicants who were employment 
authorized prior to the effective date of the rule essentially meant 
that they were prohibited from getting their EADs renewed.
    Finally, several commenters asked DHS to clarify how the 
terminations provisions would work in cases where EADs were filed by 
UACs that were referred to the immigration courts. One commenter said 
it is unclear how the

[[Page 38581]]

termination provisions apply to unaccompanied children whose 
applications are not granted by USCIS. The commenter stated that, under 
the TVPRA, when an unaccompanied child's case is denied by USCIS, the 
case reverts to immigration court, where the child can again seek 
asylum defensively before an IJ. The commenter asked whether DHS would 
consider a case that reverted to the immigration court a denial or a 
referral, for purposes of EAD continuation, under this rule. The 
commenter suggested that, if the rule is finalized, proposed paragraph 
208.7(b)(1)(i) should be revised expressly to state that UAC 
applications are to be treated the same as the other ``referrals'' 
covered by that paragraph.
    Response: Congress did not mandate employment authorization for 
asylum seekers, and asylum seekers are not entitled to employment 
authorization under the law. Nothing in this rule violates the Equal 
Protection, Due Process, or Suspension Clauses of the U.S. 
Constitution. In addition, as noted earlier, even if DHS chooses to 
distinguish between classes of aliens to whom it will give employment 
authorization, such distinctions are permissible by law.\139\ This rule 
is not arbitrary or capricious and does not draw distinctions based on 
any protected categories which would trigger judicial scrutiny on 
constitutional grounds.
---------------------------------------------------------------------------

    \139\ See Mathews v. Diaz, 426 U.S. 67, 82-83 (1976).
---------------------------------------------------------------------------

    Since asylum seekers are not entitled to employment authorization, 
the Secretary could chose to exercise his discretion to bar all asylum 
seekers from obtaining employment authorization. However, through this 
rule, the Secretary has chosen to allow asylum seekers to obtain 
employment authorization under certain limited circumstances. DHS does 
not believe that (c)(8) EADs should be granted or remain valid for 
those who have been denied asylum through multiple levels of 
administrative review. DHS also disagrees that failing to grant 
employment authorization to those seeking an appeal in Federal court is 
arbitrary and capricious. Aliens are afforded multiple levels of 
administrative review within DHS as well as before the immigration 
courts and BIA, which provides sufficient time and a reasonable process 
for asylum seekers to establish that they warrant a favorable exercise 
of discretion for a grant of asylum. If an alien is in immigration 
court proceedings and his or her asylum case is denied, the alien will 
be able to appeal the decision to the BIA. If a timely appeal is filed, 
employment authorization will be available to the alien during the BIA 
appeal process. If an asylum officer denies an affirmative asylum 
application or an IJ or the BIA denies an asylum application, the alien 
should not remain authorized to work.
    DHS disagrees that prohibiting employment authorization during the 
federal court appeal process is an attempt to discourage aliens from 
seeking federal court review. This rule does not place any limits on an 
alien's right to pursue federal court review. Rather, this rule places 
limits on access to employment authorization in situations in which 
aliens have been found not to be eligible for asylum by multiple 
decision-makers, including an asylum officer and/or IJ, and the BIA. 
Following the federal court appeals process, the alien could reapply 
for an EAD if the federal court remands the asylum case to the BIA. DHS 
believes that aliens seeking federal court review have the opportunity 
and time to plan and prepare for the lack of access to employment 
authorization during the federal court appeal process. Prohibiting 
employment authorization for aliens whose cases have been denied by DHS 
and DOJ and are moving through the federal court system does not 
violate the INA.
    With regard to questions about referrals to immigration court, not 
all asylum cases get referred to immigration court after the asylum 
officer renders a decision. There is a difference between an 
affirmative asylum referral and an affirmative asylum denial. An 
affirmative asylum referral means that the alien who filed the 
application is not in any lawful status, therefore upon not receiving a 
grant of asylum, they are referred to an IJ. An affirmative asylum 
denial means that the alien who filed the application is still in 
lawful status, they are issued a Notice of Intent to Deny (NOID), the 
alien can respond to the NOID and if he or she does not overcome the 
reasons for a denial, the affirmative asylum application is denied and 
not referred to an immigration court. The reason an affirmative asylum 
denial is not referred to immigration court is because the alien is 
maintaining valid immigrant or nonimmigrant status or Temporary 
Protected Status (TPS) and is not amenable to removal. An asylum 
officer has the authority to deny, dismiss, or refer the case to 
immigration court.\140\ This rule does allow an alien to maintain their 
EAD while being referred to an immigration court.
---------------------------------------------------------------------------

    \140\ 8 CFR 208.14.
---------------------------------------------------------------------------

    Finally, with regard to how these provisions affect cases filed by 
UACs, this rule will not impact UAC cases that are adjudicated by 
USCIS. If USCIS has jurisdiction over an asylum application for a UAC, 
as defined in 6 U.S.C. 279(g)(2), then USCIS can either grant asylum or 
issue a ``UAC Decision Notice for Non-Eligibility'' if the UAC is 
already in removal proceedings. If a UAC is issued a notice for non-
eligibility, then their asylum application is returned to immigration 
court. If a UAC is already in immigration court proceedings they are 
not issued a new Notice to Appear (NTA). If the UAC had not yet been 
placed in immigration court proceedings and is not granted asylum 
before USCIS, then the UAC would be issued an NTA and referred to 
immigration court, where they can continue to pursue their asylum 
application. The only instance where a UAC would receive a final denial 
of their asylum application is where the UAC is in lawful status at the 
time of the final adjudication of their Form I-589. In all other 
instances, a UAC does not receive a final denial from USCIS and would 
still remain eligible for employment authorization. DHS does not find 
it necessary to amend 8 CFR 208.7(b)(1)(i) to reflect how UACs 
applications are adjudicated at USCIS. Under the TVPRA, USCIS has 
initial jurisdiction over a UAC and if the UAC is found ineligible for 
asylum, they are referred to an IJ and issued an NTA if they were not 
already in removal proceedings, or if they were already before 
Immigration Court, their case is returned to DOJ-EOIR to continue 
proceedings.\141\
---------------------------------------------------------------------------

    \141\ See TVPRA, Public Law 110-457, sec. 235(d)(7)(B) 
(effective March 23, 2009).
---------------------------------------------------------------------------

g. Validity Periods
    Comment: Some commenters claimed that DHS was shortening the 
validity periods. One commenter argued that affording USCIS discretion 
in shortening the duration of EADs would undermine asylum seekers' 
ability to find employment, as an overly short EAD can render an alien 
unemployable. The commenter faulted the proposal for failing to provide 
factors or guidelines concerning the duration of EADs. Multiple 
commenters generally opposed allowing EADs to have validity periods of 
less than 2 years, arguing that shorter validity periods would only 
increase fees and administrative waste by requiring more applications 
for renewal. One commenter recommended that DHS create a longer EADs 
validity period of 5 years in order to eliminate renewal applications 
and reduce immigration

[[Page 38582]]

backlogs. Several other commenters were concerned that granting USCIS 
discretion to issue EADs with short validity terms would introduce 
uncertainty into the lives of asylum seekers and harm their job 
prospects.
    Response: Individual adjudication officers will not have discretion 
to change the validity period of an EAD under this rule. The duration 
of the validity period of an EAD will be at the discretion of USCIS and 
will be set in order to promote consistency and fairness and will not 
be left up to the discretion of individual officers. Factors and 
guidelines concerning the duration of EADs will be set internally as a 
USCIS policy decision.
    Effective October 5, 2016, USCIS increased the validity period for 
initial or renewal EADs for asylum applicants from one year to two 
years.\142\ This change applied to all (c)(8)-based applications 
pending as of October 5, 2016 and all such applications filed on or 
after October 5, 2016. USCIS made this adjustment to align with 
adjudicatory work flows. Up until October 5, 2016, USCIS had been 
issuing (c)(8) EADs in 1 year increments. This rule does not shorten 
the current two-year validity period set by agency policy, but it 
ensures USCIS will not adjust the EAD validity period to greater than 
two years. DHS believes it is reasonable to limit the EAD validity 
period in this manner. The EAD renewal process is necessary for DHS to 
confirm the alien's continued eligibility for this ancillary benefit, 
and lengthening the validity period would jeopardize this important 
verification. These considerations must be balanced against 
adjudicative efficiency and potential administrative burden. Capping 
the EAD validity period to two years permits continuity of employment 
for the alien while ensuring that USCIS periodically verifies continued 
eligibility. DHS also notes that USCIS maintains multiple successful 1 
year EAD programs, including for approved asylum applicants and aliens 
paroled as refugees. DHS emphasizes this rule does not shorten the 
existing 2 year EAD validity period, nor does it codify a permanent 
validity period of 2 years. It restricts the (c)(8) EAD validity 
duration to not longer than 2 years. However, nothing in this 
regulation limits USCIS's authority to reduce the validity period for 
an EAD to less than 2 years. The EAD validity period continues to 
depend on the adjudicatory work flows of the agency, an ongoing 
analysis of the extent to which the validity period of the EAD is 
encouraging economic migration and baseless asylum claims, and the 
ongoing security environment.
---------------------------------------------------------------------------

    \142\ https://www.uscis.gov/archive/uscis-increases-validity-work-permits-two-years-asylum-applicants (last accessed 2/14/2020).
---------------------------------------------------------------------------

h. Parole-Based EADs for Asylum Seekers Who Establish Credible Fear
    Comment: Several commenters opposed limiting parole-based EADs for 
asylum seekers who passed credible fear screenings. One commenter 
argued that the language in the rule does not give applicants adequate 
notice of what is being changed and fails to explain or address how 
many aliens who are paroled into the United States will be affected. 
The commenter indicated that DHS also failed to address the impact the 
proposed change would have on long-term parolees who have been in the 
United States. One commenter argued that DHS failed to define what 
constitutes ``foreign policy, law enforcement, or national security 
reasons''. Several commenters argued that the change to the parole EAD 
provisions did not support the rationale or stated purposes for the 
rule, that the rule did not consider or analyze the impact of such a 
change on long-term parolees, and that the rule lacked information as 
to how many parolees currently have (c)(11) authorization. One 
commenter remarked that the 2,700 beneficiaries in the Central American 
Minors Program (CAM) parole cases from a recent settlement would be 
impacted. The commenter wrote that employment authorization is 
important to these beneficiaries, who also relied on a USCIS statement 
from 2019 which explained that they would be eligible for employment 
authorization.
    A commenter argued that the proposal would unreasonably target 
meritorious asylum applicants by denying immediate employment 
authorization under 8 CFR 274a.12(c)(11) to aliens paroled into the 
United States based on a credible fear determination. One commenter 
stated that the change furthers neither of the major objectives of the 
proposed rule, asserting that (c)(11) parolees are likely to qualify 
for relief under CAT. Another commenter also argued that it is 
unnecessary to codify current DHS policy and thereby constrain future 
administrations. One commenter stated that the proposal would increase 
state costs by removing (c)(11) parolees' ability to work and earn 
income.
    Response: Through this rule, DHS is maintaining the distinction 
between those who are admitted into the country as parolees for urgent 
humanitarian reasons or significant public benefit and those who are 
paroled as claimed asylum seekers due to lack of detention capacity. 
DHS is revising the language at (c)(11) to more clearly draw this 
distinction. All asylum seekers should be subject to the same rules, 
including the rules governing eligibility for employment authorization. 
Unfortunately, many criminal organizations and human smugglers are well 
aware of DHS's limited detention capacity and have relied on this as a 
selling point for ``immediate'' employment authorization, which in turn 
has encouraged more economic migrants to pay to be smuggled and 
illegally enter the United States. DHS believes that it is important to 
distinguish the ability to seek employment authorization for certain 
aliens paroled truly for urgent humanitarian reasons or significant 
public benefit, and to treat the remaining aliens seeking to enter the 
United States uniformly in terms of requesting asylum based on credible 
fear.
    In terms of CAM, the approximately 2,700 aliens covered by the 
April 12, 2019 settlement agreement in S.A. v. Trump, et al., Case No. 
3:18-cv-03539-LB (N.D. Cal.) involving CAM will not be impacted by the 
final rule. Specifically, the final rule continues to allow for 
individuals paroled for urgent humanitarian reasons or significant 
public benefit pursuant to section 212(d)(5) of the INA, 8 U.S.C. 
1182(d)(5), to seek employment authorization, which would encompass 
minors who entered under CAM. The exceptions to 8 CFR 274a.12(c)(11) in 
the final rule preserve the ability of entrepreneur parolees and their 
spouses to obtain employment authorization under the current 
regulations at 8 CFR 274a.12(b)(37) and (c)(34).
    In terms of the impact of the change on long-term parolees and how 
many aliens would be affected, DHS estimated in the NPRM at 84 FR 62405 
that from FY 2014 and FY 2018, an average of 13,000 applicants sought 
employment authorization through the (c)(11) category. DHS also noted 
in the NPRM at 84 FR 62417 that even though (c)(11) parole based 
applications for employment authorization postmarked on or after the 
effective date of this final rule would be denied, such aliens would 
still be eligible to apply for employment authorization under the 
(c)(8) category subject to the eligibility changes in this rule, 
including the 365-day waiting period. DHS is unable to estimate how 
many would apply for an EAD under 8 CFR 274a.12(c)(8), and how many 
would be granted the EAD subject to the eligibility changes in this 
rule. Impacted aliens may incur delayed earnings or lost earnings if 
they do not

[[Page 38583]]

apply for or are not eligible for a (c)(8) EAD.
    DHS also disagrees with the commenters' unsupported assertions that 
the rule targets meritorious asylum applicants by requiring aliens 
paroled following a positive credible fear determination be subject to 
the same waiting period as all other asylum seekers. According to DOJ-
EOIR data, very few of the aliens found to possess a credible fear 
ultimately succeed on the merits of their asylum claims. In FY 2019, 
DOJ-EOIR granted only 15.25 percent of asylum applications filed by 
aliens found to have a credible fear.\143\ Over the past five years, 
the average DOJ-EOIR asylum grant rate of cases originating with a 
credible fear claim is only 14.25 percent.\144\ Furthermore, according 
to DOJ-EOIR, between FYs 2008 and 2019 nearly 45 percent of aliens 
referred to the immigration court following a positive credible fear 
claim did not file for asylum with an IJ.\145\ Even if all credible 
fear claims resulted in a grant of asylum, this would not justify 
disparate treatment under section 208(d)(2) of the INA, 8 U.S.C. 
1158(d)(2). With this provision, DHS seeks to ensure fidelity to INA 
208(d)(2), to ensure that all asylum applicants are treated equally, 
and to ensure consistent application of this policy across the 
Department's components. Congress purposefully imposed a minimum wait 
between the filing of an asylum application and the ability to obtain 
employment authorization. Congress did not provide an exception to 
obtaining employment authorization earlier for paroled asylum seekers. 
This final rule is consistent with congressional intent and inserts 
fairness into the process, so all asylum seekers are subject to the 
same standards and timeframes for obtaining an EAD.
---------------------------------------------------------------------------

    \143\ See Executive Office for Immigration Review Adjudication 
Statistics, Asylum Decision and Filing Rates in Cases Originating 
with a Credible Fear Claim, available at https://www.justice.gov/eoir/page/file/1062976/download.
    \144\ Id. This average equals the sum of the grant rates from 
FY15 through FY19 divided by five.
    \145\ Id. This average equals the sum of Percentage of No Asylum 
Application Filed from FY08 through FY19 divided by twelve.
---------------------------------------------------------------------------

    Finally, with regard to the concern over the potential costs to 
States, as discussed in more detail later, DHS acknowledges that this 
rule could result in lost tax revenue. The NPRM stated at 84 FR 62418, 
``There could also be a reduction in income tax transfers from 
employers and employees that could impact individual states and 
localities.'' DHS notes that the tax rates of states vary widely, and 
many states impose no income tax at all. It is also difficult to 
quantify income tax losses because individual tax situations vary 
widely. As a result, although DHS recognizes these impacts on states, 
DHS is unable to quantify the potential lost state taxes. DHS also 
realizes that the loss or deferment of income for asylum applicants 
could pose burdens to asylum applicants' support networks--which could 
involve state and local public service providers. See Section VI, 
Public Comments on Economic Analyses and Other Statutory and Regulatory 
Comments, and Section VII, Statutory and Regulatory Requirements below 
for additional discussion of the economic impact and analyses of this 
rule.
6. Miscellaneous Comments
    DHS received several other comments on the rule, some of which were 
out of scope, including arguments about the constitutionality of the 
Administration's position on sanctuary cities. DHS will not address 
these comments. There also were some additional broader comments about 
the rule that DHS addresses below:
a. Administrative Burdens and Agency Backlogs
    Comment: Several commenters argued that the rule would create 
additional burdens on USCIS overall and exacerbate existing backlogs. 
The commenters also believed that the rule would increase burdens on 
USCIS adjudicators by adding more requirements for asylum and EAD 
adjudications. Several commenters argued that with current agency 
backlogs (which they attributed either to agency mismanagement, 
eliminating the 30-day processing deadline, or decreased application 
receipts), it would be impossible for asylum seekers to ever obtain an 
EAD or to survive while waiting for their applications to be 
adjudicated. Other commenters argued that this rule would worsen agency 
backlogs and contribute to delays in processing of other immigration 
benefit types.
    Several commenters recommended alternatives to the rule to 
alleviate agency backlogs, including requesting additional funding from 
Congress, allowing concurrent filing of the asylum and EAD 
applications, improving EAD processing, increasing asylum and 
immigration court staff, improving technology and allowing electronic 
filing, and creating a separate processing channel for cases involving 
cancellation of removal.
    Response: DHS disagrees with the commenters' assertions that the 
current backlogs will make it impossible for asylum seekers to obtain 
employment authorization. Once an asylum applicant is granted asylum, 
the alien is immediately eligible for employment authorization as 
mandated by statute. See INA 208(c)(1)(B), 8 U.S.C. 1158(c)(1)(B). If 
an asylum application is still pending after 365 days, an alien can 
apply for employment authorization, and if eligible, receive an EAD.
    With regard to the asylum backlogs, DHS disagrees that the agency 
has been mismanaging its resources. DHS recognizes that there are a 
large number of cases pending in the affirmative asylum backlog. 
However, one of the reasons for the backlog is the crisis at the 
southern border and the need for DHS to divert resources from the 
affirmative asylum caseload to the credible and reasonable fear 
caseload. DHS believes that by deterring economic migrants and those 
who are not bona fide asylum seekers from seeking asylum in the United 
States, DHS will be able to reallocate it resources to the affirmative 
asylum caseload and, through the LIFO policy, maintain timely 
adjudications. Backlogs at USCIS and the years-long wait for hearings 
in the immigration courts have allowed aliens to remain in the United 
States for many years, obtain EADs, and ultimately gain equities for an 
immigration benefit, even when most of their asylum applications will 
be denied on their merits.\146\
---------------------------------------------------------------------------

    \146\ See, e.g., Doris Meissner, Faye Hipsman, and T. Alexander 
Aleinikoff, The U.S. Asylum System in Crisis; Charting a Way 
Forward, Migration Policy Institute (Sept. 2018) at pp. 4 and 9-12, 
for additional discussion on the impact of backlogs and delays in 
immigration proceedings.
---------------------------------------------------------------------------

    DHS also disagrees that this rule will worsen backlogs. USCIS 
adjudicators are well-trained and have numerous resources at their 
disposal for adjudicating cases. For instance, adjudicators already 
consider criminality, admissibility, and date of entry on a variety of 
forms. The requirements for the EAD adjudication set out in this rule 
are not new to USCIS adjudicators. Further, as this rule imposes more 
stringent requirements for employment authorization to disincentivize 
aliens who are economic migrants and who are not bona fide asylum 
applicants from filing asylum applications and exacerbating existing 
backlogs, DHS believes it will result in decreased filings of 
frivolous, fraudulent, or non-meritorious asylum applications, and 
relatedly, asylum-based EAD applications.
    Finally, DHS does appreciate some of the recommendations and 
alternatives offered by the commenters. DHS has

[[Page 38584]]

been hiring additional staff in the Asylum Division to address the 
large number of affirmative asylum applications and increase in 
credible and reasonable fear screenings due to the crisis at our 
southern border. In addition to increasing Asylum Division staff, this 
rule will build upon a carefully planned and implemented comprehensive 
backlog reduction plan and amends the (c)(8) EAD process so that those 
with bona fide asylum claims can be prioritized and extended the 
protections, including employment authorization, that the United States 
offers to aliens seeking refuge from persecution or torture. Further, 
USCIS is already engaged in a multi-year initiative to transform its 
current paper-based process to a fully electronic filing and 
adjudication system and the agency is steadily making more applications 
available for online filing. DHS cannot adopt the recommendation to 
allow concurrent filing. This would contravene the intent of this rule 
as well as the prior regulations, which were specifically designed to 
ensure there is a waiting period for applying for an EAD that follows 
the filing of asylum application and have mechanisms for addressing 
periods where applicants delay the adjudication of their 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, 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 timeline currently in 
place would also necessitate creation of a new clock system to track 
how long asylum applications were pending prior to approval. This would 
require tracking and potentially holding applications over a longer 
span of time, adding complexity.
b. Rationale for the Rule
    Comment: Several commenters argued that the changes made by the 
rule do not support the stated rationale for the rule (in other words, 
deterring frivolous, fraudulent, and non-meritorious filings). Other 
commenters doubted that the rule would address fraudulent filings. One 
commenter argued that contrary to DHS's characterization, the number of 
border apprehensions is not unprecedented, citing prior fiscal years 
where the numbers of apprehensions were significantly higher and when 
the number of border patrol agents were lower. Another commenter 
claimed that 90 percent of asylum seekers pass their credible fear 
interviews and pursue asylum despite its ``arduous, costly process.'' A 
few commenters argued that DHS's rationale for the rule was flawed 
because nearly one third of asylum applicants who passed a credible 
fear screening were successful in immigration court. Another commenter 
stated that one third of asylum claims succeed in substantive decisions 
and that the grant rate for those with legal representation should be 
used when considering what percent of applications are considered 
successful. Finally, one commenter argued that there were less 
``harmful'' alternatives to address fraud in the asylum process than 
the proposals in the rule, such as changing the I-589 to emphasize the 
existing legal consequences of filing frivolous or fraudulent 
applications for asylum and requiring biometrics collection for initial 
EAD applicants only and not for renewal applicants.
    Response: DHS disagrees that this rule fails to state a sufficient 
rationale or lacks data to support the changes made by this rule. The 
data illustrate a clear picture of a longstanding, critical and growing 
crisis in the U.S. asylum system and the need for strengthened 
laws.\147\ Border enforcement resources, detention space, and 
adjudication capacity are far outpaced by the numbers of aliens 
illegally entering the United States and claiming asylum each year. 
Historical data indicate that only about twenty percent of these 
applicants are eligible for asylum. This rule, standing alone, is not 
intended to solve every aspect of the crisis in the asylum system. It 
is one of several measures that the Administration is combining to 
mitigate the crisis and ensure the integrity of the immigration system 
and security of our communities.
---------------------------------------------------------------------------

    \147\ See Humanitarian and Security Crisis at Southern Border 
Reaches `Breaking Point' (2019, March 6), available at https://www.dhs.gov/news/2019/03/06/humanitarian-and-security-crisis-southern-border-reaches-breaking-point (``Every DHS Secretary since 
the Department's inception has sounded the alarm about our unsecured 
border and its consequences. The American people and our law 
enforcement personnel rightfully demand effective border security: 
building the wall, strengthening our laws, and giving the men and 
women serving on the front lines the tools and resources they need 
to keep Americans safe. To that end, this Department pledges our 
unwavering resolve to confronting present and ever-evolving future 
threats to our national security at our Southwest Border.'') 
(emphasis added).
---------------------------------------------------------------------------

    According to CBP data from FY 2019, the level of aliens unlawfully 
attempting to cross the Southern border reached a twelve-year high and 
nearly doubled from the same period in the previous fiscal year.\148\ 
This increase demands that DHS respond to this crisis and strengthen 
and enforce our immigration laws. According to one DOJ-EOIR snapshot 
measuring eleven years of data, of the approximately 81% of USCIS 
credible fear referrals to IJs, only 17% of these aliens are granted 
asylum by an IJ.\149\ While approximately one third of adjudicated 
asylum applications stemming from a positive credible fear finding are 
granted, the commenter fails to acknowledge that about forty five 
percent of aliens with a positive credible fear finding fail to pursue 
their asylum claims and are therefore never adjudicated.
---------------------------------------------------------------------------

    \148\ See Humanitarian and Security Crisis at Southern Border 
Reaches `Breaking Point' (2019, March 6), available at https://www.dhs.gov/news/2019/03/06/humanitarian-and-security-crisis-southern-border-reaches-breaking-point.
    \149\ See Adjudication Statistics, Credible Fear and Asylum 
Process: Fiscal Year (FY) 2008-FY 2019 (Oct. 23, 2019), available at 
https://www.justice.gov/eoir/file/1216991/download.
---------------------------------------------------------------------------

    According to another DOJ-EOIR snapshot, in FY 2019, DOJ-EOIR 
granted only 15.25 percent of asylum applications filed by aliens found 
to have a credible fear.\150\ Over the past five years, the average 
DOJ-EOIR asylum grant rate of cases originating with a credible fear 
claim is only 14.25 percent.\151\ This rule is designed to reduce the 
number of aliens who leave their home countries seeking economic 
opportunities in the United States by gaming the asylum system and its 
attendant employment authorization. DHS does not dispute that some 
applicants may have filed for asylum in good faith, but will still have 
their application denied. Nonetheless, by implementing this rule along 
with other measures, the integrity of the asylum system will be 
bolstered.
---------------------------------------------------------------------------

    \150\ See Executive Office for Immigration Review Adjudication 
Statistics, Asylum Decision and Filing Rates in Cases Originating 
with a Credible Fear Claim, available at https://www.justice.gov/eoir/page/file/1062976/download.
    \151\ Id. This average equals the sum of the grant rates from 
FY15 through FY19 divided by five.
---------------------------------------------------------------------------

    DHS remains committed to finding options to curb abuse of the 
asylum system while prioritizing bona fide asylum seekers. DHS has 
considered alternatives, including taking no action, rescinding its 
regulation conferring employment authorization to all asylum seekers, 
hiring more staff, and accepting forms electronically. In addition to 
this rulemaking, DHS has undertaken a range of initiatives to address 
the asylum adjudication backlog and mitigate its consequences for bona 
fide asylum seekers, agency operations, and the integrity of the asylum 
system.

[[Page 38585]]

These efforts include: (1) Revised scheduling priorities including 
changing from First in First out (``FIFO'') order processing to LIFO; 
(2) staffing increases and retention initiatives; (3) acquiring new 
asylum division facilities; (4) assigning refugee officers to the 
Asylum Division; (5) conducting remote screenings; and (6) launching a 
pilot program for applicants seeking a route to immigration court to 
request cancellation of removal.\152\ USCIS already accepts several 
forms electronically, and is considering steps to accept the Form I-765 
electronically in the future. These efforts are a top priority for the 
agency.
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    \152\ Annual Report 2018 Citizenship and Immigration Services 
Ombudsman June 28, 2018 (page 44) https://www.dhs.gov/sites/default/files/publications/cisomb/cisomb_2018-annual-report-to-congress.pdf.
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    DHS disagrees that a viable alternative to this rule is to reduce 
immigration enforcement. Reducing enforcement would add to the pull 
factors incentivizing abuse of the asylum system and exacerbate the 
asylum backlog rather than reduce it. The asylum adjudication backlog 
coupled with the previous (c)(8) EAD regulations' very low eligibility 
threshold with nearly unlimited renewal opportunity already created 
significant pull factor incentivizing abuse of the overburdened asylum 
system.\153\ DHS does not agree that simply modifying the existing Form 
I-589 to emphasize the existing legal consequences of filing frivolous 
or fraudulent applications constitutes a sufficient deterrent to this 
practice and disagrees that this is a viable alternative to the rule.
---------------------------------------------------------------------------

    \153\ Id., at 43-44.
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    DHS seeks to balance deterrence of those abusing the asylum process 
for economic purposes and providing more timely protection to those who 
merit such protection, which includes immediate and automatic 
employment authorization when the asylum application is granted. DHS 
believes the amendments in this rule strike a greater balance between 
these two interests.
c. Frivolous, Fraudulent, and Non-Meritorious Filings
    Comment: Some commenters argued that the rule would not deter 
frivolous, fraudulent, or non-meritorious filings and that DHS had not 
provided any evidence or data showing fraudulent intent of asylum 
seekers to support the rationale. One commenter argued that DHS was 
conflating fraudulent applications with non-meritorious applications 
and noted that asylum applications can be denied for many reasons that 
are unrelated to the merits of the asylum claim.
    Several commenters also stated that even if there are cases that 
are not ultimately successful, it does not necessarily mean that the 
filings were frivolous. One commenter recommended that DHS define the 
terms ``frivolous'' and ``fraud'' and another commenter argued that it 
is unclear what constitutes a ``non-meritorious'' claims and whether 
non-meritorious claims are nothing more than frivolous and fraudulent 
applications. A number of commenters attributed the failure of many 
asylum cases to lack of legal counsel, and cited data showing that 
represented applicants succeeded between 2-5 times the rate of their 
pro se peers. The commenters argued that DHS would not consider denied 
asylum cases ``frivolous'' if asylum seekers were provided legal 
counsel and DHS established more uniform standards.
    Response: DHS agrees that not every case which is ultimately denied 
by an asylum officer or the immigration court is frivolous or 
fraudulent. However, DHS is promulgating this rule to also address 
cases where there is fraud and, to reduce the number of non-meritorious 
asylum applications. While an alien may have filed an asylum 
application in good faith, it does not mean that the application had 
merit, especially when the alien clearly does not meet any of the 
grounds for eligibility for asylum. As noted earlier, fleeing 
generalized violence or poverty in one's home country does not make an 
alien eligible for asylum. DHS seeks to reduce the incentive for aliens 
to file asylum applications simply to gain employment, have economic 
stability, and to avoid the generalized violence that is occurring in 
their country of origin or nationality.
    DHS is not conflating fraudulent applications with non-meritorious 
applications. Fraud requires that a person knowingly made a false 
representation of a material fact with the intent to deceive the other 
party.\154\ Fraud differs from non-meritorious applications; an alien 
who has a non-meritorious application may not have a legitimate asylum 
claim, but does not knowingly make a false representation of material 
facts to USCIS. The surge in border crossings and asylum claims has 
placed a strain on the nation's immigration system and DHS must take 
action to deter those who are not legitimate asylum seekers. DHS 
strongly believes that one of the ways to deter fraudulent, frivolous, 
and non-meritorious asylum claims is to adjust the eligibility 
requirements for an employment authorization for those with pending 
asylum applications and who are denied asylum. DHS agrees that an 
asylum application may be denied for many reasons unrelated to the 
merits of the claim, such as being barred from receiving asylum based 
on criminal grounds or the filing outside of the one year filing 
window. DHS intends to remove the incentives for aliens who are not 
legitimate asylum seekers and who come to the United States to exploit 
the system.
---------------------------------------------------------------------------

    \154\ See Matter of Tijam, 22 I&N Dec. 408, 424 (BIA 1998) 
(addressing excludability based on fraud and willful 
misrepresentation).
---------------------------------------------------------------------------

    It is the asylum seeker's burden to establish that he or she has 
met the eligibility requirements for asylum and that is dependent on 
the specific circumstances and facts in the individual asylum seeker's 
case. In addition, asylum seekers are advised of their right to counsel 
in the affirmative asylum process. Aliens are provided a list of legal 
services in their area during the reasonable or credible fear 
processes. An alien is not required to have an attorney to file an EAD 
application or asylum application. DHS believes that aliens have 
numerous opportunities to obtain legal counsel at cost, low cost, or no 
cost.\155\
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    \155\ See e.g., EOIR's list of pro bono legal service providers, 
available at https://www.justice.gov/eoir/list-pro-bono-legal-service-providers.
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    Finally, DHS has already provided a definition for a frivolous 
application under 8 CFR 208.20, which defines a frivolous application 
as, ``an asylum application is frivolous if any of its material 
elements is deliberately fabricated.'' \156\ In addition, Congress has 
provided a specific ground of inadmissibility to address when an alien 
commits fraud for the purposes of obtaining a benefit under the INA 
\157\ and USCIS adjudicators are well trained on how to make 
admissibility and removal determinations where there is a concern about 
fraud in the application or during the asylum process. DHS has existing 
definitions that clearly explain fraud in the context of immigration 
adjudications. Inadmissibility based on fraud requires a finding that a 
person knowingly made a false representation of a material fact with 
the intent to deceive the other party.\158\ Further, the Form I-589 
instructions indicate that if an alien knowingly makes a frivolous 
application for asylum, they may be

[[Page 38586]]

permanently ineligible for any benefits under the INA.\159\
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    \156\ 8 CFR 208.20.
    \157\ INA 212(a)(6)(C)(i).
    \158\ See Matter of Tijam, 22 I&N Dec. 408, 424 (BIA 1998).
    \159\ See INA 208(d)(6); https://www.uscis.gov/i-589.
---------------------------------------------------------------------------

    Asylum applications that are non-fraudulent and non-frivolous will 
still need be evaluated on the merits of the case if they are eligible 
for the immigration benefit as defined in 8 CFR 208. Nothing in this 
rule changes eligibility for asylum and an application is still 
evaluated based on the merits. The purpose of this rule is to deter 
frivolous and fraudulent asylum claims, in addition to deter those who 
are not eligible for asylum and have the purpose of only obtaining 
employment authorization.
7. Effective Date and Retroactive Application
    Comment: Several commenters expressed concern that the proposal 
would apply to any employment authorization applications pending on the 
effective date of this Final Rule. One commenter argued that 
rulemakings generally cannot have a retroactive effect. One commenter 
stated that if DHS imposed the requirements of the rule retroactively 
it would be unconstitutional. Another commenter opposed applying the 
rule to aliens with pending asylum applications who, in reliance on the 
prior regulations, made ``major'' life decisions, such as finding 
employment and ``buil[ding] their social lives'' in the United States. 
One commenter argued that applying the one-year filing EAD provision to 
aliens with pending asylum applications could result in loss of 
employment authorization, especially if the one-year filing bar would 
not be determined until the asylum application is adjudicated by an 
asylum officer or IJ. Another commenter argued that applying the 
biometrics requirement to aliens with (c)(8) EAD applications pending 
on the effective date of the rule would be impermissible under the APA.
    Response: DHS initially proposed to apply changes made by this rule 
only to initial and renewal applications for employment authorization 
under 8 CFR 274a.12(c)(8) and (c)(11) filed on or after the effective 
date of the final rule, with two exceptions. DHS proposed to apply the 
provisions relating to criminal offenses and failure to file the asylum 
application within one year of the alien's last entry to the United 
States to initial and renewal (c)(8) EAD applications pending on the 
effective date of this rule and to require that these aliens appear at 
an ASC for biometrics collection.
    DHS has carefully considered the comments about applying the rule 
to pending EAD applications, and has determined it will not apply any 
provisions of this rule to applications for employment authorization 
under 8 CFR 274a.12(c)(8) and (c)(11) pending with USCIS on the 
effective date of the final rule. Although DHS has an interest in 
immediately applying the criminal and one-year filing provisions, it is 
persuaded by the commenters' concerns about applying the provisions to 
pending (c)(8) EAD applications, and has determined that applying only 
portions of this rule to the population of pending (c)(8) EAD 
applicants may cause confusion externally and internally by 
implementing a two-tiered adjudication system. Accordingly, the 
provisions of this rule will apply only to (c)(8) (initial and renewal) 
and (c)(11) EAD applications that are postmarked (or if applicable, 
electronically submitted) on or after the effective date; applications 
that were postmarked before the effective date and accepted by USCIS 
pursuant to 8 CFR 103.2(a)(1) and (a)(2), and are pending on the 
effective date will be adjudicated under the respective prior 
regulations. As the criminal provisions will not be applied to aliens 
with EAD applications pending on the effective date of this rule, DHS 
will not require these aliens with EAD applications pending on the 
effective date of this Final Rule to appear for biometrics collection 
associated with the EAD. Aliens who file initial or renewal (c)(8) EAD 
applications on or after the effective date will be required to submit 
biometrics consistent with this rule.
    Additionally, in recognition that the illegal-entry provision is 
designed to deter illegal entry and reduce its attendant risks and 
costs, DHS has determined that it will only apply the illegal-entry 
provision to aliens who enter or attempt to enter the United States 
illegally on or after the effective date of this Final Rule. Similarly, 
DHS will only apply the one-year filing bar to aliens who file their 
asylum applications on or after the effective date, and filed the 
application after the one-year filing deadline. Further, DHS will only 
apply the criminal bars for particularly serious crimes and serious 
non-political crimes where the conviction or offense triggering the bar 
occurred on or after the effective date of the rule. The criminal bar 
described in 8 CFR 208.7(a)(1)(iii)(D), which refers to 8 CFR 
208.13(c), will apply where the conviction or offense occurred on or 
after the effective date of the Procedures for Asylum and Bars to 
Asylum Eligibility rulemaking, if finalized.\160\ DHS will apply the 
aggravated felony bar to any conviction regardless of the conviction 
date.
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    \160\ See Proposed rule: Procedures for Asylum and Bars to 
Asylum Eligibility, 84 FR 69640 (Dec. 19, 2019). Under that proposed 
rule, aliens are only subject to the new criminal bars based on 
convictions or criminal behavior that occur on or after the 
effective date of that rule. Because 8 CFR 208.7(a)(1)(iii)(D) only 
applies to aliens who are ``subject to a mandatory bar to asylum'' 
under 8 CFR 208.13(c), those aliens with disqualifying convictions 
or criminal behavior that takes place after the effective date of 
the Asylum Bars rule, if finalized, will be barred from receiving a 
(c)(8) EAD.
---------------------------------------------------------------------------

    DHS acknowledges that this rule will impact some aliens who filed 
asylum applications prior to the effective date of this rule, and that 
these applicants may have relied to some degree on the prior 
regulations governing (c)(8) employment authorization. However, DHS 
disagrees that this reliance renders this rulemaking impermissibly 
retroactive. Many of these applicants will remain eligible for 
employment authorization under the new rule, though some may be subject 
to a longer waiting period depending on when they filed their asylum 
application. Asylum applicants who are already employment authorized on 
the effective date will remain employment authorized until the 
expiration date on their EAD, unless the authorization is terminated or 
revoked on grounds noted in the prior regulations.
    Employment authorization under section 208(d)(2) of the INA, 8 
U.S.C. 1158(d)(2), is an ancillary benefit conferred at the discretion 
of the Secretary, a benefit which Congress determined an asylum 
applicant ``is not entitled to.'' Further, DHS has authorized this 
discretionary benefit by regulation, and it is therefore subject to 
amendment or rescission by the agency at any time through subsequent 
rulemaking. Under the previous regulatory framework and under this 
final rule, asylum applicants requesting employment authorization are 
required to submit regular renewal applications, which are subject to 
de novo eligibility review each time they seek to renew. As noted 
above, DHS has long sought to separate the asylum process from 
employment authorization in order to address abuses of the asylum 
system for economic benefit, and it is apparent that Congress concurred 
with the agency's separation of the two when it adopted DHS' regulation 
in the INA.
    The reliance interests raised by the commenters do not outweigh the 
government's compelling interests in promulgating this rule. It is not 
reasonable to assume DHS would never

[[Page 38587]]

alter the eligibility criteria for a discretionary EAD. It is not 
reasonable to presume, as one commenter suggested, that an alien would 
have based major life decisions on employment or engaging in ``social 
lives'' on an assumption or reliance that DHS would not amend its EAD 
regulations in the future. Further, it is not reasonable to presume 
that an alien would have refrained from violating immigration laws 
requiring lawful entry or a timely-filed asylum application, or 
criminal laws proscribing public safety offenses, if he had known it 
would later render him ineligible for an ancillary, discretionary 
benefit. Asylum itself is discretionary, and depending on the 
circumstances, the same violations of immigration and criminal law 
rendering a (c)(8) EAD applicant ineligible could render him ineligible 
for asylum. An asylum applicant hoping to maintain eligibility for 
asylum would presumably conduct himself in a way that preserved his 
eligibility for both asylum and ancillary employment authorization 
under this rule. Further, limiting the application of this rule to 
aliens who filed their asylum applications prior to the effective date 
would result in a two-tiered, parallel adjudication system, creating 
confusion. Accordingly, the interests raised by the commenters do not 
outweigh the government interests expressed in this rulemaking, and its 
application to aliens with asylum applications pending on the effective 
date of this final rule does not amount to impermissible retroactivity.
    DHS disagrees with the claim that this rule violates the U.S. 
Constitution. The Constitution's ex post facto clause prohibits changes 
to the legal consequences of actions that were committed before the 
enactment of the law. The ex post facto clause would generally only 
apply to laws that impose criminal penalties. Although EAD eligibility 
determinations are not criminal penalties, and so are generally not 
subject to the ex post facto clause, this rule, in any event, is not 
impermissibly retroactive in application, as noted in the immediately 
preceding response.

VI. Public Comments on Economic Analysis and Other Statutory and 
Regulatory Requirements

    Several commenters argued that DHS's economic analysis was 
deficient and that DHS should withdraw the rule until it completed a 
more thorough economic analysis of the impact of the rule. Others 
argued that the economic analysis underestimated the costs of the rule 
of the significant impact on the economy especially if those who were 
working in specialized areas or had professional skills in high demand 
lost their ability to work. Some commenters argued that DHS provided no 
statistics to actually quantify the problem the rule was trying to 
address re: fraud in the asylum process. The commenters also argued 
that DHS provided no evidence or statistics to support the claim that 
the rule would reduce the incentives of aliens to file frivolous, 
fraudulent, or otherwise non-meritorious claims. Some commenters noted 
that it failed to take into account state income taxes. Another 
commenter said that it failed to take into account how the rule 
protects U.S. workers.
    Many commenters stated that DHS failed to take into consideration 
the impact and the costs of the rule on (1) the asylum applicants and 
their families, (2) state and local governments, (3) U.S. employers and 
businesses, (3) U.S. taxpayers, (4) faith-based organizations, (5) 
social services organizations, (6) USCIS applicants and petitioners, 
(7) the organizational impact of the agency itself in terms of 
financial, resource, and workload burdens. One commenter indicated that 
the rule failed to take into account the significant hardship it placed 
on nonprofit organizations, private attorneys and law firms because of 
the rule increases the complexity of asylum EAD adjudications and adds 
uncertainty to the asylum and EAD processes overall.
    One commenter said that it forces USCIS applicants and petitioners 
to pay more in increased fees for less services. Many commenters 
discuss the impact the rule would have on the national, state, and 
local economics, arguing that it threatened the growth of businesses 
and productivity. Some commenters stated that the rule failed to 
address the negative impact on state tax revenue streams and failed to 
calculate loss to states especially in certain sectors. The commenters 
also indicated that it failed to take into account the increased costs 
to states such as healthcare costs. Some commenters argued that the 
rule would cause losses to companies and reduce tax transfers to the 
government. One commenter said that it would increase costs to the 
states, especially if paroled aliens were delayed in employment 
authorization, because they would have to rely on state benefits for a 
longer period of time. It would be a detriment to society and result in 
a loss of workforce. The commenters stated that it would threaten 
business growth and local economies especially in light of the record 
low national unemployment rate and the more than 1 million plus jobs 
that were vacant that did not have enough workers to fill them. One 
commenter argued that USCIS is mismanaging its resources as a fee-
funded agency and if this rule was an attempt to fix this mismanagement 
it failed.
    Several commenters said that DHS failed to do a proper analysis 
under the Executive Orders, Regulatory Flexibility Act and Federalism 
Assessment. One commenter said that the rule failed to take into 
account the increased costs to asylum seekers even after they were 
granted asylum because of how long it may take for the asylum seeker to 
obtain work.
    Several commenters said that the rule failed to address the recent 
Presidential policies and costs and impact of such policies such as the 
Proclamation 9844 and instead just relied on data from prior years. The 
commenters argued that the rule disregarded the cumulative effect that 
policies like MPP and metering had on the asylum system overall. Some 
commenters argued that DHS failed to consider other alternatives and 
ways to gain efficiencies such as through electronic filing, restoring 
policies such as barring re-adjudication of original petition 
decisions, restoring the ability of aliens to get an interim EAD within 
90 days, ending the diversion of asylum officers to other tasks, hiring 
more asylum officers, and increasing asylum interviews each month.
    One commenter argued that DHS failed to do a correct impact 
assessment because it only assessed the impact for a quarter of the 
population of EAD holders. The commenter stated that DHS underestimated 
the actual population that would be affected. Another commenter said 
that it failed to deduct the UAC filing numbers and overestimated the 
cost of the rule. Another commenter said that it failed to take into 
account the burden on UACs in terms of their ability to access non-work 
resources like obtaining social security numbers and access to long-
term educational opportunities.
    Finally, some commenters said that the rule failed to take into 
account the cost to employers on loss of workforce and hiring new 
employees because of the retroactive application of the rule to aliens 
who were already work authorized. DHS addresses these comments below.

A. Impacts and Benefits (E.O. 12866 and 13563)

1. Assumptions
    Approximately 20 submissions provided input on the assumptions and

[[Page 38588]]

methodology utilized for the rule's regulatory impact assessment.
    Comments: A commenter claimed that the rule makes unfounded 
assumptions. First, when calculating the savings and costs, the 
analysis is said to have relied on the number of asylum application and 
EAD filings, but did not deduct the number of filings from 
unaccompanied minors, the numbers of whom have surged in recent years. 
The commenter said the rule specifically exempts UACs, but, by not 
deducting the UAC population from the number of asylum applications 
filed historically, DHS overestimated the savings and deterrent effect. 
Furthermore, the commenter said DHS assumed that aliens file for 
employment authorization only for the purpose of working, which is 
``demonstrably false.'' For example, employment authorization is 
required in order to be issued a social security number (which is in 
turn needed to obtain a driver's license).
    Response: DHS appreciates the submitted input. In the analysis, it 
was not possible to parse out which EADs linked to asylum claims 
represented UACs. However, any adjustment for UACs, if it were 
possible, would reduce the quantified costs of the rule. Additionally, 
DHS recognizes the reality that some who obtain EADs do so for purposes 
of documentation. However, DHS also does not have information about the 
number of aliens that file for employment authorization but do not 
obtain employment. Although USCIS issues EADs, it does not collect 
information about the employment of aliens with EADs. Accordingly, DHS 
conservatively assumes that all that seek and obtain EADs would enter 
the labor market and find employment. To the extent that the number of 
employed aliens is overstated, it would reduce the quantified impacts 
of the rule.
2. Adequacy of Cost/Impact Analysis
    Comments: A submission said the rule violates Executive Order 12866 
because DHS did not assess all the costs associated with the rule or 
provide an analysis of the available alternatives. Another said DHS has 
not considered all of the costs and benefits involved in making this 
regulatory change, and recommend that DHS abandon the proposed rule and 
keep in place the current regulations governing the issuance of EADs to 
asylum applicants.
    Another commenter stated ``nowhere to be found'' is data about the 
number of legitimate and illegitimate asylum seekers, as well as the 
costs and benefits associated with implementation of the proposed rule 
on either group. Another commenter said DHS ``admits'' that it does not 
have the necessary data to fully quantify the rule's impacts, 
concluding that DHS cannot justify the rule and its substantial harms 
without fully considering and quantifying the impact of the proposed 
provisions, which it has failed to do here. The commenter further 
claimed that DHS ``does not know'' how many aliens will be subject to 
several of the proposed provisions, because DHS does not have the data 
necessary to quantify the impacts of these provisions, including 
barring asylum applicants with certain criminal history, barring those 
who did not enter at a U.S. port of entry, and barring those who did 
not file for asylum within one year of their last arrival to the United 
States. As such, DHS cannot quantify the lost earnings of asylum 
seekers or lost tax revenue for cities, states, and the federal 
government.
    A commenter said DHS does not provide a breakdown of the affected 
population and how it determined who would be impacted by the rule, 
asserting that DHS has not quantified impacts with respect to the full 
pool of affected asylum seekers. Another argued that the analysis 
understated the number of applicants who would be impacted by the rule 
and failed to consider other impacts including loss of medical care and 
other necessary services. A commenter said DHS's method of calculating 
costs dramatically underestimates the costs to asylum seekers because 
DHS could not obtain data for a large portion of affected asylum 
seekers. Also, the commenter said DHS calculated losses based on the 
assumption that asylum seekers would receive employment authorization 
in 151 days under the rule, relying on average processing times from 
prior years, but this calculation is based on a flawed premise given 
that the proposed rule would significantly add to current processing 
times. In addition, the commenter said DHS does not attempt to estimate 
how many asylum seekers would be prevented from obtaining employment 
authorization due to the categorical bars. In summary, the commenter 
imparted that DHS significantly underestimates the losses even to those 
asylum seekers it identifies as adversely affected by the proposed 
rule.
    Another commenter said the only projected costs of the proposed 
rule are based on an underestimation of the number of asylum applicants 
who would be impacted. Specifically, the commenter said DHS's 
calculation fails to estimate (1) the number of initial asylum 
applicants who will be impacted by elimination of employment 
authorization for asylum applicants who do not arrive at ports of 
entry, and (2) the number of asylum applicants who would be barred from 
employment authorization on the basis of past criminal convictions. 
This commenter also said DHS calculated the lost wages to asylum 
seekers and lost contributions to Social Security and Medicare by 
analyzing the impact of only about a quarter of EAD holders that the 
agency determined would be affected, and a quarter of EAD holders is 
likely an underestimation of the impacted population. In addition, the 
commenter said the estimated lost earnings is likely a substantial 
underestimate given the analysis's exclusion of all defensive cases. 
Lastly, the commenter said DHS fails to estimate how the proposed rule 
would impact the renewal of employment authorization for many asylum 
applicants who have also previously been granted EADs but would no 
longer be eligible for an EAD renewal.
    A commenter said DHS has failed to consider reliance interests, 
asserting that it fails to calculate or consider the number of 
currently working asylum seekers who will be unable to continue 
working, the length of time they have been in the workforce, or any of 
the impacts on this group. The commenter also said the rule failed to 
consider the serious reliance interests related to asylum seekers who 
remain eligible for employment authorization and are able to renew but 
with a shorter period for employment authorization.
    A commenter argued that the analysis underestimated the impacts of 
the proposal by understating the wages of asylum seekers, comparing the 
experience and wages of its own program participants to the wages 
relied on. Citing data to support their argument, a commenter 
challenged the wage rates used to calculate the lower and upper bound 
of the rule's financial impact, stating that some asylum seekers earn 
above-average salaries after securing an EAD. This commenter also said 
$12/hour should be the minimum wage relied on to calculate the lower 
bound of lost compensation to asylum seekers. Referencing the 365-day 
waiting period specifically, a commenter said while the rule accounts 
for the salary and wage loss of those waiting for a decision, amounting 
to nearly $542.7 million, it does not account for the promotions or 
raises aliens will miss out on due to lack of employment. The commenter 
cited a study showing that delaying asylum seeker's employment by seven 
months had persistent effects, and those who started work earlier had 
about a 27 percent higher income.

[[Page 38589]]

    A commenter claimed that the proposal underestimated its impacts to 
employers, stating that most asylum seekers in its program are skilled 
workers with STEM and healthcare backgrounds, industries in the U.S. 
with high demand for additional labor.
    Response: DHS disagrees that the rule does not comply with E.O. 
12866 because it failed to adequately assess the costs associated with 
the rule or discuss available alternatives. Although DHS was not able 
to quantify all of the impacts of the rule, DHS has considered the 
major categories of impacts. DHS summarized in Table 5 of the NPRM at 
84 FR 62396, each of the provisions of the rule, the affected 
populations, and the estimated impacts. This table illustrates the 
provisions for which it is not possible to provide a quantified 
estimated of the affected population, or a quantified estimate of the 
impacts. DHS assessed the costs and benefits to the extent possible 
given data availability, and discussed qualitatively those that could 
not be quantified, and included a reasoned discussion about why they 
could not be quantified. DHS considered qualitative benefits at 84 FR 
62417, such as reducing incentives to files frivolous, fraudulent, or 
otherwise non-meritorious asylum applications thereby prioritizing 
aliens with bona fide asylum claims. At 84 FR 62398, DHS provided a 
separate description of possible distributional effects (e.g. 
transfers) resulting from the regulation. Finally, DHS discussed steps 
USCIS has undertaken to address the asylum backlog and mitigate its 
consequences for asylum seekers, agency operations, and the integrity 
of the asylum system, as alternatives to this rule, at 84 FR 62393. DHS 
appreciates commenters' input on the types of costs or other impacts 
that were not captured in the analysis, and has incorporated many into 
the analysis for this final rule.
    As it relates to the concern regarding the understatement of costs, 
although DHS agrees that the quantified impacts are likely an 
underestimate of the total, the analysis also considers additional 
unquantified impacts of the rule. Indeed, DHS has an entire section of 
the analysis, beginning at 84 FR 62416, devoted to discussing impacts 
of the rule that DHS is unable to quantify. Specifically, DHS 
acknowledges that some of the most significant unquantified impacts of 
the rule include those from eliminating employment authorization for 
applicants who do not arrive at ports of entry, eliminating employment 
authorization on the basis of criminal convictions, and terminating 
employment authorization early for asylum applications denied/dismissed 
by an IJ. Please refer to Table 1 in this final rule for a summary of 
the unquantified impacts of the rule. DHS also acknowledges that 
certain quantified estimates may be overstated because, due to data 
limitations, DHS was only able to provide a maximum estimate of the 
potential impacts. These are also identified in the summary provided in 
Table 1 of this final rule.
    Although there is nothing in this rule that specifically will drive 
the EAD processing times significantly higher, on average, it is 
possible that some applications could take longer to process, as some 
of the conditions in the rule could require more resources and add 
complexity to adjudicative review. There is potential for delay with 
the criminal bars. The I-765 form instructions require the alien to 
list all arrests and convictions, to explain those events, and provide 
certified copies of police and court documents. If the alien fails to 
provide sufficient information or documents relating to his or her 
criminal activity with the (c)(8) EAD application, the evaluation and 
assessment of biometrics that return criminal history information to 
determine ineligibility may require more resources and delays if USCIS 
must issue an RFE to complete the adjudication. Notably, DHS amended 
the criminal bars in the final rule, which no longer include many of 
the offenses and arrests about which many of the commenters expressed 
concern.
    With respect to the concern that the analysis excluded all 
defensive cases and only analyzed the impacts of the 365-day wait 
period for a quarter of affected EADs, DHS disagrees. DHS adjudicates 
all EADs for applicants with pending asylum claims and therefore, DHS 
has data about the number of EADs for affirmative and defensive cases 
potentially impacted by this rule. This allows DHS to estimate the 
impacts to defensive cases for certain provisions, such as the proposed 
365-day wait period. See analysis of ``the residual population'' at 84 
FR 62410. However, DHS does not have data on when defensive asylum 
cases are adjudicated, and so DHS is unable to estimate the impacts to 
defensive cases for other provisions, such as terminating EADs when an 
asylum application is denied by an IJ. However, DHS again stresses that 
it has considered qualitatively any impacts for which DHS is unable to 
quantify the impacts of the rule for defensive cases.
    As it relates specifically to the concern about the costs and 
benefits to legitimate and illegitimate asylum seekers, the analysis 
covers the cost to applicants that will have an asylum application 
approved and applicants that will have an asylum application denied. 
Where the impacts differ depending on an approved or denied asylum 
application (e.g., the provisions for which an EAD would be terminated 
early for an alien denied asylum), DHS has assessed the costs specific 
to the impacted group.
    Regarding the comment that DHS failed to consider reliance 
interests for currently working asylum seekers who will be unable to 
continue working under this rule, DHS disagrees. Although DHS was 
unable to quantify some of these impacts because it does not have data 
on the length of time that asylum seekers have been working or might 
continue to work had it not been for this rule, DHS did qualitatively 
consider the impacts of the rule on asylum seekers whose EAD renewal 
would be subject to changes made by this rule. See the discussion of 
unquantified impacts in the NPRM beginning at 84 FR 62416.
    In terms of the wage rates relied upon, data are not directly 
available on the earnings of asylum seekers and, faced with 
uncertainty, DHS made reasonable estimates of the bounds. DHS 
frequently relies upon the prevailing minimum wage as a lower bound for 
new labor force entrants and it is consistent with other current DHS 
rulemakings. DHS agrees that some asylum seekers with EADs earn more 
than the national average, just as some could also earn less than the 
prevailing minimum wage. However, these possibilities in no way 
undermine the wage range we utilize as these bounds simply represent 
estimates of the range for this population's average wage.
    In response to the comment regarding skilled workers in STEM and 
healthcare, it is noted that the information applies to an advocacy 
organization that assists asylum seekers in professional career 
development. While we do not question the validity of the data 
submitted, it is not clear that the data relevant to 300 aliens under 
the organization's purview can be extrapolated to the much larger 
population under the rule. As mentioned above, our impact assessment 
does not rule out the possibility that some asylum seekers with EADs 
earn high salaries or those above the national average, whether at the 
average STEM level or otherwise. The wage bounds and incumbent range 
are meant to capture average earnings levels.
    Regarding the rule's effect on earnings over time, a commenter 
cited a study by the Immigration Policy Lab at Stanford University that 
found a seven-month

[[Page 38590]]

delay in work authorization for German asylum seekers dragged down 
their economic outcomes for a decade after. DHS reviewed the paper 
cited and its methodology and findings. We do not rule out the 
possibility that there could be some persistence effects for delayed 
labor force entrants that could impact their integration into the 
workforce and income. DHS agrees that earnings generally rise over 
time, meaning that the earnings at the end of an EADs validity period 
could be higher than at the time of issuance. However, it is noted that 
the paper focused on a particular European labor market. It is not 
clear that the findings from this study on German asylum applicants can 
be linearly extrapolated to the population regulated by this 
rulemaking. Further, we note that by relying on a range for the wage 
the asylum applicants might earn, any increases in wages that would 
have been earned had the asylum applicants been employment authorized 
sooner would be captured within the range unless the true average wage 
is at the higher end of the range used. We appreciate the input and 
include it qualitatively in the analysis herein.
    DHS appreciates the commenters concerns regarding logistical 
burdens to employers, including small businesses, due to the provision 
to end some EADs early. However, this rule making is not imposing new 
obligations or conditions on employers, so DHS disagrees that this rule 
directly impacts small entities or imposes costs that DHS did not 
consider. As it relates to statistics to quantify fraud in the asylum 
process, DHS does not track cases that are frivolous, or fraudulent, or 
otherwise non-meritorious claims. However, we note that the relatively 
high rate of EOIR denials is reflective of the problem.
3. Cost Analysis Should Account for Other Asylum Initiatives
    Comments: A commenter stated that DHS has recently issued other 
rule changes related to asylum and this proposed rule threatens to 
further limit avenues of relief for asylum seekers with valid claims, 
particularly in conjunction with recent administration policies such as 
the Migrant Protection Protocols. The commenter said DHS must conduct a 
full cost analysis of the compounded impact of these separate rules and 
policies. Similarly, a commenter stated that, through a combination of 
interim final rules, proposed regulations, and policy announcements, 
the Administration has restricted access to U.S. asylum protection, or 
even entrance to the United States to make such a request. As a result, 
the commenter said one would expect far fewer applications for 
employment authorization by asylum seekers, but the proposed rule 
curiously disregards the cumulative effect of these policies while 
asserting the necessity of the proposed reforms. The commenter said the 
rule must be withdrawn and an analysis of the anticipated effects of 
these other policies must be incorporated into the baseline analysis.
    Response: DHS has assessed the costs and benefits of this rule with 
respect to its specific provisions. When examining the impacts of this 
rule, DHS considered the impacts of regulations and policies in effect 
when establishing the baseline used for the rule's analysis. For 
example, DHS' analysis controlled for the 2018 change from FIFO to 
LIFO. For other regulations that are proposed, but not yet implemented, 
the analysis acknowledges the potential interactions with other 
regulatory efforts, when possible. For example, the NPRM acknowledged 
DHS' rule regarding Removal of 30-Day Processing Provision for Asylum 
Applicant-Related Form I-765 Employment Authorization Applications. 
However, incorporating such interactions in the impact assessments for 
this rule would be speculative as it assumes these rules will be 
finalized, and without change. While DHS agrees that a reduction in 
asylum claims caused by other asylum initiatives would, by definition 
reduce asylum-linked EAD filings, such a reduction would not 
necessarily be driven by the current rule and could falsely 
underestimate the impacts of this rule.
4. Population
    Approximately 15 submissions provided input on the population that 
would be impacted by the proposed rule.
    Comments: A joint submission stated that ``hundreds of thousands'' 
of asylum seekers would either have to wait for years before they could 
legally work, or many may not receive employment authorization at all. 
Another referenced research and estimates on the thousands of people 
that would be impacted by the rule. Many commenters provided an 
estimate on the number of asylum applicants that live in a specific 
city, county, or state that would be detrimentally impacted. A few 
commenters said that the number of foreign-born residents or asylees in 
certain states, including California, Maine, and Massachusetts, is high 
if not the highest in the nation. One local government stated that more 
foreign-born residents live in the county than native born residents. 
Citing the number of affirmative asylum applications in FY 2015, an 
individual commenter stated that Massachusetts was one of the top-ten 
states for new asylee residence.
    Response: DHS does not question the accuracy of the comments and 
underlying data. The analysis is benchmarked to national figures--in 
other words, for wages, labor force, taxes--but does not rule out the 
likelihood that specific locations would experience more impacts, 
relatively speaking, than other areas. Based on historical I-765 data, 
DHS estimated in the NPRM that the maximum population that could be 
impacted at just over 300,000 the first effective year and slightly 
lower in subsequent years.
5. Impacts on Applicants (Lost Compensation/Wages)
    Approximately 70 submissions provided input on the impacts on 
applicants.
    Comments: Many expressed opposition to the proposed rule, as 
delaying and/or eliminating employment authorization eligibility would 
cause significant harm. Their arguments focused on: (1) Asylum seekers 
would lack sufficient income to support their families and pay for 
food, clothing, adequate housing, medical care, educational 
opportunities, and basic necessities; (2) Asylum seekers would not be 
able to integrate and contribute to local communities and the United 
States; (3) Asylum seekers would be forced to rely on local government 
assistance, social service organizations, and faith-based organizations 
when they would rather be self-supporting and contributing to their 
communities; (4) Asylum seekers would be pushed into the ``shadow'' 
economy, where there are no legal protections and the risk of 
exploitation is high; (5) Asylum seekers' mental health and wellbeing, 
capacity to recover from trauma would be negatively impacted. 
Commenters added that the ability to work is a form of therapy and 
self-help that sustains a person's dignity, purpose, independence, and 
feeling of self-worth; and (6) Asylum seekers would have difficulty 
obtaining a drivers' license, state-issued identification card, social 
security card, banking services, and social services benefits. Another 
commenter stated that the rule will force many bona fide asylum 
seekers, who do not have the means to go without employment, to abandon 
their meritorious asylum claims.
    Citing a 2013 report documenting the hardships asylum seekers face 
by being denied employment authorization, a comment discussed 
specifically four major areas of impact: ``psychological

[[Page 38591]]

harm and interference with the ability to heal after torture and 
persecution; economic hardships and vulnerability to further 
victimization; the physical and health-related hardships created by an 
inability to provide for oneself; and difficulties with access to legal 
counsel in pursuit of asylum claims and work authorization.''
    Response: DHS reviewed the cited reports and research, and 
understands that there could be monetary and qualitative impacts to 
applicants and their support networks, including numerous types of 
hardships. However, it is noted that aliens granted asylum would not 
need an EAD to work, and that other factors notwithstanding, denied 
asylum seekers would be generally removed from the labor force. The 
rule will alter the timing in which some or many asylum seekers are 
able to work. Asylum applicants will not be impacted in their pursuit 
of their asylum claims because this rule does not change any 
eligibility criteria for asylum. DHS expects asylum seekers to obey the 
law while in the United States, and will not assume otherwise in 
promulgating its employment authorization policies.
6. Impact to Health, Wellbeing, Access to Justice, and Vulnerable 
Populations
    Comments: Citing multiple sources of research, commenters discussed 
how gainful employment is directly tied to food security, access to 
health care, housing, good physical and mental health. The commenters 
wrote that the proposed rule would worsen these issues by barring or 
delaying access to employment. Referencing multiple studies, a 
commenter argued that providing asylum seekers with employment 
authorization increases their access to social supports necessary to 
overcome trauma and reduce their likelihood of criminal and violent 
behavior. One comment supplied stories from trauma survivors and 
clinical therapists recounting how eventual employment authorization 
and employment reduced their emotional distress and allowed them to 
heal from trauma.
    Multiple commenters said that the rule would limit applicants' 
ability to afford and procure legal assistance, which will in turn 
diminish their chances of succeeding in their cases. Citing studies, 
several commenters stated that legal counsel more than triples asylum 
seekers' odds of success, while also minimizing the need for the 
immigration court to provide lengthy explanations and continuances for 
individuals confused and overwhelmed by the system. A few comments 
addressed the other costs inherent in immigration cases, such as 
transportation costs to and from court, interviews, and meetings, which 
applicants may not be able to afford without employment authorization. 
The commenters added that loss of these would impact applicants' access 
to justice.
    Numerous commenters argued that the proposed restrictions will 
result in further exploitation of already vulnerable populations, 
including LGBT individuals, women, survivors of violence, and children. 
Some stated that delaying and/or prohibiting employment authorization 
would irreparably harm women and children fleeing from gender-based 
violence. Many commenters warned that asylum seekers would be left with 
no choice but to work illegally in order to meet their needs while 
their asylum claims are pending which can lead to their abuse and 
exploitation. Citing multiple studies, commenters stated that 
unauthorized employees are often forced to endure abuses, including 
harassment, violence, and discrimination, unsafe working conditions, 
and wage theft.
    An individual commenter wrote that restricting access to employment 
for LGBT applicants is particularly harmful. They wrote that many LGBT 
applications are unable to rely on traditional safety nets for housing 
and other basic needs due to widespread family and social rejection. 
They also cited a study that showed that LGBT asylum seekers are more 
likely to be poor, criminalized in their home countries, and to miss 
the 1-year deadline when filing. Another added that LGBQT asylum 
seekers are more likely to suffer from mental health issues as a result 
of their heightened vulnerability in the criminal justice system, lack 
of healthcare, and exposure to health risks such as HIV.
    Several commenters warned that the proposed rule would create a 
significant risk to the health, safety, education, and wellbeing of 
children. One warned that children need EADs to receive a social 
security number, which is required to access long-term educational 
opportunities, vocational and technical programs, health insurance, 
preventative care, as well as local benefit programs. Another cited 
research indicating the lifelong health and development consequences to 
young people's malnutrition, housing instability, and other 
consequences of financial insecurity. Citing multiple research studies, 
group-sponsored comment urged DHS to withdraw the proposed rule due to 
its long-term detrimental impacts on children and families, describing 
its prospective impacts to housing, mental health, and academic 
success. Another warned that child support collections would be 
negatively impacted as any barrier to employment authorization limits a 
parent's ability to support a child.
    One commenter cautioned that the largest share of the noncitizens 
they represent are minors with pending asylum applications who are 
either detained, likely to be ``stepped-down'' or reunified, or already 
reunified. The commenter reasoned that minors would be 
disproportionally affected by the proposal because an EAD provides 
minors with (1) their only form of identification and (2) provides them 
an opportunity to gain self-sufficiency and reduce their dependency on 
support services or sponsors. Another commenter reasoned that even 
those children who are too young for jobs will be harmed, as infants 
and other young children are forced to bear the burden of the 
immigration system's treatment of their parents' or guardians' delayed 
or barred eligibility.
    Response: DHS has reviewed the cited reports and research. Nothing 
in this rule changes access for asylum seekers to housing. It continues 
to be incumbent upon every asylum seeker to have a plan for where they 
intend to live during the pendency of their asylum claim and, in 
particular, while they are not employment authorized. Many asylum 
seekers stay with friends or relatives or avail themselves to community 
organizations such as charities and places of worship. There are no 
federal housing programs for asylum seekers. The Department of Health 
and Human Services maintains resources about housing in each state in 
the United States. Asylum seekers who are concerned about homelessness 
during the pendency of their employment authorization waiting period 
should become familiar with the homelessness resources provided by the 
state where they intend to reside.
    Asylum seekers may file after one year of entering the United 
States if they demonstrate to the satisfaction of an asylum officer or 
an IJ that an exception applies under INA section 208(a)(2)(D), 8 
U.S.C. 1158(a)(2)(D). However, there is still a statutory requirement 
to file an asylum application within one year, unless a changed or 
extraordinary circumstance is met. As part of the reforms to the asylum 
process, DHS also is emphasizing the importance of the statutory one-
year filing deadline for asylum applications. Both USCIS and DOJ-EOIR 
adjudicate asylum applications filed by aliens who reside

[[Page 38592]]

in the United States for years before applying for asylum. Many aliens 
filing for asylum now are aliens who were inspected and admitted or 
paroled but failed to depart at the end of their authorized period of 
stay (visa overstays), or who entered without inspection and admission 
or parole and remained, not because of a fear of persecution in their 
home country, but for economic reasons.
    Asylum seekers will not be impacted in their pursuit of their 
claims because this rule does not change any eligibility criteria for 
asylum. The commenters' other assertions that the rule arbitrarily 
imposes bars to eligibility for employment authorization and 
contravenes Congressional intent that asylum applicants receive 
employment authorization expeditiously is based on a misunderstanding 
of the INA. 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.'' INA 208(d)(2); 8 
U.S.C. 1158(d)(2). Indeed, Congress forbids DHS from conferring 
employment authorization upon an asylum applicant before at least 180 
days has passed since the filing of the asylum application. Id. While 
this rule allows asylum applicants to apply for employment 
authorization, the INA makes it clear that there is no entitlement to 
it.
8. Impacts on Support Network
    Approximately 65 submissions provided input on impacts to support 
networks.
    Comments: Multiple commenters cautioned that the rule would stretch 
social service organizations, nonprofits, faith-based organizations, 
and State and local governments beyond capacity as asylum seekers would 
lose their ability to be self-sufficient. Several commenters stated 
that, especially with the current backlog for asylum applicants, the 
proposal would impose an unreasonable burden on applicants' support 
networks. An individual commenter reasoned they would need to 
dramatically redirect focus and resources to shift its program to 
unemployment, public benefits, legal services, and other life-saving 
assistance that asylum applicants and their families would require as a 
result of the proposed rule change.
    Many commenters warned that the proposed rule requires an 
``unprecedented level of legal analysis'' for EAD applications, 
negatively impacting the capacity of legal service providers as more 
time, documentation, training, and resources will be required to put 
together EAD applications. A few commenters claimed that the proposal 
failed to consider the cost and time burden to social service and legal 
organizations. Commenters, mostly attorneys and advocacy groups, said 
that the proposed rule would negatively affect the legal community by:
    a. Forcing legal organizations to redirect limited financial and 
staff resources towards training staff on new applicable standards 
governing how to counsel clients, litigate erroneously denied 
applications, and stay abreast of case-by-case USCIS adjudications.
    b. Forcing organizations to serve fewer clients due to complexity 
and uncertainty of the EAD application processes, which could in turn 
jeopardize meeting funding deliverables and thereby put nonprofits' 
future funding at risk.
    c. Forcing State-funded nonprofits to shift limited resources to 
handle the influx of asylum seekers who will need pro bono services due 
to financial hardships.
    d. Increasing staff caseloads, as fewer clients would choose a plea 
deal in criminal cases that might render them ineligible for employment 
authorization.
    A submission opposed the proposed rule claiming it would increase 
uncompensated care costs and strain safety net providers' already 
limited resources. Citing multiple studies, commenters said the 
proposed rule would increase states' healthcare costs and cause a 
decline in overall public health as asylum seekers would be uninsured 
and skip preventative care. An individual commenter and group of 
attorneys general explained that states and communities would have to 
bear health care costs as a result of denying asylum applicants work.
    A few commenters argued that non-profit service providers and other 
charitable organizations that attempt to help the homeless would 
especially be impacted by the proposed rule. A State government opposed 
the rule because it would force non-citizens into homelessness, 
increasing unbudgeted costs (studies have found costs associated with 
homelessness could range from $20,000 to $50,000 per person per year) 
to local governments' already strained homeless shelter systems. An 
advocacy group stated that USCIS should partner with HHS and HUD to 
perform a comprehensive review on the impact the lack of employment 
authorization will have on domestic violence, shelter and housing 
providers, and victim advocacy organizations more generally before 
implementing the rule.
    A comment stated that without a social security number, non-profit 
service providers and other charitable and faith-based organizations 
would be negatively impacted. The commenter wrote that a universal 
identifier for all individuals is necessary and organizations would be 
forced to expend time and money to create a totally new tracking 
systems for all state and federal aid provided.
    Some commenters said the rule does not consider the estimated costs 
and substantial burdens that this proposed rule will likely create for 
legal services organizations, social services organizations, and state, 
local, and federal government agencies.
    Response: DHS notes this rule does not directly regulate private 
support networks or any state programs. How the states or private 
organizations allocate their resources is a choice by the state or 
organization and is not compelled by this rule. DHS notes that asylum 
applicants statutorily cannot receive employment authorization prior to 
180 days after filing an asylum application and may need to rely on 
their support networks during that time. DHS discussed in the NPRM, and 
reaffirms in this final rule, that the impacts of the rule, 
specifically in terms of lost or deferred labor compensation, could 
further burden the applicants' support network. The longer an asylum 
applicant is without an EAD, the longer the applicant's support network 
is providing assistance to the applicant. The types of entities 
affected could include, but may not be limited to, religious 
organizations and charities, family members and friends, state and 
local tax jurisdictions, non-governmental organizations (NGOs), legal 
services, and non-profit providers. However, DHS notes 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.
9. Impacts on Companies
    Approximately three dozen submissions discussed the impacts on 
employers.
    Comments: An individual commenter argued that the rule would 
disrupt business. A few commenters argued that the rule would make 
hiring more difficult for employers. Some of the commenters cited 
references and discussed the critical importance of asylum seekers to 
local economies, states, and businesses in the United States. The 
commenters wrote that many industries rely heavily on the labor of 
noncitizens, including direct healthcare, food services, housekeepers,

[[Page 38593]]

nannies, construction, and farming and agriculture.
    Many commenters argued that the rule would hurt the U.S. and State 
economies by reducing the number of prospective employees. Some 
commenters argued that businesses would have a difficult time finding 
people to fill jobs especially as the United States is experiencing a 
widespread labor shortage. A few commenters provided State unemployment 
figures and statistics in arguing that the proposal would harm State 
economies. Other commenters cited national unemployment in making the 
same argument. An advocacy group reasoned that U.S. businesses may 
incur opportunity costs by having to choose the next best alternative 
to immediate labor provided by asylum seekers and have to pay 
additional workers overtime hours to compensate for labor shortages.
    A few commenters warned that the rule fails to evaluate the impact 
on the economy and provide details on the costs to employers being 
required to hire new staff, or the disruptive effect of abruptly losing 
existing employees. Some commenters said the rule creates significant 
logistical burdens and liability costs due to possibly hiring an 
unauthorized noncitizen if the employer is unaware that for whatever 
reason employment is no longer authorized.
    A commenter cited studies which show that that noncitizens' lack of 
access to lawful employment drives down wages and decreases Gross 
Domestic Product (GDP) for the entire U.S. economy, in large part 
because lack of employment authorization creates a ``shadow'' class of 
workers with weak bargaining power, who earn an average of 42% less 
than employment authorized workers.
    Response: DHS reviewed the input, data, and sources cited by the 
commenters. While DHS agrees that certain industries in certain states 
or localities disproportionately employ immigrants, DHS reiterates that 
this rule affects only aliens with pending asylum applications (not all 
immigrants), which DHS estimates is 290,000 annually. DHS acknowledged 
in the NPRM, and reaffirms here in this final rule, that ending EADs 
early for denied/dismissed DHS affirmative asylum applications might 
cause businesses that have hired such workers to incur involuntary 
labor turnover costs earlier than without this rule. In addition, DHS 
also acknowledges that some businesses might be impacted in terms of 
employment, productivity, and profits. Such possible disruptions to 
companies would depend on the interaction of a large number of complex 
variables that are constantly in flux, including national, state, and 
local labor market conditions, economic and business factors, the types 
of occupations and skills involved, and the substitutability between 
the EAD holders and U.S. workers. It is not possible to draw inferences 
a priori concerning whether, or, to what extent, impacts to employers 
would be costs (in terms of lost productivity, lost profits, or 
increased search costs) or transfers of wages from asylum applicants to 
other available labor.
    Nonetheless, DHS expects that asylum seekers will obey the law 
while in the United States and will not assume otherwise in 
promulgating its employment authorization policies. DHS does not have 
an obligation to refrain from promulgating regulation because some 
aliens may try to ignore the law of the U.S. and put themselves into 
vulnerable and ill-advised employment situations.
10. Impact on Tax Programs
    Approximately 20 submissions provided input on tax program impacts.
    Comments: An individual argued that the proposal may actually 
increase tax revenue by increasing the income of American citizens. 
However, several commenters stated general opposition on grounds that 
it would reduce tax revenue. Commenters also stated that the proposed 
rule would cause millions to be lost in tax contributions to Social 
Security and Medicare.
    A few commenters wrote that the proposal fails to consider State 
income taxes and asylum seekers' contribution to local economies. A 
commenter said the significant employment tax losses suggest that 
annual income tax loss at multiple levels of government could also be 
significant, and DHS makes no attempt to calculate these annual losses 
at the state and local levels. The commenter concluded that if (as some 
have stated) DHS's calculations of lost compensation are too low, and 
if (as this commenter argued) DHS has not quantified impacts with 
respect to the full pool of affected asylum seekers, then DHS has also 
[not] accounted for or considered the full scope of lost tax 
contributions, including both employment tax losses and income tax 
losses.
    A comment argued that DHS' estimate of $682.9 million in lost tax 
revenue is too low as the estimate does not account for factors such as 
long-term increases in wages. A group of commenters contended that the 
Department's estimate that the federal government would lose up to 
$682.9 million in tax revenue does not include the losses incurred by 
barring previously eligible groups from obtaining EADs nor does DHS 
calculate the substantial losses to the states. Other commenters 
provided estimates by state of local and state tax losses, and a few 
warned that the states would also lose revenue as a result of increased 
wage theft.
    Response: DHS 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 at 84 FR 62418, ``There could also be a 
reduction in income tax transfers from employers and employees that 
could impact individual states and localities.'' DHS notes the tax 
rates of the states vary widely, and many states impose no income tax 
at all.\161\ It is also difficult to quantify income tax losses because 
individual tax situations vary widely. Although DHS is unable to 
quantify potential lost income taxes, DHS 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. DHS agrees that even this quantified estimate is not 
representative of all potential federal employment taxes losses because 
although it considered the impact of all provisions, as discussed 
previously, DHS was unable to quantify all impacts. DHS also recognizes 
that this quantified estimate of federal employment taxes 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. Finally, DHS recognizes that earnings could increase with 
time (in other words, over the EAD validity period), but has no way to 
integrate this possibility into the cost methodology. 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.
---------------------------------------------------------------------------

    \161\ 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).

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[[Page 38594]]

11. Other Impacts on Governments and Communities
    Approximately 35 submissions discussed impacts on governments and 
communities.
    Comments: Some commenters argued that the proposal would hurt 
American workers, as asylum seekers would have to work without 
authorization and employment law protections, driving down wages and 
lowering labor standards overall. An individual argued that there is no 
evidence that asylum employment authorization negatively impacts 
American worker employment rates. Another cited research that suggests 
that noncitizens tend to complement native workers rather than to 
compete with them directly for jobs.
    Some commenters warned that the rule introduces new eligibility 
requirements that would negatively impact USCIS processing times, the 
quality of asylum adjudications, and other impacts on the U.S. 
immigration system and federal agencies. One commented that the 
proposal would increase burdens on USCIS by adding criteria that 
officers must review before granting work permits. Another claimed the 
rule would impose additional administrative costs as State motor 
vehicle agencies would be impacted by delayed adjudications and the 
USCIS' Ombudsman would have to handle more complaints about the USCIS 
backlogs.
    Multiple commenters argued that asylum seekers contribute to local 
communities and the United States in various ways, including bringing 
new businesses and culturally diversity, resettling deserted 
neighborhoods, filling undesirable or unfilled jobs, and helping to 
reduce crime. A few commenters wrote that Maine, specifically, 
benefitted from asylum seekers, especially as it has low unemployment 
and an aging population. Two submissions stated that in denying asylum 
seekers the ability to work, the rule would deny hundreds of 
communities across the United States the opportunity to grow. Another 
commenter wrote that the United States is generally becoming older and 
needs more young workers. A few commenters, including a researcher 
citing multiple studies, stated that allowing immigrants to live and 
work in the United States boosts innovation and patents and leads 
individuals to choose jobs that match their skill levels.
    Citing multiple studies, a few commenters argued that legal access 
to work improves refugee integration and improves public safety. One 
warned that the proposal could cause heightened crime rates and in turn 
compel local law enforcement to increase expenditures and resources to 
investigate and prosecute crimes. A few commenters argued that the 
proposed rule would make it more difficult for states to fulfill their 
mandates to enforce their own labor and civil rights laws. The 
commenters explained that these laws are enforced without respect to 
immigration status, but effective enforcement relies on employees' 
ability and willingness to report violations. An individual remarked 
that asylum seekers who witness a crime would refrain from calling the 
police out of fear of reprisal for not having a work permit and thus 
valid proof of identification. Citing studies, several commentators 
said fear of reprisal and deportation would inhibit unauthorized 
workers from reporting crimes and violations, and that, with the 
potential for increased violence and crimes, the proposed rule fails to 
account for costs to local communities, including:
    a. Increased resources in public schools to provide counseling and 
psychological services to traumatized children who have witnessed or 
suffered violence;
    b. Potential societal impacts to U.S. citizens and other community 
members; and
    c. Subsequent financial costs incurred by local communities where 
asylum applicants live.
    A few commenters stressed that the proposed rule stands against 
everything they represent as a welcoming city and would impede efforts 
to welcome asylum seekers to their communities.
    Response: DHS recognizes that asylum seekers can have important, 
positive impacts on local communities, including cultural diversity and 
participation in local labor markets. It also appreciates the 
commenters' concerns about community security, local law enforcement 
resources, and preventing exploitation of non-citizen labor. DHS has a 
strong interest in discouraging criminal behavior to protect 
communities, which is a significant impetus of promulgating this rule, 
and protecting the U.S. and non-citizen worker. DHS has and continues 
to engage in other rulemakings that strengthen protections of U.S. and 
non-citizen workers and detect and prevent fraud in employment-based 
immigrant and non-immigrant programs. While DHS has considered all of 
the commenters' concerns, many of them are outside the purview of DHS. 
It has weighed the relevant impacts and determined that this final rule 
is necessary to achieve its stated goals. Further, the U.S. asylum 
program is in place to vet and provide protections to those aliens who 
qualify, and is not a jobs, labor, or employment program. DHS believes 
that achieving the stated goals of this final rule outweigh speculative 
adverse effects to local labor markets and challenges attracting 
younger workers among aging populations. Those concerns, while they may 
be valid, are outside the purview of DHS. Further, it does not appear 
that it was the intent of Congress to address local labor issues by 
providing asylum seekers with work authorization.
    With regard to comments related to the willingness of aliens to 
report crimes, while DHS does not dispute that aliens employed 
unlawfully might be less willing to report a crime, DHS cannot reliably 
estimate this rule's speculative impact on local policing. Asylum 
applicants can often remain without employment authorization for over 
one year under the prior regulatory regime. DHS does not agree that 
codifying a one calendar-year waiting period will result in a 
significant amount of crimes going unreported, and a resulting need for 
social services. Nothing in this regulation prevents any alien from 
reporting a crime.
    As we stated in an earlier response, DHS does not believe that this 
rule will negatively impact average processing times for asylum 
applications, the quality of asylum adjudications, and other impacts on 
the U.S. immigration system and federal agencies. USCIS adjudicators 
are well-trained and have numerous resources at their disposal for 
adjudicating cases. Adjudicators already have applications and forms 
that they have to consider criminality, admissibility, and date and 
manner of entry. The requirements in this rule are not new to 
adjudications. In addition, adjudicators have access to attorneys, law 
libraries, and research material, and country of origin information to 
help determine eligibility. This rule intends to establish more 
stringent requirements of eligibility for employment authorization, in 
order to disincentivize aliens who are not legitimate asylum seekers 
that, in turn, should result in a decrease of frivolous, fraudulent, or 
otherwise non-meritorious asylum applications. DHS disagrees that this 
can further prolong adjudicating EADs or asylum applications. However, 
DHS acknowledges that the review of biometrics information and 
complexity of review to determine ineligibility due to the conditions 
in this rule may require additional time and resources for some EAD 
applications, especially where the alien fails to provide the requisite 
information and

[[Page 38595]]

documentation required by the (c)(8) EAD application.
    While DHS supports the ability of lawfully present aliens, 
including legitimate asylum seekers, to become economically self-
sufficient and contribute to the U.S economy, employment authorization 
is carefully regulated in the United States in order to protect the 
U.S. labor market, and also to maintain the integrity of the U.S. 
immigration system. DHS has identified employment authorization, 
coupled with the lengthy asylum adjudication process, as a driver of 
non-meritorious asylum applications. Asylum applicants must currently 
wait at least 180 days before they may be employment authorized. During 
this period, they may not have the financial resources to be 
economically self-sufficient upon arrival into the United States, and 
it is unreasonable for any asylum seeker to come to the United States 
with the expectation of immediate economic self-sufficiency and/or the 
absence of economic and other types of hardship.
12. Benefits
    Three submissions addressed the benefits of the proposed rule.
    Comments: A couple of commenters argued that DHS' claim that the 
proposed rule would provide qualitative benefits to asylum seekers, 
communities, the U.S. government, and society at large is ``absurd'' 
and without adequate justification. An individual argued that the 
assertion that the U.S. labor market would benefit is not supported in 
the proposed rule, as the Department of Labor was not consulted. The 
commenter argued that this renders the economic arguments at best 
speculative.
    Response: DHS disagrees with the claims that this rule will not 
provide benefits. As we discussed in detail in the NPRM, and reaffirm 
in this final rule, it is not possible to quantify and monetize the 
benefits this rule stands to generate, which are summarized below.
    Aliens with bona fide asylum claims will be prioritized because the 
incentives for aliens to file frivolous, fraudulent, or otherwise non-
meritorious asylum applications intended primarily to obtain employment 
authorization will be reduced. A streamlined system for employment 
authorizations for asylum seekers will reduce fraud and improve overall 
integrity and operational efficiency, thereby benefiting the U.S. 
government and the public.
    In addition, the rule removes incentives for aliens to enter the 
United States illegally for economic reasons and allow bona fide asylum 
seekers who present themselves at the U.S. ports of entry to have their 
applications for employment authorization easily granted, provided 
other criteria are met. DHS believes these administrative reforms will 
encourage aliens to follow the lawful process to immigrate to the 
United States, which will reduce injuries and deaths that occur during 
dangerous illegal entries.
    Providing low-threshold employment authorization with nearly 
limitless renewals to asylum seekers incentivizes such aliens to come 
to and remain in the United States, and also undermines the 
Administration's goals of strengthening protections for U.S. workers in 
the labor market. Several employment-based visa programs require U.S. 
employers to test the labor market, comply with recruiting standards, 
agree to pay a certain wage level, and agree to comply with standards 
for working conditions before they can hire an alien to fill the 
position. These protections do not exist in the (c)(8) EAD program.
    Finally, the biometrics requirement will benefit the U.S. 
Government by enabling DHS to know with greater certainty the identity 
of aliens seeking (c)(8) EADs and more easily vet those aliens for 
benefit eligibility, and will strengthen the ability to limit identity 
fraud and combat human trafficking and other types of exploitation.
    In addition, the assertion that ``the U.S. labor market would 
benefit is not supported in the proposed rule, as the Department of 
Labor was not consulted'' is generally out of context. We are not aware 
of claims in the NPRM that the U.S. labor market would benefit per se, 
but rather that some U.S. workers might benefit if they are able to 
acquire jobs that the asylum seekers held sooner, which, as we have 
conveyed in multiple responses, will depend on a host of factors. 
Moreover, DHS works closely with inter-agency partners to identify 
equities that might be impacted in its rulemakings. In this particular 
rulemaking, the asylum related EAD protocol does not require an 
agreement or certification from the U.S. Department of Labor.
13. Alternatives
    Three submissions discussed alternatives.
    Comments: Despite advancing significant changes to longstanding 
processes and policies, a commenter wrote the rule fails to 
meaningfully consider alternatives and said that DHS could have 
considered a pilot program to evaluate and gather data on the need for 
and effectiveness of one or more of the proposed reforms before 
proceeding to a rule. Further, the commenter provided examples of 
initiatives that the agency has already undertaken that have made 
progress to address the asylum backlog. A commenter concluded that the 
rule makes only passing efforts to consider other alternatives to the 
proposed changes. Another commenter argued that since DHS failed to 
provide an ``adequate explanation of what it hopes to achieve with the 
proposed rule,'' the public is unable to adequately determine whether 
there are reasonable alternatives the agency failed to consider for 
achieving the desired outcome, because the desired outcome is unknown.
    Response: DHS has undertaken a range of initiatives to address the 
asylum adjudication backlog and mitigate its consequences for 
legitimate asylum seekers, agency operations, and the integrity of the 
asylum system. DHS has made the determination that the asylum system in 
its entirety is vulnerable to being EAD-driven--that is, utilized by 
aliens who may not have a meritorious claim but know they can file an 
asylum application and become work-authorized for years while their 
asylum application is processed.
    As it relates to the 365-day period, DHS started with the premise 
that the current 180-day waiting period is insufficient to deter aliens 
from filing asylum applications that are without merit, and likely 
driven in part by the intent to become employment authorized while 
waiting years for the adjudication of the asylum application. DHS made 
this determination based on record wait times, adjudications, and 
denials of asylum applications--a trend that continued into Fiscal Year 
2019. DHS noted that the 365-day EAD waiting period is based on an 
average adjudication time that can stretch beyond two years, but did 
not provide an analysis of why a 365 day waiting period was chosen, as 
opposed to any other length of time, because it would be unfeasible and 
unnecessary for DHS to do a comparison of 365 days versus any time 
period between the current 180 day requirement and 365 days and what 
the deterrent effect would be. DHS is confident that 365 days is a 
sufficient wait period to deter aliens from filing non-meritorious, 
EAD-motivated asylum applications. DHS is also confident that those 
aliens legitimately fleeing persecution in their home countries will be 
willing to adapt to the longer wait period for employment 
authorization, if necessary, in favor of pursuing an asylum 
application. With a reduction in non-meritorious filings and other 
changes, such as LIFO processing reinstituted in January 2018, bona 
fide claims could be adjudicated and granted

[[Page 38596]]

in far fewer than 365 days, which would result in immediate employment 
authorization. In 2018, the average affirmatively-filed asylum 
application completed by USCIS was decided in 166 days. DHS 
acknowledges that the longer wait period may result in some additional 
hardship for some asylum seekers. However, this is a temporary hardship 
that has been balanced against the need to deter EAD-motivated asylum 
applications. DHS considered the possibility of not offering employment 
authorization to aliens with pending asylum applications. DHS 
determined that a 365 day waiting period would be less restrictive and 
would better balance the impact on asylum seekers with the goals of 
DHS. While there might be another waiting period that might have 
slightly less impact on the asylum seeker, such as 240 days, DHS 
believes that period would also have less of a deterrent effect on EAD-
motivated asylum applications. In selecting the 365 day waiting period, 
coupled with removing the Asylum EAD Clock, DHS believes it is 
achieving an appropriate balance between the impact that the rule has 
on the asylum seeker with the goals of the government. DHS believes 
that any sort of ``pre-screening'' of asylum seekers to exempt them 
from the wait period would be inappropriate. The adjudication of an 
asylum application is a complex and detailed process conducted by 
specially trained asylum officers or IJ. The process does not lend 
itself to ``screening'' but instead relies upon an hours-long interview 
with the asylum applicant or hearings before an IJ to ascertain 
eligibility and credibility. On the issue of reducing I-589 
adjudication times before USCIS, the reduction of adjudication times is 
an overarching goal of USCIS, and 500 new asylum officers were hired 
between fiscal years 2019 and 2020 to help achieve this. However, such 
a significant reduction of asylum adjudication times is not a feasible 
short term goal for USCIS, nor does DHS have any ability to impact the 
timelines of those asylum cases being heard by DOJ-EOIR. DHS believes 
that allowing aliens to become employment authorized concurrent with 
the filing of their asylum claim is similarly unfeasible, and DHS 
believes this would lead to an immediate and devastating glut of asylum 
applications being filed, making it virtually impossible for legitimate 
asylum seekers to have their claims adjudicated with any semblance of 
timeliness.

B. Other Comments on Statutory and Regulatory Requirements

1. Unfunded Mandates Reform Act (UMRA)
    Comment: A few commenters argued that the Department did not 
provide the analysis required by the UMRA, as there is no indication 
that reasonable alternatives were fully considered, nor the most cost-
effective and least burdensome option evaluated. Another commenter said 
the rule does not consider the estimated costs and substantial burdens 
that this proposed rule will likely create for legal services 
organizations, social services organizations, and state and local 
government agencies.
    Response: DHS does not agree that this rulemaking violates the 
Unfunded Mandates Reform Act (UMRA) because this rulemaking does not 
impose any Federal mandates on State, local, or tribal governments, in 
the aggregate, or the private sector.
    As it relates to alternatives, DHS is committed to finding options 
to deter baseless asylum claims while protecting the rights of true 
asylum seekers. DHS has undertaken a range of initiatives to address 
the asylum adjudication backlog and mitigate its consequences for 
asylum seekers, agency operations, and the integrity of the asylum 
system. These efforts include: (1) Revised scheduling priorities 
including changing from First in First out (``FIFO'') order processing 
to Last in First Out (``LIFO'') order; (2) staffing increases and 
retention initiatives; (3) acquiring new asylum division facilities; 
(4) assigning refugee officers to the Asylum Division; (5) conducting 
remote screenings; and (6) launching a pilot program for applicants 
seeking a route to immigration court to request cancellation of 
removal. These efforts are a top priority for the agency, because DHS 
recognizes that adjudication backlogs may be a driver in attracting 
asylum applicants who are knowingly file a weak or baseless asylum 
application and remain employment authorized in the United States for 
months or years while that application is adjudicated. DHS has made the 
determination that the asylum system in its entirety is vulnerable to 
being EAD-driven--that is, utilized by aliens who may not have a 
meritorious claim but know they can file an asylum application and 
become work-authorized for years while their asylum application is 
processed.
    See the preceding section for a discussion on alternatives to the 
365-day period and ``pre-screening'' asylum applicants.
    As it relates to the concern regarding estimated costs and 
substantial burdens that this rule will likely create for legal 
services organizations, social services organizations, and state and 
local government agencies, DHS explained in the NPRM, and reaffirms 
here, that the support network for some asylum seekers will be burdened 
longer than the 180 days that they currently would rely on. Legal and 
social organizations could embody this network. DHS is confident that 
with a reduction in non-meritorious filings and other changes, such as 
LIFO processing, bona fide claims can be adjudicated in less than 365 
days. DHS does not know what the specific burdens to states and local 
governments would be, but does recognize the potential impact to taxes, 
as discussed elsewhere.
2. Federalism
    Comments: A few commenters also stated that the proposed rule 
failed to conduct an adequate federalism analysis under Executive Order 
13132 as the proposed rule did not provide detailed costs to State and 
local programs nor consult with the states prior to drafting the rule.
    Response: DHS disagrees that the regulatory assessment is not in 
compliance with Executive Order 13132. 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 
adjusts regulations pertaining to applications, interviews, and 
eligibility for employment authorization based on a pending asylum 
application, which is within the purview and authority of DHS and does 
not directly affect states.
    However, DHS does note that this rule indirectly impacts states. 
DHS discusses these indirect impacts in the NPRM and in this final 
rule. For example, DHS noted that if companies are unable to find 
replacement labor for the work asylum applicants would have performed, 
there could be a reduction in State taxes.
Additionally, DHS recognizes there may be additional distributional 
impacts on states, such as for assistance from state-funded agencies 
and for healthcare from state-funded hospitals.
    Comment: A lawyer also argued that the proposed rule failed to 
account for derivatives on asylum applications, most often children, 
and failed to properly address Executive Order 13045, Protection of 
Children from Environmental Health Risks and Safety

[[Page 38597]]

Risks, as the proposed rule creates significant risk to the health and 
safety of children.
    Response: With regard to dependent applicants, dependents listed on 
an applicant's I-589 are accounted for in adjudication in the same 
manner as the principal applicant. In the majority of cases, dependents 
would receive the same adjudicative treatment as the principal. 
Environmental health risks or safety risks refer to risks to health or 
to safety that are attributable to products or substances that the 
child is likely to come in contact with or ingest (such as the air we 
breathe, the food we eat, the water we drink or use for recreation, the 
soil we live on, and the products we use or are exposed to).\162\ When 
promulgating a rule of this description, DHS must evaluate the effects 
of the planned regulation on children and explain why the regulation is 
preferable to potentially effective and reasonably feasible 
alternatives. DHS does not believe the reforms in this rulemaking 
create significant risk to the health and safety of children with 
regard to the products or substances a child is likely to come into 
contact with.
---------------------------------------------------------------------------

    \162\ See https://www.epa.gov/laws-regulations/summary-executive-order-13045-protection-children-environmental-health-risks-and (last accessed 03/02/2020).
---------------------------------------------------------------------------

VI. Statutory and Regulatory Requirements

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

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if a 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This 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 rule. This final rule is considered 
an E.O. 13771 regulatory action.
Summary
    DHS has considered alternatives and has undertaken a range of 
initiatives to address the asylum backlog and mitigate its consequences 
for asylum seekers, agency operations, and the integrity of the asylum 
system. These efforts include: (1) Revised scheduling priorities 
including changing from FIFO order processing to LIFO order; (2) 
staffing increases and retention initiatives; (3) acquiring new asylum 
division facilities; (4) assigning refugee officers to the Asylum 
Division; and (5) conducting remote screenings.\163\
---------------------------------------------------------------------------

    \163\ See Dep't of Homeland Security, 2018 Citizenship & 
Immigration Services Ombudsman Annual Report at 44.
---------------------------------------------------------------------------

    a. Revised Interview Scheduling Priorities: A significant 
scheduling change occurred in January 2018 with FIFO scheduling 
returning to LIFO scheduling order. Previously implemented in 1995, 
LIFO remained in effect until 2014. Under FIFO scheduling, USCIS 
generally processed affirmative asylum applications in the order they 
were filed. The now-operative LIFO scheduling methodology prioritizes 
newly-filed applications. Some offices already report a 25 percent drop 
in affirmative asylum filings since implementation of the LIFO 
scheduling system in January 2018.\164\
---------------------------------------------------------------------------

    \164\ Id. at 45.
---------------------------------------------------------------------------

    b. Staffing Increases and Retention Initiatives: Since 2015, USCIS 
has increased the number of asylum officer positions by more than 50 
percent, from 448 officers authorized for FY 2015 to 686 officers 
authorized for FY 2018. Along with these staffing enhancements, USCIS 
increased the frequency with which it offered its Combined Training and 
Asylum Division Officer Training Course. Moreover, to address asylum 
officer turnover, USCIS has made efforts to increase telework options 
and expand opportunities for advancement.\165\
---------------------------------------------------------------------------

    \165\ Id. at 46.
---------------------------------------------------------------------------

    c. New Asylum Division Facilities: The Asylum Division also 
expanded its field operations, opening the Asylum Pre-Screening Center 
in Arlington, VA, and sub-offices in Boston and New Orleans. Its most 
significant expansion, however, is just getting underway. Currently, 
the Asylum Division is establishing an asylum vetting center--distinct 
from the planned DHS-wide National Vetting Center--in Atlanta, Georgia. 
This center will allow for the initiation of certain security checks 
from a central location, rather than at individual asylum offices, in 
an effort to alleviate the administrative burden on asylum officers and 
to promote vetting and processing efficiency. USCIS has already begun 
hiring for the center, which will ultimately staff approximately 300 
personnel, composed of both asylum and Fraud Detection and National 
Security Directorate (FDNS) positions. USCIS expects completion of the 
center's construction in 2020.\166\
---------------------------------------------------------------------------

    \166\ Id.
---------------------------------------------------------------------------

    d. Remote Screenings: Telephonic: In 2016, the Asylum Division 
established a sub-office of the Arlington Asylum Office dedicated to 
adjudicating credible and reasonable fear claims. This sub-office 
performs remote (primarily telephonic) screenings of applicants who are 
located in detention facilities throughout the country. The Asylum 
Division states that its practice of performing remote telephonic 
screenings of credible and reasonable fear claims have enhanced 
processing efficiency since implementation. These screenings allow 
asylum offices greater agility and speed in reaching asylum seekers 
whose arrival patterns in the United States are not always predictable 
and who may be detained at remote detention facilities.\167\
---------------------------------------------------------------------------

    \167\ Id.
---------------------------------------------------------------------------

    e. Refugee Officers Assigned to the Asylum Division: Throughout 
2018, USCIS had approximately 100 refugee officers serving 12-week 
assignments with the Asylum Division at any given time. These refugee 
officers are able to interview affirmative asylum cases, conduct 
credible fear and reasonable fear screenings, and provide operational 
support. USCIS now assigns refugee officers both to asylum offices and 
DHS's family residential centers.\168\
---------------------------------------------------------------------------

    \168\ Id. at. 46-47.
---------------------------------------------------------------------------

    A simple regulatory alternative to extending the waiting period to 
365 days and strengthening eligibility requirements is rescinding 
employment authorization for asylum applicants altogether, which is 
permissible under INA 208(d)(2). This too would reduce pull factors and 
alleviate the asylum backlog.
However, DHS seeks to balance deterrence of those abusing the asylum 
process for economic purposes and providing more timely protection to 
those who merit such protection, which includes immediate and automatic 
employment authorization when the asylum application is granted. DHS 
believes the amendments in this rule strike a greater balance between 
these two goals. The amendments build upon a carefully planned and 
implemented comprehensive backlog reduction plan and amends the (c)(8) 
EAD process so that those with bona fide asylum claims can be 
prioritized and extended the protections, including employment 
authorization, that the United States offers to aliens seeking refuge 
from persecution or torture.

[[Page 38598]]

1. Baseline
    The impacts of this rule are measured against a baseline. This 
baseline is the best assessment of the way the world would look absent 
this action. The table below explains each of the provisions of this 
rule, and the baseline against which the change is measured.

                                         Table 4--Baseline by Provision
----------------------------------------------------------------------------------------------------------------
          Description               CFR citation                    Change                       Baseline
----------------------------------------------------------------------------------------------------------------
                           Provisions that affect asylum and employment authorization
----------------------------------------------------------------------------------------------------------------
Eliminate the issuance of        8 CFR 208.7, 8 CFR  USCIS would no longer issue grants   Aliens who have
 ``Recommended Approvals'' for    274a.12.            of recommended approvals as a        received a notice of
 a grant of affirmative asylum.                       preliminary decision for             recommended approval
                                                      affirmative asylum adjudications.    are able to request
                                                      As such, aliens who previously       employment
                                                      could apply early for an EAD based   authorization prior
                                                      on a recommended approval now will   to the end of the
                                                      be required either to wait 365       waiting period for
                                                      days before they could apply for     those with pending
                                                      an EAD based on a pending            asylum applications.
                                                      application, or wait until they
                                                      are granted asylum (if the asylum
                                                      grant occurs earlier than 365
                                                      days).
``Complete'' asylum              8 CFR 208.3.......  Removing outdated provision that     Application for asylum
 applications.                                        application for asylum will          is automatically
                                                      automatically be deemed              deemed ``complete''
                                                      ``complete'' if USCIS fails to       if USCIS fails to
                                                      return the incomplete application    return the incomplete
                                                      to the alien within a 30-day         application to the
                                                      period.                              alien within a 30-day
                                                                                           period.
Eligibility for Employment       8 CFR 208.4, 8 CFR  Applicant-caused delays unresolved   Applicant-caused
 Authorization--Applicant-        208.9.              by the date the EAD application is   delays toll the 180-
 caused delay.                                        filed result in denial of the        day Asylum EAD clock.
                                                      application for employment           No regulatory
                                                      authorization. Examples of           restriction on how
                                                      applicant-caused delays include,     close to an asylum
                                                      but are not limited to the list      interview applicants
                                                      below:                               can submit additional
                                                                                           evidence.
                                                        1. A request to amend a pending
                                                         application for asylum or to
                                                         supplement such an application
                                                         if unresolved on the date the
                                                         (c)(8) EAD application is
                                                         adjudicated;
                                                        2. An applicant's failure to
                                                         appear to receive and
                                                         acknowledge receipt of the
                                                         decision following an interview
                                                         and a request for an extension
                                                         to submit additional evidence,
                                                         and;
                                                        3. Submitting additional
                                                         documentary evidence fewer than
                                                         14 calendar days prior to
                                                         asylum interview.
----------------------------------------------------------------------------------------------------------------
                              Provisions that affect employment authorization only
----------------------------------------------------------------------------------------------------------------
365-day wait...................  8 CFR 208.7.......  All aliens seeking a (c)(8) EAD      150-day waiting period
                                                      based on a pending asylum            plus applicant-caused
                                                      application wait 365 calendar days   delays that toll the
                                                      from the receipt of their asylum     180-day Asylum EAD
                                                      application before they can file     Clock.
                                                      an application for employment
                                                      authorization.
Revise eligibility for           8 CFR 208.7.......  For aliens who file their asylum     No such restriction.
 employment authorization--One                        application on or after the
 Year Filing Deadline.                                effective date of this rule,
                                                      exclude from (c)(8) EAD
                                                      eligibility aliens who have failed
                                                      to file for asylum for one year
                                                      unless and until an asylum officer
                                                      or IJ determines that an exception
                                                      to the statutory requirement to
                                                      file for asylum within one year
                                                      applies.
Revise eligibility for           8 CFR 208.7.......  In addition to aggravated felons,    Aggravated felons are
 employment authorization--                           also exclude from (c)(8)             not eligible.
 Criminal Convictions.                                eligibility aliens who have
                                                      committed certain lesser criminal
                                                      offenses on or after the effective
                                                      date of this rule.

[[Page 38599]]

 
Revise eligibility for           8 CFR 208.7.......  Exclude from (c)(8) eligibility      No such restriction.
 employment authorization--                           aliens who entered or attempted to
 Illegal Entry.                                       enter the United States at a place
                                                      and time other than lawfully
                                                      through a U.S. port of entry on or
                                                      after the effective date of this
                                                      rule, with limited exceptions.
Termination of EAD after Asylum  8 CFR 208.7.......  When a USCIS asylum officer denies   An asylum applicant's
 Denial or Dismissal by USCIS                         or dismisses an alien's request      EAD terminates within
 Asylum Officer.                                      for asylum, the (c)(8) EAD would     60 days after a USCIS
                                                      be terminated effective on the       asylum officer denies
                                                      date the asylum application is       the application or on
                                                      denied. If a USCIS asylum officer    the date of the
                                                      refers the case to an IJ and         expiration of the
                                                      places the alien in removal          EAD, whichever is
                                                      proceedings, employment              longer. When an
                                                      authorization will be available to   asylum officer refers
                                                      the alien while the IJ adjudicates   an affirmative
                                                      the asylum application.              application to an IJ,
                                                                                           the application
                                                                                           remains pending and
                                                                                           the associated EAD
                                                                                           remains valid while
                                                                                           the IJ adjudicates
                                                                                           the application.
Termination of EAD after Asylum  8 CFR 208.7.......  If the IJ denies the asylum          8 CFR 208.7(b)(2)
 Denial by IJ.                                        application, employment              provides that when an
                                                      authorization would continue for     IJ denies an asylum
                                                      30 days after the date the IJ        application, the EAD
                                                      denies the application to allow      terminates on the
                                                      for appeal to the BIA. If the        date the EAD expires,
                                                      alien files a timely appeal of the   unless the asylum
                                                      denied asylum application with the   applicant seeks
                                                      BIA, employment authorization        administrative or
                                                      eligibility would continue through   judicial review.
                                                      the BIA appeal.
Termination of EAD after Asylum  8 CFR 208.7.......  Employment authorization would not   Asylum applicants are
 Denial Affirmed by the BIA.                          be granted after the BIA affirms a   currently allowed to
                                                      denial of the asylum application     renew their (c)(8)
                                                      and while the case is under review   EADs while their
                                                      in Federal court, unless the case    cases are under
                                                      is remanded to DOJ-EOIR for a new    review in Federal
                                                      decision.                            court.
Eligibility for Employment       8 CFR 208.10......  An applicant's failure to appear     No such restriction.
 Authorization--Failure to                            for an asylum interview or
 appear.                                              biometric services appointment may
                                                      lead to the dismissal or referral
                                                      of his or her asylum application
                                                      and may be deemed an applicant-
                                                      caused delay affecting employment
                                                      authorization eligibility.
Limit EAD validity periods.....  8 CFR 208.7.......  USCIS will, in its discretion,       No such restriction.
                                                      determine validity periods for
                                                      initial and renewal EADs but such
                                                      periods will not exceed two years.
                                                      USCIS may set shorter validity
                                                      periods.
Incorporate biometrics           8 CFR 208.7.......  Asylum applicants applying for       No such requirement.
 requirements into the                                (c)(8) employment authorization      However, there is a
 employment authorization                             must submit biometrics at a          requirement to submit
 process for asylum seekers.                          scheduled biometrics services        biometrics with an
                                                      appointment.                         asylum application.
Eligibility for Employment       8 CFR 274a.12.....  Aliens who have been paroled into    DHS policy guidance
 Authorization--aliens who have                       the United States after being        since 2017,
 been paroled after being found                       found to have credible fear or       consistent with
 to have a credible fear of                           reasonable fear of persecution or    Congressional intent
 persecution or torture.                              torture may not apply for            regarding making
                                                      employment authorization under 8     asylum seekers wait
                                                      CFR 274a.12(c)(11). They may,        at least 180 days
                                                      however, continue to apply for an    after filing asylum
                                                      EAD under 8 CFR 274a.12(c)(8) if     application to obtain
                                                      their asylum application has been;   employment
                                                      pending for more than 365 days and   authorization,
                                                      they meet the remaining              instructs that when
                                                      eligibility requirements.            DHS exercises its
                                                                                           discretion to parole
                                                                                           such aliens, officers
                                                                                           should endorse the
                                                                                           Form I-94 with an
                                                                                           express condition the
                                                                                           employment
                                                                                           authorization not be
                                                                                           provided under 8 CFR
                                                                                           274a.12(c)(11).
Application for EAD............  8 CFR 274a.13.....  Clarifying that EAD applications     N/A.
                                                      must be filed in accordance with
                                                      the general filing requirements in
                                                      8 CFR 103.2(a), 208.3, and 208.4.
Application for EAD............  8 CFR               Provides USCIS discretion to grant   Current regulations do
                                  274a.13(a)(1).      (c)(8) EAD applications consistent   not give the agency
                                                      with INA 208(d)(2).                  discretion to issue
                                                                                           (c)(8) EADs. 8 CFR
                                                                                           274a.13(a)(1)
                                                                                           currently states: The
                                                                                           approval of
                                                                                           applications filed
                                                                                           under 8 CFR
                                                                                           274a.12(c), except
                                                                                           for 8 CFR
                                                                                           274a.12(c)(8), are
                                                                                           within the discretion
                                                                                           of USCIS.

[[Page 38600]]

 
Application for EAD--automatic   8 CFR               For asylum applications denied, any  For asylum
 extensions and automatic         274a.13(d)(3), 8    EAD that was automatically           applications denied,
 terminations.                    CFR 208.7(b)(2).    extended pursuant to 8 CFR           any EAD that was
                                                      274a.13(d)(1) based on a timely      automatically
                                                      filed renewal application will       extended pursuant to
                                                      automatically terminate on the       8 CFR 274a.13(d)(1)
                                                      date the asylum officer, the IJ,     will terminate at the
                                                      or BIA denies the asylum             expiration of the EAD
                                                      application, or on the date the      or 60 days after the
                                                      automatic extension expires (which   denial of asylum,
                                                      is up to 180 days), whichever is     whichever is longer.
                                                      earlier.
Cross-reference to any           8 CFR 274a.14.....  Cross-reference to any automatic     N/A.
 automatic termination                                termination provision elsewhere in
 provision.                                           DHS regulations, including the
                                                      automatic termination provision
                                                      being implemented in this rule.
Specify the effective date.....  ..................  EAD applications, including          N/A.
                                                      renewals, postmarked or
                                                      electronically submitted on or
                                                      after the effective date will be
                                                      adjudicated under the rule.
----------------------------------------------------------------------------------------------------------------

2. Costs and Benefits
    This rule amends the (c)(8) EAD process by extending the period 
that an asylum applicant must wait in order to be employment 
authorized, and by disincentivizing asylum applicants from causing 
delays in the adjudication of their asylum applications. DHS has 
considered that some asylum applicants may seek unauthorized employment 
without possessing a valid employment authorization document, but is 
unable to estimate the size of this effect and does not believe this 
should preclude the Department from making procedural adjustments to 
how aliens gain access to employment authorization based on a pending 
asylum application. The provisions herein seek to reduce the incentives 
for aliens to file frivolous, fraudulent, or otherwise non-meritorious 
asylum applications primarily to obtain employment authorization and 
remain for years in the United States for economic purposes.
    The quantified maximum population this rule will apply to is about 
290,000 annually. This include aliens filing both meritorious and non-
meritorious asylum applications. DHS assessed the potential impacts 
from this rule overall, as well as the individual provisions, and 
provided quantitative estimates of such impacts where possible and 
relevant. For the provisions involving biometrics and the removal of 
recommended approvals, the quantified analysis covers the entire 
population. For the change to a 365-day waiting period to file an EAD, 
the quantified analysis also covers the entire population; however, DHS 
relies on historical data to estimate the costs for affirmative cases 
and certain assumptions to provide a maximum potential estimate for the 
remaining affected population. For the provisions that will potentially 
end some EADs early, DHS estimated only the portion of the costs 
attributable to affirmative cases because DHS has no information 
available to estimate the number of defensive cases.
    DHS provides a qualitative analysis of the provisions to terminate 
EADs earlier for asylum cases denied/dismissed by an IJ (defensive 
cases), to remove employment eligibility for asylum applicants under 
the (c)(11) category, and to bar employment authorization for asylum 
applicants with certain criminal history, who did not enter at a U.S. 
port of entry, or who, with certain exceptions, did not file for asylum 
within one year of their last arrival to the United States. As 
described in more detail in the unquantified impacts section, DHS does 
not have the data necessary to quantify and monetize the impacts of 
these provisions.
    To take into consideration uncertainty and variation in the wages 
that EAD holders earn, all of the monetized costs rely on a lower and 
upper bound, benchmarked to a ``prevailing'' minimum wage and a 
national average wage, which generates a range. Specific costs related 
to the provisions are summarized in Table 5. For the provisions in 
which impacts could be monetized, the single midpoint figure for the 
range capturing a low and high wage rate is presented.\169\
---------------------------------------------------------------------------

    \169\ The populations reported in Table 1 reflect the maximum 
population that could be covered by each provision. Some of the 
populations that would incur monetized impacts are slightly 
different due to technical adjustments. It is noted that the maximum 
population is smaller than that in the NPRM baseline because in this 
final rule DHS will not apply any provisions of this rule to 
applications for employment authorization pending on the effective 
date. As such, the resulting cost estimates are slightly lower than 
were developed in the NPRM. In the NPRM the pending pool was 14,451 
at the time the data was obtained. The pending population at any 
point in time can vary due to many factors. In the NPRM, the pending 
population was not slated to pay the biometrics fee, hence the 
difference in cost in this final rule only accrue to the time and 
travel related costs of submitting biometrics. Based on an estimated 
12,805 persons in the pending pool who would submit biometrics under 
the original proposal, the difference in cost for the rule in the 
first year the rule will take effect at the low and upper wage 
bounds are $921,389 and $2,078,200, in order. DHS also removed 
qualitative cost discussion for pending EAD applicants who would not 
be subject to the criteria proposed on the NPRM.

[[Page 38601]]



                 Table 5--Summary of Costs and Transfers
------------------------------------------------------------------------
                                      Annual costs and transfers (mid-
         Provision summary                         point)
------------------------------------------------------------------------
Quantified:
    365-day EAD filing wait period  a. Population: 39,000.
     (for DHS affirmative asylum    b. Cost: $542.7 million (quantified
     cases and partial estimates     impacts for 39,000 of the 153,381
     for DHS referrals to DOJ).      total population).
                                    c. Reduction in employment tax
                                     transfers: $83.2 million
                                     (quantified impacts for 39,000 of
                                     the 153,381).
                                    d. Cost basis: Annualized
                                     equivalence cost.
                                    e. Summary: Lost compensation for a
                                     portion of DHS affirmative asylum
                                     cases who will have to wait longer
                                     to earn wages under the rule; nets
                                     out cost-savings for aliens who
                                     will no longer file under the rule;
                                     includes partial estimate of DHS
                                     referral cases to DOJ-EOIR. It does
                                     not include impacts for defensively-
                                     filed cases.
                                    e. DHS emphasizes that the costs of
                                     the rule in terms of lost or
                                     deferred labor readings will
                                     potentially depend on the extent of
                                     surplus labor in the labor market.
                                     In the current environment with
                                     COVID-19-related layoffs and
                                     unemployment, there is the
                                     potential that the impacts will be
                                     mainly transfers and less in terms
                                     of costs.
    365-day EAD filing wait period  a. Population: 114,381.
     (for the residual population). b. Cost: $2.39 billion (quantified
                                     impacts for the remaining 114,381
                                     of the 153,381 total population).
                                    c. Reduction in employment tax
                                     transfers: $366.2 million
                                     (quantified impacts for the
                                     remaining 114,381 of the 153,381).
                                    d. Cost basis: Annualized
                                     equivalence cost.
                                    e. Summary: Lost compensation for
                                     the population of approved annual
                                     EADs for which DHS does not have
                                     data to make a precise cost
                                     estimate. The costs reported are a
                                     maximum because the potential
                                     impact is based on the maximum
                                     impact of 151 days; in reality
                                     there will be lower-cost segments
                                     to this population and filing-cost
                                     savings as well.
    Biometrics requirement........  a. Population for initial and
                                     renewal EADs: 290,094.
                                    b. Cost: $36.3 million.
                                    c. Reduction in employment tax
                                     transfers: None.
                                    d. Cost basis: Annualized
                                     equivalence cost.
                                    e. Summary: For initial and renewal
                                     EADs, there will be time-related
                                     opportunity costs plus travel costs
                                     of submitting biometrics, as well
                                     as $85 fee for (c)(8) I-765 initial
                                     and renewal populations subject to
                                     the biometrics and fee
                                     requirements. A small filing time
                                     burden to answer additional
                                     questions and read associated form
                                     instructions in the I-765 is
                                     consolidated in this provision's
                                     costs.
    Eliminate recommended           a. Population: 1,930 annual.
     approvals.                     b. Cost: $13.9 million.
                                    c. Reduction in employment tax
                                     transfers: $2.13 million.
                                    d. Cost basis: Annualized
                                     equivalence cost.
                                    e. Summary: Delayed earnings and tax
                                     transfers that would have been
                                     earned for an average of 52
                                     calendar days earlier with a
                                     recommended approval.
    Terminate EADs if asylum        a. Population: 575 (current and
     application denied/dismissed    future).
     (DHS).                         b. Cost: $31.8 million.
                                    c. Reduction in employment tax
                                     transfers: $4.9 million.
                                    d. Cost basis: Maximum costs of the
                                     provision, which would apply to the
                                     first year the rule takes effect.
                                    e. Summary: Forgone earnings and tax
                                     transfers from ending EADs early
                                     for denied/dismissed DHS
                                     affirmative asylum applications.
                                     This change will affect EADs that
                                     are currently valid and EADs for
                                     affirmative asylum applications in
                                     the future that will not be
                                     approved. DHS acknowledges that as
                                     a result of this change, businesses
                                     that have hired such workers will
                                     incur labor turnover costs earlier
                                     than without this rule.
2. Unquantified:
    Clarify employment eligibility  a. Population: 13,000.
     under (c)(11) category for I-  b. Cost: Delayed/foregone earnings.
     765.                           c. Cost basis: N/A.
                                    d. Summary: DHS does not know how
                                     many of the actual population will
                                     apply for an EAD via the (c)(8) I-
                                     765, but the population would be
                                     zero at a minimum and 13,000 at a
                                     maximum, with a mid-point of 6,500.
                                     The population would possibly incur
                                     delayed earnings and tax transfers
                                     by being subject to the 365-day EAD
                                     waiting period (it is noted that
                                     this population would also incur
                                     costs under the biometrics
                                     provision, above), or lost earnings
                                     if they do not apply for a (c)(8)
                                     EAD.
    Criminal activity/illegal       DHS is unable to estimate the number
     entry bar.                      of aliens that would no longer be
                                     eligible to receive an EAD while
                                     their asylum applications are being
                                     adjudicated. Impacts would involve
                                     forgone earnings and potentially
                                     lost taxes.
    One-year filing deadline......  Some portion of the 8,326 annual
                                     filing bar referrals will no longer
                                     be eligible to receive an EAD while
                                     their asylum applications are being
                                     adjudicated. Impact would comprise
                                     deferred/delayed or forgone
                                     earnings and potentially lost
                                     taxes. DHS does not have data on
                                     filing bar cases referred to DOJ-
                                     EOIR.

[[Page 38602]]

 
    Terminate EADs if asylum        DOJ-EOIR has denied an average of
     application denied/dismissed    almost 15,000 asylum cases
     (DOJ-EOIR).                     annually; \170\ however, DHS does
                                     not have data on the number of such
                                     cases that have an EAD and are
                                     employed. Costs would involve
                                     forgone earnings and tax transfers
                                     for any such EADs that would be
                                     terminated earlier than they
                                     otherwise would, as well as forgone
                                     future earnings and tax transfers.
                                     DHS acknowledges that as a result
                                     of this change businesses that have
                                     hired such workers will incur labor
                                     turnover costs earlier than without
                                     this rule. Businesses unable to
                                     replace these workers will also
                                     incur productivity losses.
------------------------------------------------------------------------

    For those provisions  that affect the time an asylum applicant is 
employed, the impacts of this rule would include both distributional 
effects (which are transfers) and costs.\171\ The distributional 
impacts would fall on the asylum applicants who would be delayed in 
entering the U.S. labor force or who would leave the labor force 
earlier than under current regulations. They would be in the form of 
lost compensation (wages and benefits). A portion of this lost 
compensation might be transferred from asylum applicants to others that 
are currently in the U.S. labor force, or, eligible to work lawfully, 
possibly in the form of additional work hours or the direct and 
indirect added costs associated with overtime pay. A portion of the 
impacts of this rule would also be borne by companies that would have 
hired the asylum applicants had they been in the labor market earlier 
or who would have continued to employ asylum applicants had they been 
in the labor market longer, but were unable to find available 
replacement labor. These companies will incur a cost, as they will be 
losing the productivity and potential profits the asylum applicant 
would have provided. Companies may also incur opportunity costs by 
having to choose the next best alternative to the immediate labor the 
asylum applicant would have provided and by having to pay workers to 
work overtime hours. DHS does not know what this next best alternative 
may be for those companies. As a result, DHS does not know the portion 
of overall impacts of this rule that are transfers or costs, but 
estimates the maximum monetized impact of this rule in terms of 
delayed/lost labor compensation. If all companies are able to easily 
find reasonable labor substitutes for the positions the asylum 
applicant would have filled, they will bear little or no costs, so 
$4.459 billion (annualized at 7%) will be transferred from asylum 
applicants to workers currently in the labor force or induced back into 
the labor force (we assume no tax losses as a labor substitute was 
found). Conversely, if companies are unable to find reasonable labor 
substitutes for the position the asylum applicant would have filled 
then $4.459 billion 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. DHS estimates $682.5 million as the 
maximum decrease in employment tax transfers from companies and 
employees to the Federal Government.
---------------------------------------------------------------------------

    \170\ See https://www.justice.gov/eoir/page/file/1248491/download.
    \171\ 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.
---------------------------------------------------------------------------

    Because the biometrics requirement implemented in this rule is a 
cost to applicants and not a transfer, its minimum value of $27.08 
million is the minimum cost of the rule. The range of impacts described 
by these two scenarios, plus the consideration of the biometrics costs, 
are summarized in Table 6 below (Table 6A and 6B capture the impacts a 
3 and 7 percent rates of discount, respectively).

                                            Table 6A--Summary of Range of Monetized Annualized Impacts at 3%
                                                                      [Millions $]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Scenario: No replacement labor    Scenario: All asylum applicants      Primary
                                                                       found for asylum applicants        replaced with other workers   ----------------
                                                                   --------------------------------------------------------------------- (average of the
              Category                         Description                                                                                 highest high
                                                                                                                                          and the lowest
                                                                        Low wage         High wage         Low wage        High wage      low, for each
                                                                                                                                               row)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transfers:
    Transfers--Compensation.........  Compensation transferred                 $0.0             $0.0          $1,473.2         $4,459.0         $2,229.5
                                       from asylum applicants to
                                       other workers (provisions:
                                       365-day wait + end EADs
                                       early + end recommended
                                       approvals).
    Transfers--Taxes................  Lost employment taxes paid              225.5            682.4               0.0              0.0            341.2
                                       to the Federal Government
                                       (provisions: 365-day wait +
                                       end EADs early + end
                                       recommended approvals).
Costs:
    Cost Subtotal--Biometrics.......  Biometrics Requirements.....             27.1             45.5              27.1             45.5             36.3
    Cost Subtotal--Lost Productivity  Lost compensation used as             1,473.2          4,459.0               0.0              0.0          2,229.5
                                       proxy for lost productivity
                                       to companies (provisions:
                                       365-day wait + end EADs
                                       early + end recommended
                                       approvals).
                                                                   -------------------------------------------------------------------------------------

[[Page 38603]]

 
        Total Costs.................  ............................          1,500.2          4,504.5              27.1             45.5          2,265.8
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                            Table 6B--Summary of Range of Monetized Annualized Impacts at 7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Scenario: No replacement labor    Scenario: All asylum applicants      Primary
                                                                       found for asylum applicants        replaced with other workers   ----------------
                                                                   --------------------------------------------------------------------- (average of the
              Category                         Description                                                                                 highest high
                                                                                                                                          and the lowest
                                                                        Low wage         High wage         Low wage        High wage      low, for each
                                                                                                                                               row)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transfers:
    Transfers--Compensation.........  Compensation transferred                $0.00            $0.00          $1,473.3         $4,459.5         $2,229.7
                                       from asylum applicants to
                                       other workers (provisions:
                                       365-day wait + end EADs
                                       early + end recommended
                                       approvals).
    Transfers--Taxes................  Lost employment taxes paid              225.5            682.5                 0                0            341.2
                                       to the Federal Government
                                       (provisions: 365-day wait +
                                       end EADs early + end
                                       recommended approvals).
Costs:
    Cost Subtotal--Biometrics.......  Biometrics Requirements.....             27.1             45.5              27.1             45.5             36.3
    Cost Subtotal--Lost Productivity  Lost compensation used as             1,473.3          4,459.5               0.0              0.0          2,229.7
                                       proxy for lost productivity
                                       to companies (provisions:
                                       365-day wait + end EADs
                                       early + end recommended
                                       approvals).
                                                                   -------------------------------------------------------------------------------------
        Total Costs.................  ............................          1,500.4          4,505.0              27.1             45.5          2,266.1
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The two scenarios described above represent the estimated endpoints 
for the range of monetized impacts resulting from the provisions that 
affect the amount of time an asylum applicant is employed. However, DHS 
is aware that the outbreak of COVID-19 will likely impact these 
estimates in the short run.\172\ As discussed above, the analysis 
presents a range of impacts, depending on if companies are able to find 
replacement labor for the jobs asylum applicants would have filled. In 
April 2020, the reported unemployment rate increased by 10.3 percentage 
points to 14.7 percent.\173\ This marks the highest rate and the 
largest over-the-month increase in the history of the series 
(seasonally adjusted data are available back to January 1948). By 
comparison, the unemployment rate for the same month in 2019 was 
3.6%.\174\ DHS assumes that during the COVID-19 pandemic, with 
additional available labor nationally, companies are more likely to 
find replacement labor for the job the asylum applicant would have 
filled.\175\ Thus, in the short-run during the pandemic and the ensuing 
economic recovery, the lost compensation to asylum applicants as a 
result of this rule is more likely to take the form of transfer 
payments from asylum applicants to other available labor, than it is to 
be costs to companies for lost productivity because they were unable to 
find replacement labor. DHS notes that although the pandemic is 
widespread, the severity of its impacts varies by locality. DHS also 
notes that asylum applicants who have pending employment authorization 
might become employment authorized during the pandemic. Consequently, 
it is not clear to what extent the distribution of asylum applicants 
overlaps with areas of the country that will be more or less impacted 
by the COVID-19 pandemic. Accordingly, DHS cannot estimate with 
confidence to what extent the impacts will be transfers instead of 
costs.
---------------------------------------------------------------------------

    \172\ On March 13, 2020, the President declared that the COVID-
19 outbreak in the United States constitutes a national emergency. 
See `Proclamation on Declaring a National Emergency Concerning the 
Novel Coronavirus Disease (COVID-19) Outbreak,'' available at 
https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/.
    \173\ Department of Labor, Bureau of Labor Statistics, The 
Employment Situation--April 2020. Available at: https://www.bls.gov/news.release/archives/empsit_05082020.pdf.
    \174\ Department of Labor, Bureau of Labor Statistics, The 
Employment Situation--April 2020, Employment Situation Summary Table 
A. Household data, seasonally adjusted. Available at: https://www.bls.gov/news.release/archives/empsit_05082020.pdf.
    \175\ The Congressional Budget Office estimates the unemployment 
rate is expected to average close to 14 percent during the second 
quarter, See: CBO's Current Projections of Output, Employment, and 
Interest Rates and a Preliminary Look at Federal Deficits for 2020 
and 2021, https://www.cbo.gov/publication/56335, April 24, 2020.
---------------------------------------------------------------------------

    DHS's assumption that all asylum applicants with an EAD are able to 
obtain employment (discussed in further detail later in the analysis), 
also does not reflect impacts from the COVID-19 pandemic. It is not 
clear what level of reductions the pandemic will have on the ability of 
EAD holders to find jobs (as jobs are less available), or how DHS would 
estimate such an impact with any precision given available data. 
Consequently, the ranges projected in this analysis regarding lost 
compensation are expected to be an overestimate, especially in the 
short-run.
    As required by Office of Management and Budget (OMB) Circular A-4, 
Table 7 presents the prepared A-4 accounting statement showing the 
impacts associated with this regulation:

[[Page 38604]]



                                                          Table 7--OMB A-4 Accounting Statement
                                                                   [$ millions, 2019]
                                                             [Period of analysis: 2020-2029]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                     Primary  estimate
                  Category                   --------------------------------     Minimum         Maximum      Source  citation  (RIA,  preamble,  etc.)
                                                                                 estimate        estimate
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits:
    Monetized Benefits......................            (7%)             N/A             N/A             N/A  RIA.
                                                        (3%)             N/A             N/A             N/A
                                             ----------------------------------------------------------------
    Annualized quantified, but un-monetized,                N/A                          N/A             N/A  RIA.
     benefits.
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Unquantified Benefits...................   The benefits potentially realized by the rule are qualitative  RIA.
                                                     and accrue to a streamlined system for employment
                                                 authorization for asylum seekers that will reduce fraud,
                                                 improve overall integrity and operational efficiency, and
                                               prioritize aliens with bona fide asylum claims. These impacts
                                               stand to provide qualitative benefits to asylum seekers, the
                                                    communities in which they reside and work, the U.S.
                                                Government, and society at large. The rule aligns with the
                                               Administration's goals of strengthening protections for U.S.
                                               workers in the labor market. The biometrics requirement will
                                                       enhance identity verification and management.
--------------------------------------------------------------------------------------------------------------------------------------------------------
COSTS:
    Annualized monetized costs (discount                (7%)        $2,266.1          $27.08        $4,505.0  RIA.
     rate in parenthesis).                              (3%)        $2,265.8          $27.08        $4,504.5  RIA.
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Annualized quantified, but un-monetized,                N/A                          N/A             N/A  RIA.
     costs.
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Qualitative (unquantified) costs........    In cases where companies cannot find reasonable substitutes   RIA.
                                                 for the labor the asylum applicants would have provided,
                                                 affected companies would also lose profits from the lost
                                               productivity. In all cases, companies would incur opportunity
                                                  costs by having to choose the next best alternative to
                                              immediately filling the job the pending asylum applicant would
                                                 have filled. There may be additional opportunity costs to
                                                              employers such as search costs.
                                                Estimates of costs that will involve DOJ-EOIR defensively-
                                               filed asylum applications and DHS-referrals could not be made
                                                due to lack of data. Potential costs would involve delayed/
                                                               deferred or forgone earnings.
                                                There would also be delayed or forgone labor income for EAD
                                                  applicants impacted by the criminal and one-year filing
                                                deadline provisions, renewal applicants, transfers from the
                                                 (c)(11) group, and filing bar cases, all of whom would be
                                                 subject to some of the criteria being implemented in this
                                                rule. In addition, such impacts could also affect those who
                                                   would be eligible currently for an EAD, or have such
                                              eligibility terminated earlier, but would be ineligible for an
                                                EAD under the rule. Delaying and/or eliminating employment
                                                 authorization eligibility would have a negative impact on
                                               asylum seekers' welfare. The removal or delay of some workers
                                               regarding employment could have an adverse effect in terms of
                                                                  their health insurance.
--------------------------------------------------------------------------------------------------------------------------------------------------------
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%)        $2,229.7           $0.00        $4,459.5  RIA.
     compensation.                                      (3%)        $2,229.5           $0.00        $4,459.0
    From whom to whom?......................     Compensation transferred from asylum applicants to other     RIA.
                                                 workers (provisions: 365-day wait + end EADs early + end
                                                  recommended approvals). Some of the deferred or forgone
                                                  earnings could be transferred from asylum applicants to
                                              workers in the U.S. labor force or 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; these could
                                                 involve burdens to asylum applicants' personal private or
                                                  familial support system, but could also involve public,
                                                private, or charitable benefits-granting agencies and non-
                                                            governmental organizations (NGOs).
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Annualized monetized transfers: taxes...            (7%)          $341.2           $0.00          $682.5  RIA.
                                                        (3%)          $341.2           $0.00          $682.4
--------------------------------------------------------------------------------------------------------------------------------------------------------
    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 (provisions: 365-
                                                day wait + end EADs early + end recommended approvals) that
                                                                    are not quantified.
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 38605]]


 
                                                                                                                        Source citation  (RIA, preamble,
              Category                                                    Effects                                                    etc.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Effects on state, local, and/or       DHS does not know how many workers will be removed from the labor force due to   RIA.
 tribal governments.                   this rule. There may also be a reduction in state and local tax revenue,
                                       including state and local income tax revenue. Budgets and assistance networks
                                       that provide benefits to asylum seekers could be impacted negatively if asylum
                                       applicants request additional support.
Effects on small businesses.........  This rule does not directly regulate small entities, but has indirect costs on   RFA.
                                       small entities. DHS acknowledges that ending EADs linked to denied DHS
                                       affirmative asylum claims and EADs linked to denied asylum cases under DOJ-
                                       EOIR purview will result in businesses that have hired such workers incurring
                                       labor turnover costs earlier than without this rule. Such small businesses may
                                       also incur costs related to a difficulty in finding workers that may not have
                                       occurred without this rule.
Effects on wages....................  None...........................................................................  RIA.
Effects on growth...................  None...........................................................................  RIA.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As will be explained in greater detail later, the benefits 
potentially realized by the rule are qualitative. This rule will reduce 
the incentives for aliens to file frivolous, fraudulent, or otherwise 
non-meritorious asylum applications intended primarily to obtain 
employment authorization or other forms of non-asylum-based relief from 
removal, thereby allowing aliens with bona fide asylum claims to be 
prioritized. A streamlined system for employment authorization for 
asylum seekers will reduce fraud and improve overall integrity and 
operational efficiency. DHS also believes these administrative reforms 
will encourage aliens to follow the lawful process to immigrate to the 
United States.\176\ These effects stand to provide qualitative benefits 
to asylum seekers, communities where they live and work, the U.S. 
government, and society at large.
---------------------------------------------------------------------------

    \176\ The rule may also provide less incentive for those 
pursuing unauthorized employment in the United States to use the 
asylum application process to move into authorized employment 
status.
---------------------------------------------------------------------------

    The rule also aligns with the Administration's goals of 
strengthening protections for U.S. workers in the labor market. Several 
employment-based visa programs require U.S. employers to test the labor 
market, comply with recruiting standards, agree to pay a certain wage 
level, and agree to comply with standards for working conditions before 
they can hire an alien to fill the position. These protections do not 
exist in the (c)(8) EAD process. While this rule will not implement 
labor market tests for the (c)(8) EAD process, it will put in place 
mechanisms to reduce fraud and deter those without bona fide claims for 
asylum from filing applications for asylum primarily to obtain 
employment authorization or other, non-asylum-based forms of relief 
from removal. DHS believes these mechanisms will protect U.S. workers.
    The biometrics requirement will provide a benefit to the U.S. 
government by enabling DHS to know with greater certainty the identity 
of aliens requesting EADs in connection with an asylum application. The 
biometrics requirement also will allow DHS to conduct criminal history 
background checks to confirm the absence of a disqualifying criminal 
offense, to vet the applicant's biometrics against government databases 
(for example, FBI databases) to determine if he or she matched any 
criminal activity on file, to verify the applicant's identity, and to 
facilitate card production.
    Along with the changes summarized above and discussed in detail in 
the preamble and regulatory impact sections of this rule, DHS will 
modify and clarify existing regulations dealing with technical and 
procedural aspects of the asylum interview process, USCIS authority 
regarding asylum, applicant-caused delays in the process, and the 
validity period for EADs. DHS discusses these provisions in the 
unquantified impacts section of the analysis.

A. Background and Purpose of Rule

    The purpose of this final rule is to reform, improve, and 
streamline the asylum process, so that those with bona fide asylum 
claims can be prioritized and extended protection, including immediate 
employment authorization based on an approved asylum application. The 
provisions seek to reduce incentives to file frivolous, fraudulent, or 
otherwise non-meritorious asylum applications and other forms of non-
asylum based relief primarily to obtain employment authorization. As is 
detailed in the preamble, it has been decades since significant reforms 
were made to the asylum process, and there have been no major statutory 
changes to the asylum provisions to address the current aspects of the 
immigration laws that incentivize illegal immigration to the United 
States and frivolous asylum filings.
    DHS has seen a surge in illegal immigration into the United States, 
and USCIS currently faces a critical asylum backlog that has crippled 
the agency's ability to timely screen and vet applicants awaiting a 
decision.
    As a result of regulatory review required by E.O. 13767, Border 
Security and Immigration Enforcement Improvements, DHS identified the 
regulations that were inconsistent with this order and is revising them 
in this rule. While working with Congress on legal reforms to deter 
frivolous, fraudulent, and non-meritorious filings, DHS is also taking 
administrative steps to improve the asylum application process, 
pursuant to the Secretary's authorities over immigration policy and 
enforcement. The broad goal is to minimize abuse of the system by 
inadmissible or removable aliens who are not eligible for asylum, but 
who seek to prolong their stay in the United States. The changes will 
remove incentives for aliens to cross the border for economic reasons 
and better allow DHS to process bona fide asylum seekers in an 
expedited manner. As a result, bona fide asylum applications would be 
adjudicated timelier, and the significant benefits associated with 
grants of asylum would be realized sooner.\177\
---------------------------------------------------------------------------

    \177\ A grant of asylum allows an alien to remain in the United 
States, creates a path to lawful permanent residence and 
citizenship, and allows for certain family members to obtain lawful 
immigration status. See INA sec. 208(b)(3) (allowing derivative 
asylum for asylee's spouse and unmarried children); INA sec. 
208(c)(1) (prohibiting removal or return of an alien granted asylum 
to alien's country of nationality, or in the case of a person have 
no nationality, the country of last habitual residence); INA sec. 
209(b) (allowing adjustment of status of aliens granted asylum); INA 
sec. 316(a) (describing requirements for naturalization of lawful 
permanent residents). An asylee is authorized to work in the United 
States and may receive financial assistance from the Federal 
Government. See INA sec. 208(c)(1)(B) (authorizing aliens granted 
asylum to engage in employment in the United States); 8 U.S.C. 
1612(a)(2)(A), (b)(2)(A), 1613(b)(1) (describing eligibility for 
Federal Government assistance).

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

[[Page 38606]]

    Information and data pertinent to the ensuing analysis is provided. 
A thorough qualitative discussion of the asylum application and related 
employment authorization application process is available in the 
preamble. Table 8 provides data concerning DHS affirmative asylum 
filings via Form I-589 for the five-year span of fiscal years 2014-
2018.\178\
---------------------------------------------------------------------------

    \178\ The data in Table 8 are obtained as follows. For the 
receipts, approvals, denials, and end of year pending pool counts, 
the data are provided by the USCIS Office of Performance and Quality 
(OPQ), and are reported publicly under ``All USCIS Application and 
Petition Form Types'' for the end of each respective fiscal year, 
accessibale at: https://www.uscis.gov/tools/reports-studies/immigration-forms-data?topic_id=23035&field_native_doc_issue_date_value%5Bvalue%5D%5Bmonth%5D=&field_native_doc_issue_date_value_1%5Bvalue%5D%5Byear%5D=&combined=&items_per_page=100&=Apply+Filter. The other data in Table 8 
for FY 2014-2017 are reported publicly at ``Affirmative Asylum 
Decisions FY09-FY18 Q2,''at https://www.uscis.gov/sites/default/files/Affirmative_Asylum_Decisions_FY09-FY18_Q2.pdf. For the full FY 
2018, the USCIS RAIO office provided the data from workflow 
statistics data. The data were good as of April 1, 2019.

                                        Table 8--USCIS Form I-589 Affirmative Asylum Petition Data, FY 2014-2018
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                          Referrals-DOJ-
                           FY                                Receipts        Approvals        Denials      Admin. close        EOIR        Pending pool
--------------------------------------------------------------------------------------------------------------------------------------------------------
2014....................................................          56,912          10,811             582           2,008          15,537          61,479
2015....................................................          84,236          14,344             365           3,107          19,475         108,725
2016....................................................         115,888           9,538             131           3,830          16,186         194,986
2017....................................................         142,760          13,105             116           5,675          28,928         289,835
2018....................................................         106,041          17,537             726           9,436          51,680         319,202
                                                         -----------------------------------------------------------------------------------------------
    5-year total........................................         505,837          65,335           1,920          24,056         131,806  ..............
    Average.............................................         101,167          13,067             384           4,811          26,361         194,845
--------------------------------------------------------------------------------------------------------------------------------------------------------

    DHS administratively closes 4.8 percent of receipts.\179\ More 
significantly, DHS refers a large share of cases to DOJ-EOIR, and the 
average referral rate is 26.1 percent. Measured against receipts, the 
average approval and denial rates are 12.9 percent and .4 percent, 
respectively. However, if the basis is recalibrated to ``adjudicated 
cases''--the sum of approvals, denials, referrals (interviewed), and 
filing bar referrals--more salient approval and denial rates of 35.9 
and 1.1 percent, respectively, are obtained.\180\ These rates are more 
tractable because they remove the impact of administrative closures, 
referrals that did not involve an USCIS interview, and most 
importantly, the effect embodied in the growth of the pending (hence 
not yet processed cases) pool. Against ``adjudicated cases,'' DHS 
referred more than three-fifths (63 percent) of asylum cases initially 
filed ``affirmatively'' to DOJ-EOIR, and this share does not include 
non-interview referrals. As it relates to the total of referrals, on 
average the share attributed to interview, filing bar, non-interview 
cases are 55.4, 31.6, and 13.1percent, respectively.\181\
---------------------------------------------------------------------------

    \179\ USCIS administratively closes I-589s where no decision can 
be made on the application by USCIS for various reasons, including, 
but not limited to: (1) Lack of jurisdiction over the I-589 where 
the applicant is already in removal proceedings before EOIR and not 
a UAC (in those cases, the case is administratively closed but no 
NTA is issued since the person is already in proceedings); (2) an 
application is abandoned, withdrawn, or the applicant fails to show 
up for the interview or biometric services appointment after 
rescheduling options are exhausted (in those cases, no decision is 
made on eligibility but an NTA would be issued if the person is out 
of status and is still in the U.S.); (3) the applicant has a final 
administrative removal or ICE has reinstated a prior removal order 
(in those cases, the I-589 would be administratively closed and the 
person would be referred for a reasonable fear screening).
    \180\ It is noted that the rate of administrative closures and 
total referrals can vary slightly from the percentage reported here. 
The data is stored and collated in several databases and systems. 
Some search queries can collate some un-interviewed cases with 
administrative closures based on specific action codes assigned to 
some cases, for various reasons.
    \181\ The adjudicated basis also excludes some other minor 
categories such as ``dismissals,'' which comprise around a dozen 
cases each year. It is noted that the definitional basis for 
adjudicated cases is the same as (or similar to with minor 
adjustments) the basis that DHS uses in much of its public facing 
and official reporting on asylum. Relevant calculations are all 
based on the five-year averages: The FY 2014-2018 average of 
``adjudicated'' cases, as defined in the text, is 36,368. Dividing 
the annual average approvals of 13,067 by 36,368 yields the approval 
rate of 35.9 percent. Dividing the annual average denials of 384 by 
36,368 yields the denial rate of 1.1 percent. The referral rate 
(excluding non-interviewed cases) is obtained by dividing the sum of 
annual average filing bar and interview referrals, of 22,972 by 
36,268, which yields 63.1 percent. The annual average of total 
referrals is 26,361. Counts for interview, filing bar, and non-
interview cases, in order of, are 14,592, 8,326, and 3,444. Dividing 
each of the former by the latter yield 55.4, 31.6, and 13.1 percent, 
respectively.
---------------------------------------------------------------------------

    In Table 8, the average across the five-year period is provided. It 
is noted that the pending pool of applications has grown substantially, 
as is evidenced by the fact that the 2017 and 2018 figures for end-of-
year pending pool far exceeded the overall five-year average. For 
receipts, there has also been substantial growth, though filings 
declined markedly in 2018 from 2017.
    Data pertaining to DOJ-EOIR defensively-filed asylum cases was 
obtained and relevant data are collated in Table 9.\182\
---------------------------------------------------------------------------

    \182\ Data and information on EOIR asylum cases are available 
publicly from the EOIR ``Workload and Adjudication Statistics'' 
portal, at the following report, https://www.justice.gov/eoir/page/file/1248491/download.

                                             Table 9--DOJ-EOIR Asylum Caseload and Decisions (FY 2014--2018)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                               USCIS
                   FY                      referrals to    Defense filed    Total filed    Cases granted   Cases denied    Other outcome   Admin. closed
                                             DOJ-EOIR
--------------------------------------------------------------------------------------------------------------------------------------------------------
2014....................................          16,258          31,196          47,454           8,562           9,292          10,418           9,540
2015....................................          17,289          46,203          63,492           8,113           8,847          11,018          15,420

[[Page 38607]]

 
2016....................................          12,718          69,349          82,067           8,684          11,737          12,883          21,623
2017....................................          22,143         121,418         143,561          10,539          17,632          14,745          10,889
2018....................................          49,118         111,887         161,005          13,161          26,594          22,328           2,098
                                         ---------------------------------------------------------------------------------------------------------------
    5-year total........................         117,526         380,053         497,579          49,059          74,102          71,392         117,526
    Average.............................          23,505          76,011          99,516           9,812          14,820          14,278          23,505
    share of completions................  ..............  ..............  ..............           15.7%           23.7%           22.9%           37.7%
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The first data column in Table 9 captures DHS referrals to DOJ-
EOIR, and generally corresponds with data in the fifth data column of 
Table 8.\183\ As the data indicate, asylum filings at DOJ-EOIR have 
also increased sharply over the five-year period, noting that the 
increase in defensive filings over the last three years has been 
particularly strong. Defensive cases also comprise the bulk of filings, 
more than tripling affirmative filings on average. Over the entire 
five-year period there were 312,079 total completions, noting that this 
tally comprises grants, denials, cases that were administratively 
closured, and ``others.'' The latter comprises defensively-filed asylum 
applications that were abandoned, not adjudicated, or withdrawn.
---------------------------------------------------------------------------

    \183\ DHS Asylum cases referred to DOJ-EOIR over the period 
(Table 8) on average are a higher by about 13 percent on average, 
than the DOJ-EOIR Affirmative asylum filings. The primary reason is 
UAC cases. DHS counts them as referrals, but, since they are already 
in EOIR's caseload as an NTA has been filed in these cases, USCIS 
does not enter them into CASE-ISS and transfer the application 
through the usual referral process. EOIR counts them as defensively-
filed asylum cases as opposed to affirmative asylum cases that have 
been referred.
---------------------------------------------------------------------------

    Table 10 provides data on (c)(8) I-765 filings, and DHS notes that 
these apply to both DHS affirmative filings (including referrals to 
DOJ-EOIR) and those filings connected to defensively-filed asylum 
cases.

                Table 10--DHS I-765(c)(8) Filing Data for DHS Affirmative Filings (Including Referrals to DOJ-EOIR), and Defensive Cases
                                                                     [FY 2014-2018]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Initials                                        Renewals
                           FY                            -----------------------------------------------------------------------------------------------
                                                             Receipts         Approve          Deny          Receipts         Approve          Deny
--------------------------------------------------------------------------------------------------------------------------------------------------------
2014....................................................          62,169          48,555          10,747          47,103          42,917           2,539
2015....................................................         106,030          85,501          13,269          72,559          63,548           3,213
2016....................................................         169,970         152,269          14,446         128,610         115,536           4,166
2017....................................................         261,782         234,053          21,197         212,255         166,186           4,869
2018....................................................         262,965         246,525          29,057          62,026          90,974           4,675
                                                         -----------------------------------------------------------------------------------------------
    5-year total........................................         862,916         766,903          88,716         522,553         479,161          19,462
    Average.............................................         172,583         153,381          17,743         104,511          95,832           3,892
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As Table 10 indicates, the number of employment authorization 
applications filed under the (c)(8) eligibility category has increased 
steadily since 2014, although the trend appears to have levelled off in 
2018 (it is too early to tell if this will continue) at a historically 
high level. Over the entire period, 88.9percent of initial filings for 
employment authorization were approved. There is also a relatively high 
rate of renewal filings, and 62.5 percent of initial approvals were 
followed by an approved renewal.\184\
---------------------------------------------------------------------------

    \184\ Relevant calculations: for approval rate, 153,381 average 
approvals/172,583 average receipts = .889, and for renewal rate, 
95,832 average renewals/153,381 initial approvals = .625. Both 
decimals are rounded and multiplied by 100.
---------------------------------------------------------------------------

    DHS obtained and performed analysis on a data set capturing a 
portion of (c)(8) Form I-765 information that covers principal 
applicants and dependents who also filed an I-589 Form with DHS (in 
other words, DHS affirmative cases, including DOJ-EOIR referrals), from 
2014 through 2018.\185\ Details and caveats concerning this data set 
are dealt with in detail in ensuing discussion of the costs of the 365 
EAD filing time wait. Based on analysis of this data, several time-
centered variables are developed that are relevant to the forthcoming 
analysis. These indicators are produced and displayed in Table 11.
---------------------------------------------------------------------------

    \185\ The (c)(8) I-765 data was provided by the USCIS Office of 
Performance and Quality (OPQ) from file tracking data (data accessed 
on Jan. 19, 2019).

[[Page 38608]]



         Table 11--Calculated Time Intervals for DHS Affirmative Filings (Including DOJ-EOIR Referrals)
                                      [Average calendar days, FY 2014-2018]
----------------------------------------------------------------------------------------------------------------
                                                                   I-589 process
                                       I-589        I-765(c)(8)    time for DHS   Time between I-      I-589
                                    affirmative    process time     affirmative     589 filing      affirmative
               FY                  filing to I-         for        cases (excl.    with DHS and    filing to I-
                                     765(c)(8)      affirmative      DOJ-EOIR       referral to      765(c)(8)
                                      filing           cases         referral        DOJ-EOIR        approval
                                     interval                         cases)                         interval
----------------------------------------------------------------------------------------------------------------
2014............................             223              83             820             590             307
2015............................             228              84             812             737             312
2016............................             231              68             537             476             298
2017............................             210              67             380             278             277
2018............................             181              43             190              84             223
    5-Yr Average................             215              69           * N/A           * N/A             283
----------------------------------------------------------------------------------------------------------------
* DHS does not show a 5-year average for these time intervals because they are directly affected by the change
  from FIFO to LIFO processing.

    The data presented in Table 11 capture average calendar days.\186\ 
The `I-589 process time' reflects the filing time to decision for DHS 
affirmative cases only, as DHS does not have data on I-589 process time 
for cases referred to DOJ-EOIR. The following column captures the 
average time interval between when an I-589 was filed with DHS and when 
it was referred to DOJ-EOIR. The final column captures the average time 
interval between when an I-589 was filed with DHS and a (c)(8) I-765 
was approved. As is readily seen, there have been substantial declines 
in all of the intervals.
---------------------------------------------------------------------------

    \186\ The final data column captures the important ``wait'' 
time, between the filing date of the I-589 asylum petition and the 
approval of a (c)(8) I-765. This interval captures the amount of 
time an individual has between filing for asylum and being able to 
work and earn labor income. This metric is not exact though, as once 
a favorable decision is made concerning the EAD application, it 
takes some time to finalize the adjudication and send the approval 
notice.
---------------------------------------------------------------------------

    Before developing the general and provision-specific populations 
that the rule could impact, a final data element is provided. In 
January 2018, USCIS reinstituted its LIFO scheduling priority for 
asylum applications. DHS partitioned out LIFO cases starting after 
January 2018 until the end of January 2019 to capture a full calendar 
year of time. The mean processing time was 166 days, which is even 
lower than the 190-day average for DHS adjudicated cases displayed in 
Table 11 for the fiscal year 2018. Note this means that the average 
affirmatively filed asylum application completed by USCIS was decided 
in 166 days in 2018, which is less than the proposed 365-day wait 
period to apply for employment authorization.

B. Population

    In this section, the baseline population estimates are conducted 
for the rule in general and each specific provision. The term 
``baseline'' applies to the maximum population that the rule could 
involve. However, an important consideration in this regard is that 
there could be feedback from one provision that affects the baseline 
population. In the ensuing section on costs, the baseline figures will 
be tuned and modified to reflect the specific populations that could be 
impacted by the provisions. These adjusted populations will be the ones 
incurring specified cost impacts.
    The final rule requires aliens who file for an EAD under the (c)(8) 
asylum category to submit biometrics and pay the $85 biometric services 
fee. This biometrics requirement is the encompassing provision that 
captures the largest population under the rule. There will also be a 
small burden increase associated with the Form I-765. Asylum applicants 
filing for employment authorization under (c)(8) will be required to 
attend a biometric services appointment and will also need to answer 
new, additional questions on the form relating to new eligibility 
requirements, and read the associated instructions. DHS estimates that 
the biometric services appointment will add an additional 1 hour and 10 
minutes, while reading the instructions and answering the questions 
will add an estimated 15 minutes to the overall Form I-765 time burden 
for this category of filers. The encompassing population is the average 
of 172,583 initial filers (Table 10) would incur the small forms-
centered time burden and biometrics requirement. In addition, current 
EAD holders who file for renewals would also submit biometrics and pay 
the $85 biometric services fee. Currently, initial (c)(8) I-765 filers 
do not pay the I-765 filing fee, but renewal filers do, and this rule 
does not suggest a change to the protocol. The annual average renewal 
(c)(8) I-765 filing population is 104,511 (Table 10).
    The final rule requires all asylum applicants to wait 365 calendar 
days before filing for, and being granted, an initial EAD. Currently, 
applicants have a 150-day waiting period before they can file for an 
initial (c)(8) EAD. However, applicants whose initial EAD applications 
are denied would not be affected, and renewal EADs would not be 
affected by the 365-day waiting period. Hence, the baseline population 
for the 365-calendar-day waiting period provision is the average number 
of initial (c)(8) I-765 approvals from FY 2014-2018, which is 153,381 
(Table 10).
    DHS is eliminating the preferential category of recommended 
approvals for asylum, under which an asylum applicant can file an EAD 
request upon initial favorable review by an asylum officer, prior to 
completion of all background, security, and related checks. Currently, 
aliens who have received a notice of recommended approval are able to 
request employment authorization ahead of the waiting period for those 
with pending asylum applications. From FY 2014 to FY 2018, DHS issued 
15,359 recommended approvals, or 3,072 on average annually. This 
population will be subject to the final rule.
    The final rule makes any alien who entered or attempted to enter 
the United States illegally ineligible for a discretionary EAD, absent 
mitigating circumstances discussed in the preamble. DHS does not know 
how many persons would have been subject to this provision in the past, 
and cannot determine this population going forward. This rule will also 
bar any alien who has been convicted of or charged with a serious crime 
from eligibility for a discretionary EAD, with

[[Page 38609]]

some exceptions, as is discussed in detail in the preamble. DHS does 
not know how many persons would have been subject to this provision in 
the past and cannot determine this sub-population going forward. While 
individual adjudicative and security-related records can capture 
evidence and factors related to criminal activity, such information is 
not available in a dataset that can be queried for the requisite type 
of analysis and estimation needed.
    DHS will terminate an alien's employment authorization connected to 
affirmative asylum applications on the date the asylum application is 
denied or dismissed by USCIS. Currently, such EADs terminate within 60 
days after a USCIS asylum officer denies the application or on the date 
of the expiration of the EAD, whichever is longer. DHS analysis reveals 
that about 215 EADs were approved annually on average concomitant to 
denied DHS affirmative asylum claims; as of the present write-up, 360 
such EADs are valid. Eliminating EADs linked to DHS affirmative asylum 
denials will end the validity of those EADs earlier than they otherwise 
end.
    DHS is revising its regulations prescribing when employment 
authorization terminates following the denial of an asylum application 
by an IJ or BIA. DHS cannot determine how many DOJ-EOIR cases (either 
via DHS referral or defensive) apply to either the annual or existing 
population because DHS does not have granular data on DOJ-EOIR cases 
that would facilitate analysis of EADs. The employment authorization 
will continue for 30 days following the date that an IJ denies an 
asylum application to allow for a possible appeal of the denial to the 
BIA. If the alien files a timely appeal of the denied asylum claim with 
the BIA, employment authorization will continue through the BIA appeal. 
Currently, such EADs are allowed to naturally expire according to the 
terms of their EAD, unless the applicant seeks administrative or 
judicial review.
    DHS will bar from eligibility for employment authorization aliens 
who failed to file for asylum within one year of their last arrival in 
the United States, as required by law, if an asylum officer or IJ 
determines that an exception to the one-year filing bar does not apply. 
This bar would not apply to UACs. From FY 2014 to FY 2018, DHS referred 
41,628 cases to DOJ-EOIR based on the one-year filing bar, for an 
annual average of 8,326.
    The final rule seeks to clarify that aliens who are paroled from 
custody after receiving a positive credible fear or reasonable fear 
determination are not eligible to seek immediate employment 
authorization under 8 CFR 274a.12(c)(11), although, historically, USCIS 
has granted many of these requests. Aliens could still file under the 
(c)(8) category, if eligible. However, they will be subject to the 365-
day wait period. From FY 2014 to FY 2018, an average of 13,000 
applications sought employment authorization through the (c)(11) 
category. However, DHS is unaware how many will apply for an EAD under 
8 CFR 274a.12(c)(8) and would meet this rule's eligibility 
requirements.
    Table 12 presents a summary of the populations that could be 
affected by this rule.

    Table 12--Summary of Asylum EAD Populations Under the Final Rule
                                [Annual]
------------------------------------------------------------------------
  Abbreviated provision (description)          Population estimate
------------------------------------------------------------------------
a. I-765(c)(8) initial filers--          172,583.
 biometrics.
b. I-765(c)(8) renewal filers--          104,511.
 biometrics.
c. Enact 365-day EAD filing wait period  153,381.
d. Eliminate recommended approvals.....  3,072.
e. Bar criminals from obtaining EADs...  Unknown.
f. End EADs for denied/dismissed asylum  1. DHS affirmative = 215
 claims.                                  annually and 360 currently
                                          valid.
                                         2. Affirmative referrals to DOJ-
                                          EOIR = Unknown.
                                         3. DOJ-EOIR defensive =
                                          Unknown.
g. Bar for illegal entry into the U.S..  Unknown.
h. One-year asylum filing bar..........  8,326.
i. Clarify(c)(11) I-765 eligibility....  13,000.
                                        --------------------------------
    Total final rule population          290,094.
     (maximum).
------------------------------------------------------------------------

    In order to derive the total population potentially impacted by the 
rule, we add the annual flow volumes of the encompassing current 
biometrics (and time burden) population of 172,583 and the renewal 
filing volume of 104,511, which total to 277,094. To this sub-total, 
adding the potential 13,000 (c)(11) filers yields 290,094, which is the 
encompassing population. Since the other sub-populations collated in 
Table 12 are, by definition, (c)(8) I-765 filers, we do not add them to 
the flow volume, to safeguard against double-counting. But for the 
first year, the expected annual population of 290,094 is annotated the 
360 existing EADs that are connected to denied affirmative asylum 
claims that could be ended early. When added to the encompassing 
population expected annual flow volume, yields a maximum population of 
290,454, which could be expected in the first year the rule takes 
effect. Starting in year two, the population would expectedly revert to 
the annualized flow volume of 290,094.
    Having estimated the general population subject to the rule and the 
sub-populations germane to the specific provisions, DHS next conducts 
the economic impact assessment, noting, as was done in the introduction 
to this section, that the populations reported above are adjusted for 
technical considerations regarding the effects.\187\
---------------------------------------------------------------------------

    \187\ Preliminary data revisions indicate that the (c)(8) I-765 
filings and approvals in 2018 and 2017 could be higher than reported 
herein (Table 10). Finalized adjustments to the populations based on 
revised and validated data will be made at the appropriate stage of 
final rule development.
---------------------------------------------------------------------------

C. Transfers, Costs and Benefits of This Rule

1. Costs
    This section will be parsed into three modules. In Module 1, some 
key assumptions that will apply to multiple provisions are established. 
Module 2 develops quantitative costs and transfers for relevant 
provisions, while Module 3

[[Page 38610]]

covers costs and transfers that are not amenable to quantification.
Module 1. Data and Assumptions
    As was mentioned in the ``Population'' section above, DHS obtained 
a data set capturing (c)(8) I-765 filing data for initial applicants 
(this includes EAD filing data for both affirmative and defensive 
asylum applicants). These data include a large number of variables. DHS 
also obtained asylum application data for affirmatively-filed asylum 
applications, and integrated elements of the two data sets to capture 
information on affirmative asylum applicants who also filed for an EAD. 
However, DHS does not have a way to match decisions for cases 
adjudicated by an IJ with EAD data. Our analysis is based on this large 
scale data set that captured numerous variables important to the 
analysis. Several key assumptions and foundations apply across multiple 
provisions, which, in favor of brevity and readability, are introduced 
up front and only discussed hereafter where necessary.
    For the provisions that would delay or prohibit an asylum applicant 
from earning employment authorization, the impacts of this rule would 
include both distributional effects (which are transfers) and costs. 
These distributional impacts would fall to the EAD holders in the form 
of lost or delayed compensation (wages and benefits). A portion of this 
lost compensation would be transferred from these aliens to others that 
are currently in the U.S. labor force, possibly in the form of 
additional work hours or overtime pay. A portion of the impacts of this 
rule would also be costs borne by companies that would have hired the 
asylum applicants had they been in the labor market earlier, but were 
unable to find available replacement workers. 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. As 
a result, DHS 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). 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. DHS uses the lost compensation 
to asylum applicants as a measure of the overall impact of the 
provisions that would delay or prohibit an asylum applicant from 
obtaining employment authorization--either as distributional impacts 
(transfers) or as a proxy for businesses' cost for lost productivity.
    Furthermore, in instances where a company cannot hire replacement 
labor for the position the asylum applicant would have filled, there 
may be tax losses to the government. It is difficult to quantify income 
tax impacts because individual tax situations vary widely, but DHS 
estimates the potential reduction in employment taxes, namely Medicare 
and Social Security, which have a combined tax rate of 7.65 percent 
(6.2 percent and 1.45 percent, respectively).\188\ With both the 
employee and employer not paying their respective portion of Medicare 
and Social Security taxes, the total estimated reduction in tax 
transfer payments from employees and employers to Medicare and Social 
Security is 15.3 percent.\189\ We will rely on this total tax rate 
where applicable. DHS is unable to quantify other tax losses, such as 
for federal income taxes and state and local taxes.
---------------------------------------------------------------------------

    \188\ 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. 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.>
    \189\ 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.
---------------------------------------------------------------------------

    The assessments of possible distributional impacts rely on the 
implicit assumption that everyone who received an approved (c)(8) EAD 
entered the labor force and found work, and thus earned wages of labor. 
We believe this assumption is justifiable because applicants would 
generally not have expended the direct and opportunity costs of 
applying for an EAD if they did not expect to recoup an economic 
benefit. However, as was stated earlier, DHS recognizes that impacts 
from COVID-19 have pushed the U.S. national unemployment rate to a much 
higher level than the historically low rate of 3.6 percent prior to the 
pandemic.\190\
---------------------------------------------------------------------------

    \190\ This unemployment rate reflects the Bureau of Labor 
Statistics (BLS) most recent data, for April 2019. It can be found 
in the ``Employment Situation Summary'' of the Economic News Release 
section: https://www.bls.gov/news.release/empsit.toc.htm.
---------------------------------------------------------------------------

    Because the (c)(8) EAD does not include or require, at the initial 
or renewal stage, any data on employment, and, since it does not 
involve an associated labor condition application (LCA), DHS has no 
information on wages, occupations, industries, or businesses that may 
employ such workers. In some DHS rulemakings, the estimates of 
distributional impacts and time-related opportunity costs were linked 
to the Federal minimum wage for new entrants to the labor force. The 
Federal minimum wage is $7.25, which, when adjusted for benefits by a 
multiple of 1.46, is $10.59 per hour, with an annual salary of 
$15,080.\191\ 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.\192\ Although the prevailing minimum 
wage, without accounting for benefits, could be considered a lower-end 
bound on true earnings, DHS uses a fully loaded wage rate, at $12.05, 
which is 13.8 percent higher than the Federal minimum wage.\193\ While 
DHS does not rule out the possibility that some portion of the 
population might earn wages at the average level for all occupations, 
without solid a priori or empirical information we believe that 
providing a range with the lower bound relying on the prevailing 
minimum wage is justifiable. Therefore, for the purpose of this 
analysis, DHS also uses a national average wage rate of $24.98, to take 
into consideration the variance

[[Page 38611]]

in average wages across states as an upper bound. The fully-loaded 
average hourly wage is $36.47. All of the quantified estimates of costs 
and transfer payments in this analysis incorporate lower and upper 
bounds based on these fully-loaded wages.\194\
---------------------------------------------------------------------------

    \191\ The benefits-to-wage multiplier is calculated by the BLS 
as (Total Employee Compensation per hour)/(Wages and Salaries per 
hour) = $36.32/$24.91 = 1.458 (1.46 rounded). See Economic News 
Release, Employer Cost for Employee Compensation (March 2019), U.S. 
Dept. of Labor, BLS, 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 (March 
19, 2019), available at https://www.bls.gov/news.release/archives/ecec_03192019.pdf. Calculation for annual Federal minimum salary: 
Hourly wage of $10.59 x 2,080 annual work hours = $15,080.
    \192\ The EPI report is 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.
    \193\ Calculations (1) for prevailing minimum wage: $8.25 hourly 
wage x benefits burden of 1.46 = $12.05; (2) (($12.05 wage-$10.59 
wage)/$10.59)) wage = .1378, which rounded and multiplied by 100 = 
13.8 percent.
    \194\ The average wage for all occupations is found BLS 
Occupational Employment Statistics, May 2018 National Occupational 
Employment and Wage Estimates, and reflects the 2017 average for all 
occupations nationally. The data is found at: https://www.bls.gov/oes/2018/may/oes_nat.htm#00-0000. Calculation: hourly wage of $24.98 
x benefits burden (1.46) = $36.47.
---------------------------------------------------------------------------

    In light of the public comments on the Notice of Proposed 
Rulemaking, we make two additional notes here. In developing the 
quantified impacts that follow, the reliance on an upper and lower 
bound for the wages is meant to reflect the potential averages for the 
asylum EAD population. It by no means precludes the possibility that 
some may earn more than the average, or, that some earn lower than the 
prevailing minimum. Second, DHS recognizes that earnings may increase 
over the course of an EADs validity period; for example, a person who 
enters a job at the prevailing minimum may earn more by the time their 
EAD expires. However, this possibility alone does not rule out the 
reliance on the wage bounds that we have developed, and we see no way 
of credibly integrating this potential into the ensuing estimates. 
Nonetheless, DHS relies on a range which does allow for some variation 
in wages that asylum applicants may earn, including over the period of 
analysis.
    Most of the cost impacts will result from delayed or forgone 
earnings to asylum applicants. Since the data analysis centers on 
calendar days, and costs are specifically linked to hours, we apply a 
scalar developed as follows. Calendar days are transformed into work 
days to account for the actuality that typically, 5 out of 7, or 71.4 
percent, of the calendar week is allotted to work-time, and that a 
workday is typically 8 hours. Based on the prevailing minimum wage of 
$12.05, the combined scalar is $68.83, and, based on the average wage 
it is $208.32.\195\ In summary, based on the prevailing minimum wage 
relied upon, each calendar day generates $68.83 dollars in relevant 
delayed or forgone earnings. It follows that for the upper wage bound 
that each calendar day generates $208.32 dollars in relevant delayed or 
forgone earnings/delayed earnings.
---------------------------------------------------------------------------

    \195\ Calculations: .714 x 8 hours per day x $12.05 wage = 
$68.83, and .714 x 8 hours per day x $36.47 wage = $208.32 
(rounded).
---------------------------------------------------------------------------

Module 2. Quantified Cost Impacts and Transfers
    As was mentioned above, DHS will require all asylum applicants to 
wait 365 calendar days before filing for an initial EAD. Currently, 
applicants have a 150-day waiting period before they can file for an 
initial (c)(8) EAD. The baseline population specific to the 365-day 
wait period is the average annual flow of initial (c)(8) EAD approvals 
(153,381, Table 10), as there would not be a cost for denied 
applicants. Of the 153,381 average annual EAD approvals, DHS is able to 
conduct a detailed analysis of the impacts of the 365-day wait on only 
39,000 affirmative asylum applicants, including cases later referred to 
DOJ-EOIR, below. While DHS does not have the data to estimate the 
impacts with the same confidence for the remaining residual population, 
DHS separately quantifies a maximum impact for the residual population 
later in the analysis.
    The analysis of the 365-day EAD filing wait involves the 
interaction between data germane to the asylum cases and the EAD 
simultaneously. In this context, we discuss several reasons why the 
analyzable 39,000 is relatively low, about a quarter of the approval 
population. Foremost, it captures no defensively-filed asylum cases 
because DHS does not have data about asylum case decisions for 
defensively adjudicated cases. Second, it does not capture cases 
germane to pending asylum cases--it captures cases in which a DHS 
decision or referral to DOJ-EOIR was made. Third, the data had to be 
obtained by developing a program to query several disparate data sets 
at once and match data between them in a structured format, with dozens 
of data points and indicators for each case. For cases in which one or 
more of the key data points was missing or not viable, the analysis as 
required was not possible. DHS parsed and filtered the data to exclude 
extreme outliers and erroneous data to obtain the most viable and 
tractable data amenable for the analysis.
    For the approximately 39,000 EADs associated with affirmative 
asylum filings adjudicated by DHS for which data are available, a 
reasonably detailed estimation of the impacts from changing the wait 
period to file for employment authorization from the 150-day Asylum EAD 
Clock to the 365 day waiting period can be conducted. For affirmative 
cases referred to DOJ-EOIR by DHS for which data are available some 
estimation can be performed, but not with the same extent of precision 
and completeness, due to data constraints. This part of the analysis 
focuses on the DHS affirmative asylum cases for which complete data is 
available, and for DHS affirmative cases referred to DOJ-EOIR, for 
which some data is available. DHS does not have complete data for the 
``residual'' population, and estimates a maximum potential impact for 
this population separately.
    The analysis of the 365-day wait begins with consideration that 
some aliens, for whatever reason, did not file for an EAD until after 
365 days. Our analysis of the approximately 39,000 I-765(c)(8) initial 
EAD approvals for affirmative asylum indicate that this group comprises 
10.2 percent of the 39,000 approved EADs with available data. 
Technically, this group, comprising 3,978 EADs, would not be impacted 
by the 365-day wait, and, adjusting for them yields a ``narrowed'' 
baseline of 35,022. While the percentage filing for an EAD after 365 
days could vary in the future, it is integrated herein for the cost 
estimates.
    As noted above, the impact of the provision depends on the 
interaction between the asylum decision and the EAD approval, since a 
granted asylum application provides de facto employment authorization. 
Therefore, the narrowed baseline can be decomposed into specific cost-
segments to more appropriately hone the potential impacts. There has 
been a substantial reduction in DHS affirmative asylum processing time 
over the five-year span 2014-2018, and the adoption of LIFO processing 
has further contributed to the reduction. As noted above, in January 
2018, USCIS reinstituted LIFO processing. Although DHS typically relies 
on 3- or 5-year averages in most cost benchmarks, in this specific 
case, since LIFO is more likely to be representative of the future than 
an average of four years of FIFO and one year of LIFO, and, since it 
appears to have had a significant impact on asylum processing times, 
the costs are benchmarked to the calendar year of time covering the end 
of January 2018 to the end of January 2019 for DHS affirmative asylum 
decisions.
    Of the narrowed baseline, DHS referrals to DOJ-EOIR comprise 74.4 
percent (26,056 cases) and DHS affirmative adjudication comprises 25.6 
percent (8,966 cases) annually. The narrowed baseline for DHS 
affirmative asylum is parsed into four groups, A-D, that capture 
different cost segments germane to the potential interaction between 
approved asylum and the EAD and expected future conditions. Group A 
comprises DHS affirmative asylum adjudicated prior to 365 days, in 
which

[[Page 38612]]

the EAD was ``binding''. The latter impart that the EAD was approved 
prior to the asylum decision. For Group A, because the asylum 
application for these applicants would be adjudicated prior to the 365-
day wait period, the cost in terms of the rule is the time interval 
between the current wait time and asylum approval. To explain this via 
an example, consider an alien that currently files for an EAD at the 
150-day mark and has it approved 40 days later, at 190 days. If the 
concomitant asylum adjudication is at the 200-day mark, the true 
benefit the EAD could provide is 10 days (assuming the asylum claim is 
approved). Table 13 is introduced, which shows that Group A represented 
11 percent of the narrowed baseline, or 3,852 aliens annually, and the 
average impact in terms of the EAD benefit is 53 days (in Table 13 all 
the shares are provided on the basis of the narrow baseline).
    Group B similarly consists of DHS affirmative asylum adjudicated 
prior to 365 days, but in contradistinction to Group A, under Group B 
the EAD was ``non-binding''--which means the grant of asylum could 
provide de facto employment authorization, as it was adjudicated before 
the EAD. Because of this, Group B would not incur a cost impact in 
terms of delayed earnings from the provision. For this 9.5 percent of 
the narrowed baseline, or 3,327 aliens, the EAD benefit was zero (as it 
was non-binding). Essentially, the EAD approval was inconsequential, 
and invoked a net cost because the filing costs were sunk. Hence, the 
cost in terms of this rule is nil, but the forgone filing (sunk) costs 
can appropriately be credited as cost-savings.
    A key takeaway is that Groups A and B would potentially not file 
for an EAD in the future, since the asylum application was adjudicated 
in less than the 365-day wait period to apply for employment 
authorization. Moreover, a key inference is that under LIFO, the 
majority of DHS affirmative asylum cases were adjudicated in less than 
one year. Accordingly, forgone filing costs for the 7,180 aliens are 
accredited a cost-savings. There is currently no filing fee for the 
initial (c)(8) EAD, and the time burden is currently 4.5 hours, which 
includes the time associated with submitting two passport-style photos 
along with the application.\196\ The Department of State (DOS) 
estimates that passport photos cost about $20 per application.\197\ At 
the lower wage bound of $12.05, the time related cost is $54.23, which, 
when added to the photo cost of $20, yields a per person cost of $74.25 
(rounded to $74.3). The cost savings accruing to this group (A and B) 
would be $533,438 annually. At the high wage bound, cost-savings per 
person would be $184.10 and cost-savings to the group would be 
$1,321,748 annually. DHS notes that this cost-savings estimate assumes 
the full sub-population would not file under the circumstances. 
However, as was mentioned in the preamble, some aliens might file for 
an EAD after being granted asylum if they want to have documentation 
that reflects that they are employment authorized.
---------------------------------------------------------------------------

    \196\ DHS is currently drafting a final comprehensive fee rule 
such that on the effective date of that rule, there may be changes 
to the burdens and filing costs reported herein.
    \197\ DOS estimates an average cost of $10 per passport photo in 
the Paperwork Reduction Act (PRA). Supporting Statement found under 
OMB control number 1450-0004. A copy of the Supporting Statement is 
found on Reginfo.gov at: http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201102-1405-001 (see question #13 of the 
Supporting Statement).
---------------------------------------------------------------------------

    Group C involves DHS affirmative asylum adjudicated after 365 days. 
It is within this context that some assumptions need to be established. 
We assume that in the future, all EAD filers would file at exactly 365 
days and the processing time would be the global average of 69 days 
(Table 11), noting that the processing time relies on the five-year 
average because it is not directly impacted by the change to LIFO 
asylum processing.\198\ These assumptions make the analysis tractable 
and do not impose a loss of generality. Group C comprises those whose 
asylum claim is decided after 434 days (the sum of the 365 day wait and 
the average 69 EAD processing days). This group of 981 cases comprises 
2.8 percent of the narrowed baseline. For this group, the EAD is 
binding (i.e., it provides employment benefits prior to an asylum 
decision), and the impact accrues to the difference between the global 
average current EAD-wait time of 283 days (Table 11) and 434 days (the 
estimated new average wait time), which is 151 days.
---------------------------------------------------------------------------

    \198\ The 365-day benchmark is relied upon because makes the 
ensuing analysis and cost estimation tractable. In reality, some 
aliens will wait until after 365 days if they need to resolve 
outstanding applicant-caused delays. However, it is also noted that 
submitted comments claimed that the 365-day wait period to file for 
an EAD is too long. As such, it is reasonable to assume that filers 
would generally file as soon as they can, which will be 365 days.
---------------------------------------------------------------------------

    For Group D, affirmative asylum is currently adjudicated between 
365 and 434 days. For Group D, under the baseline the EAD was approved 
before the asylum decision, and was therefore binding. But under the 
final rule, retaining the assumptions from above concerning average EAD 
processing time of 69 days, the EAD would ``switch'' to a non-binding 
state because it would be granted after the asylum application was 
adjudicated. As a result, there would be two impacts. First, the 
distributional effect to Group D is equal to the current EAD benefit 
(the current EAD benefit would, by definition, be strictly greater than 
zero). The average calendar-day impact to this 2.3 percent of the 
narrowed baseline, or 806 aliens, is calculated to be 130 days. 
Secondly, because under this rule the asylum application will be 
adjudicated after 365 days but before the EAD approval, the EAD filing 
costs will become sunk (i.e. while the applicant would apply for an 
EAD, it would not result in any benefit). Based on the population of 
806 and the per-person filing cost of $74.30 and $184.10, reflecting 
the wage bounds, sunk filing costs would be $59,849 and $148,294, 
respectively. Subtracting this amount from the filing cost savings 
(Groups A and B) generates ``net cost-savings'' that will range from 
$473,588 to $1,321,748.\199\
---------------------------------------------------------------------------

    \199\ Conceptually, a fifth group, could be added, under for 
which asylum was adjudicated after 365 days but before the EAD 
approval. There would be no earnings impact as a result of this 
provision, but analysis reveals that no cases would fit this 
conceptual category.
---------------------------------------------------------------------------

    The remainder of the narrowed EAD approval baseline applies to DHS 
referrals to DOJ-EOIR, which comprise 26,056 cases (Group E). DHS 
cannot partition these cases into cost segments akin to Groups A-D. 
While the data does allow DHS to calculate the average wait time in 
terms of when asylum was filed and when the EAD was approved for DHS 
referrals to DOJ-EOIR, because we do not have data concerning the 
decision on the asylum application the interaction between the EAD and 
asylum decision cannot be calculated. DHS analysis indicates that the 
impact is 133 days (the difference between the global average current 
EAD-wait time for Group E and the estimated new average wait time under 
this rule), and it is requisite to justify why this figure is reported 
as opposed to the 151-day impact for Group C. In practice, the average 
wait time and EAD processing times for Group C differ very slightly 
from the global averages reported in Table 11, but the difference is 
not statistically significant. However, the current wait for DHS 
referrals--measured strictly as the time interval between the filing 
for affirmative asylum and the EAD approval--is larger, at 301 days, 
and the difference is

[[Page 38613]]

statistically significant.\200\ As a result the difference in day-
impact between Group C (151 days) and Group E (133 days) is 18 days, 
which is exactly the difference in current wait times between the two, 
at 283 and 301, in order.
---------------------------------------------------------------------------

    \200\ The tests of significance for differences in the means for 
the global population and Group C population report exact 
probability values (p-values) of .124 and .179, allowing 
determination that the minute differences are not significant at the 
95 percent level of confidence. The p-value for the difference in 
the mean of 301 for DHS referrals is .042, allowing determination 
that it is significantly different than the global of 283.

                       Table 13--Narrowed Baseline of EAD Approvals That Could Be Analyzed
----------------------------------------------------------------------------------------------------------------
             Group                Population       Share (%)            Group description          Average days
----------------------------------------------------------------------------------------------------------------
Group A.......................           3,852            11.0  DHS asylum adjudicated <365                   53
                                                                 days; EAD binding.
Group B.......................           3,327             9.5  DHS asylum adjudicated <365                    0
                                                                 days; EAD non-binding.
Group C.......................             981             2.8  DHS asylum adjudicated >434                  151
                                                                 days; EAD binding by definition.
Group D.......................             806             2.3  DHS asylum adjudicated between               130
                                                                 365-434 days; EAD currently
                                                                 binding.
Group E.......................          26,056            74.4  DHS referrals to DOJ-EOIR.......             133
----------------------------------------------------------------------------------------------------------------

    DHS notes that while working with averages makes the analysis 
tractable and clearer, a caveat is that we rely on the assumption that 
the (c)(8) I-765 processing time is the same as the average from FY 
2014 to FY 2018 (i.e. before), and after this rule.\201\ In a sense 
too, we assume that the I-589 processing times, when we benchmark to 
the LIFO protocol, will be the same as well. If either change, the 
costs developed in Table 14 could vary. There could be two sources of 
such variation in the monetized costs. First, the populations of the 
subgroups could change, and, second, the day impacts could also change.
---------------------------------------------------------------------------

    \201\ DHS also separately published an NPRM entitled ``Removal 
of 30-Day Processing Provision for Asylum Applicant-Related Form I-
765 Employment Authorization Applications,'' DHS Docket No. USCIS-
2018-0001. If adopted as a Final Rule, that rule would affect 
current EAD processing times under the Rosario v. DHS court order. 
However, based on USCIS's best estimate of what will occur after the 
30-day rule becomes effective (as discussed in that rule), USCIS 
does not expect average processing times would meaningfully differ 
from the historical average processing times relied upon in this 
analysis.
---------------------------------------------------------------------------

    Table 14 (A and B) breaks out the cost for each group presented in 
Table 13. The population germane to each group is repeated, as is the 
day impact. The following three columns translate the information into 
quantified costs. The data presented are undiscounted, with the low 
wage estimates provided in Table 14(A) and the upper bound wage 
estimates provided in Table 14(B).

               Table 14(A)--365-Day EAD Filing Wait Cost Projections Based on the Lower Wage Bound
                                             [Undiscounted, annual]
----------------------------------------------------------------------------------------------------------------
                                                                     Costs per         Costs
                                                                   person  (day    (population x    Tax impacts
              Group                 Population      Day impact       impact x        costs per       (costs x
                                                                      $58.83)         person)         15.3%)
----------------------------------------------------------------------------------------------------------------
                                           3,852              53          $3,648     $14,053,590      $2,150,199
                                           3,327               0               0               0               0
                                             981             151          10,393      10,191,866       1,559,355
                                             806             130           8,948       7,207,587       1,102,761
                                          26,056             133           9,154     238,530,155      36,495,114
                                 -------------------------------------------------------------------------------
    Subtotals...................  ..............  ..............  ..............     269,983,197      41,307,429
    Minus: Net costs-savings =..  ..............  ..............  ..............         473,588
    Equals: Grand total =.......  ..............  ..............  ..............     269,509,609      41,307,429
----------------------------------------------------------------------------------------------------------------


            Table 14(B)--365-Day EAD Filing Wait Cost Projections Based on the Upper Bound Wage Bound
                                             [Undiscounted, annual]
----------------------------------------------------------------------------------------------------------------
                                                                     Costs per         Costs
                                                                   person  (day    (population x    Tax impacts
              Group                 Population      Day impact       impact x        costs per       (costs x
                                                                     $208.32)         person)         15.3%)
----------------------------------------------------------------------------------------------------------------
A...............................           3,852              53         $11,041     $42,534,415      $6,507,766
B...............................           3,327               0               0               0               0
C...............................             981             151          31,456      30,846,571       4,719,525
D...............................             806             130          27,082      21,814,391       3,337,602
E...............................          26,056             133          27,707     721,932,323     110,455,645
                                 -------------------------------------------------------------------------------
    Subtotals...................  ..............  ..............  ..............     817,127,700     125,020,538
    Minus: Net costs-savings =..  ..............  ..............  ..............       1,173,454
    Equals: Grand total =.......  ..............  ..............  ..............     815,954,246     125,020,538
----------------------------------------------------------------------------------------------------------------


[[Page 38614]]

    Subtracting the net cost-savings from the subtotals yields the 
total costs of the rule in terms of lost or delayed earnings from the 
365-day wait for 39,000 of the 153,381 EADs affected annually, which 
DHS estimates could range from $269.5 million to $816.0 million 
annually, depending on the wage of the asylum worker. Similarly, the 
reduction in tax transfer payments from employers and employees to the 
federal government could range from $41.3 million to $125.0 million 
annually, depending on the wage and if companies cannot find reasonable 
substitutes for the labor the asylum applicant would have 
provided.\202\ The annual midrange for costs and taxes are $542.7 
million and $83.2 million annually, in order. However, DHS notes that 
the lack of data about DHS referrals precluded our ability to parse out 
potentially lower cost segments of the 26,056 annual affirmative cases 
referred to DOJ-EOIR, as we were able to do with DHS-adjudicated asylum 
applications. This inability likely results in a dual effect. First, 
for some segments, the day gap would be lower than the average 133 
days, thus reducing deferred or lost wages and tax transfers. In 
addition, there would be cost savings that would accrue to forgone 
filings as some might not need to file a (c)(8) I-765. As it relates to 
defensively-filed asylum cases, as was seen in groups A-D of 
affirmative cases, there could be cost-savings from no longer filing an 
I-765, and for cases in which the EAD was filed after 365 days, this 
rule will not have an impact.
---------------------------------------------------------------------------

    \202\ The calculations for the tax impacts are conducted as 
follows. For the lower wage bound, the aggregated income tax rate of 
15.3 percent multiplied by the cost sub-total of low end of 
$269,983,197 yields $41,307,429. For the upper wage bound, the 
aggregated income tax rate of 15.3 percent multiplied by the cost 
sub-total of low end of $817,127,700 yields $125,020,538.
    .
---------------------------------------------------------------------------

    In the above section, DHS analyzes 39,000 of the 153,381 affected 
EAD approvals for which DHS could obtain specific data to assess the 
impacts of the 365-day EAD filing wait time. In this section, DHS 
analyzes the remaining 114,381, the ``residual'' population, which 
contains three groups of EAD cases linked to asylum: (i) What is likely 
a small number of DHS affirmative cases for which viable data could not 
be ascertained; (ii) DHS affirmative asylum cases in which the asylum 
claim was pending; and (iii) defensive cases. Since we have incomplete 
data on this population, DHS estimates the day-impact as the difference 
between the future projected 434 days and the global current average of 
283 days (EAD wait time), or 151 days.
    For the residual population, the cost impact at the low wage bound 
is $10,393 each (151 days multiplied by $68.83), which, at a population 
of 114,381, generates $1.189 billion in lost earnings and, if companies 
cannot find reasonable substitutes for the labor the asylum applicant 
could have provided, could generate a reduction of $181.9 million in 
taxes transferred from employers and employees to the federal 
government annually. The cost impact at the upper wage bound is $31,456 
each (151 days multiplied by $208.32), which, at a population of 
114,381, generates $3.598 billion in lost earnings and an associated 
potential $550.5 million reduction in tax transfers annually.
    The costs reported above represent a maximum estimate of the 
potential impact for this residual population. This is because DHS 
lacks data on the how many days after filing for asylum these 
applicants apply for an EAD and how many days after filing for an EAD 
these applicants receive an asylum decision, which would allow DHS to 
parse the lower cost segments. Specifically, there may be a portion of 
the residual population that currently waits more than 365-days to 
apply for an EAD. The estimated 151-day delay would be overstated for 
this group and would decrease the above estimated impact. Additionally, 
there may be a portion of the residual population that would receive an 
asylum decision in less than 434 days. The estimated 151-day impact 
would also be overstated for this group. Furthermore, aliens who 
receive an asylum decision in less than 434 days would not have to file 
for an EAD under this rule, resulting in cost savings for forgone 
future filings. However, DHS notes that a large number of defensive 
cases are unlikely to be adjudicated before 434 days. Although DHS does 
not have the information to map defensive asylum cases to the 
associated EADs, DHS was able to obtain data on defensive asylum claims 
that captured the date the asylum case was received, and the completion 
date. Our analysis reveals that for FY 2014-2018 the average time 
interval between the two days was 624 days. Since defensive asylum 
processing times have been on average (over the studied period) greater 
than 434 days, relying on the 151-day impact period is a reasonable 
estimate. Nevertheless, because 151 days is by definition the maximum 
impact allowable in our impact setup, the estimates are still 
overstated because at least some of the defensive cases (and the DHS 
affirmative cases not included in the 39,000 batch with analyzable 
information) would invoke asylum decisions less than 434 days. As a 
result, the true day-impact for some of the residual population would 
be strictly less than 151 days.
    This rule incorporates a biometrics requirement into the employment 
authorization process for asylum seekers. Specifically, aliens will be 
required to appear at an ASC for biometrics collection and pay a 
biometrics services fee. The biometrics requirement will apply to 
(c)(8) I-765 filers, for both initial and renewal EAD applications. 
Biometrics are currently collected for all (both affirmative and 
defensive) Form I-589 applicants, and they are exempt from paying the 
$85 biometric services fee. However, biometrics are not currently 
collected when asylum applicants apply for employment authorization. 
This rule will not impact the asylum filing biometrics protocol, but 
would require biometrics collection at the EAD filing stage for (c)(8) 
I-765 applicants, as well as payment of the biometric services fee, 
which is currently $85.
    To estimate the cost of this biometrics requirement, we begin with 
the population of 290,094, which, tallied earlier, comprises the 
initial, renewal, and potential (c)(11) transfer populations. 
Biometrics are also not currently collected for (c)(11) I-765 filers 
and thus would also be a new requirement for these 13,000 annual 
filers. First, as the analysis for the 365-day filing wait period 
demonstrated, a portion of filers, Groups A and B from above (20.5 
percent), would potentially not file under the rule because the asylum 
decision would precede the EAD approval under this rule (under the LIFO 
protocol). We scale the population by this percentage to yield an 
adjusted population of 230,625 (290,094 x ((1-0.205)). Even under broad 
current or planned biometrics collection, there are often cases in 
which some individuals do not submit biometrics or pay the $85 
biometric services fee. This section develops proxy metrics to allow 
for equitable estimations to populations not yet existent, in context. 
Therefore, the second stages of the population adjustment require a 
more detailed, technical approach. This approach is developed next.
    When an alien appears at a DHS-USCIS ASC for a biometric collection 
appointment, their biometrics are digitally collected and stored in the 
Customer Profile Management System (CPMS) database, which is the USCIS 
data repository for biometrics submissions. DHS obtained biometric 
submission data from CPMS for the five-

[[Page 38615]]

year period 2013-2017. The five-year average across all USCIS 
immigration forms was 3,619,794. Detailed analysis of the biometrics 
submissions data reveals that a small group of nine forms accounted for 
the vast majority, 90.5 percent, of the average biometrics submissions. 
These forms are: (1) Form N-400, Application for Naturalization; (2) 
Form I-90, Application to Replace Permanent Resident Card; (3) Form I-
765, Application for Employment Authorization; (4) Form I-485, 
Application to Register Permanent Residence or Adjust Status; (5) Form 
I-589, Application for Asylum and Withholding of Removal; (6) Form I-
821D, Consideration of Deferred Action for Childhood Arrivals; (7) Form 
I-131, Application for Travel Document; (8) Form I-751, Petition to 
Remove the Conditions on Residence; and (9) Form I-601A, Application 
for Provisional Unlawful Presence Waiver (noted here are that two of 
the forms, I-765 and I-589 are involved in this rule). The remainder 
majority of forms are characterized by very small populations, very few 
biometrics submissions (for which many accounted for zero submissions 
in terms of percentage and number), and unspecified form types. The 
biometrics volumes for the prevalent group of nine forms (``PREV-9'') 
are presented in Table 15.

                                                    Table 15--Biometric Submissions by Form Grouping
                                                                    [FY 2013-FY 2017]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                  Form                        FY 2013         FY 2014         FY 2015         FY 2016         FY 2017       5-Year Avg.        Share
--------------------------------------------------------------------------------------------------------------------------------------------------------
PREV-9
    N-400...............................         778,172         779,221         772,648         961,092       1,013,252         860,877           23.78
    I-90................................         554,918         790,069         780,050         743,589         770,552         727,836           20.11
    I-765...............................         421,011         391,650         800,711         489,553         588,008         538,187           14.87
    I-485...............................         459,298         506,991         494,664         500,369         547,755         501,815           13.86
    I-589...............................          95,938         116,668         173,248         230,900         304,308         184,212            5.09
    I-821D..............................         350,339         102,192         242,101         125,489         224,899         209,004            5.77
    I-131...............................          89,146          87,012          87,755          88,977          86,299          87,838            2.43
    I-751...............................         185,587         172,478          93,359          71,823          83,417         121,333            3.35
    I-601A..............................          16,381          37,293          48,978          52,654          67,494          44,560            1.23
PREV-9 (all)............................       2,950,790       2,983,574       3,493,514       3,264,446       3,685,984       3,275,662           90.5%
Other Forms.............................         241,605         198,537         709,577         328,339         242,604         344,132            9.5%
    Total...............................       3,192,395       3,182,111       4,203,091       3,592,785       3,928,588       3,619,794            100%
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The remaining 88 percent of forms comprise less than 10 percent of 
average biometrics submissions. The future population for biometrics 
submission under this rule does not yet exist, in context. To estimate 
the future population, a method needs to be developed to extrapolate 
functional conditions from the existing state of affairs. To accomplish 
this, a biometrics collection rate (BCR), a formula estimating the 
proportion of biometric submissions out of the total age-eligible 
population within a form type, is developed. The BCR formula is below 
(Formula 1):
[GRAPHIC] [TIFF OMITTED] TR26JN20.000

    Where BCR represents the Biometrics Collection Rate for a specific 
form type, BI represents ``intensity,'' the average number of aliens 
who currently submit biometrics by that form type in a fiscal year, and 
P represents the volume of age-eligible benefit requests associated 
with a form type by fiscal year. The calculations for the BCR for PREV-
9 are shown in Table 16. The average biometrics submissions are 
repeated from Table 15 as the five-year average, and the average age 
eligible population is also the five-year average. The results in Table 
16 call for explanation.

                              Table 16--Biometrics Collection Rate by Form Grouping
                                               [FY 2013--FY 2017]
----------------------------------------------------------------------------------------------------------------
                                                                    Average        Average age
                                                                  biometrics     eligible filing        BCR
                                                                  submissions      population
----------------------------------------------------------------------------------------------------------------
PREV-9 set
    I-765.....................................................         538,187         1,892,366           0.284
    I-131.....................................................          87,838           409,699           0.214
    N-400.....................................................         860,877           839,601           1.025
    I-90......................................................         727,836           703,707           0.985
    I-485.....................................................         501,815           612,148           0.820
    I-821D....................................................         209,004           370,838           0.564
    I-589.....................................................         184,212           127,499           1.445
    I-751.....................................................         121,333           164,441           0.738
    I-601A....................................................          44,560            45,633           0.976
Two added forms
    I-918.....................................................          43,235            52,805            .819
    I-914.....................................................           1,907              2004            .952
Raw BCR for regrouped set.....................................  ..............  ................           .8363
----------------------------------------------------------------------------------------------------------------

    The BCR for different form types varies due to the eligibility 
categories and age characteristics of the filers and dependents. For 
the Forms N-400 and I-589, the BCR is higher than unity. The reason is 
that biometrics are currently routinely collected on all principal 
applicants for these forms as well as derivative family members who

[[Page 38616]]

generally submit biometrics alongside the principal applicant. Two 
forms, the I-131 and I-765, have low BCRs, even though biometrics are 
routinely collected for these forms. But these BCRs are 
``artificially'' low because of concurrent filings; in many cases 
biometrics are submitted via a concurrent form. As has been stated 
earlier, the goal is to broadly collect biometrics from (c)(8) I-765 
filers, but there will be exemptions and waivers (that have nothing to 
do with this rule).\203\ Hence, a proxy for BCR estimation should be 
less than unity, but be positive and relatively high, and while some 
analyst subjectivity is involved in our methodology, given the 
unknowns, it is a rational approach. The BCRs for the four forms in 
PREV-9 not discounted immediately above due to ``artificially'' high/
low BCRs are assessed to be reasonable and have a good deal of range, 
from .564 to .985. Since it is desirable to have as many relevant forms 
as possible in the proxy collection, we examined the BCRs for the 
remaining [specific] forms and proceeded to add two, which are the only 
forms external to PREV-9 that have high BCRs: Form I-914, Application 
for T Nonimmigrant Status, and Form I-918, Petition for U Nonimmigrant 
Status. The respective BCRs for these two additional forms, in order, 
are .952 and .819, as is shown in Table 15. Recalibrating, this 
rebranded group of 7 forms represent just 9 percent of the form 
captures under CPMS (including the non-specific types) but nearly half 
(46 percent) of average biometrics submissions.
---------------------------------------------------------------------------

    \203\ Waivers are limited and would apply when there the 
applicant is unable to provide fingerprints because of a medical 
condition.
---------------------------------------------------------------------------

    For the seven proper forms, we obtain the unweighted average BCR of 
83.63 percent. We do not have a priori information on which specific 
forms (or a subgroup of them) would have a BCR closest to the not yet 
existing, in context, rule population. Similarly, there is no 
``target'' or desired BCR that we seek to impugn to this population 
under this rule. Hence, we use the raw average as opposed to a weighted 
one, because the former weights each BCR in the group equally. Scaling 
the adjusted population of 230,625 baseline biometrics by .8363 yields 
a projected biometrics submitting population (BSP) of 192,871.
    Before estimating the costs of the biometrics requirement, another 
proxy metric is needed, and hence another formula is required. Not all 
of the biometrics submissions will involve the $85 biometric services 
fee, as there may be applicable exemptions and waivers (that have 
nothing to do with this rule). To estimate the fee paying population, 
DHS uses the total volume of biometric services fee payments and the 
overall volume of biometric submissions to derive a biometrics fee 
ratio (BFR), a formula identifying the portion of aliens who pay the 
$85 biometric services fee out of the total population of those 
submitting biometrics who may be required to pay the fee (for example, 
excluding I-589 applicants because they are not required to pay the 
corresponding biometrics fee).
    The formula for the BFR calculation is provided below (Formula 2):
    [GRAPHIC] [TIFF OMITTED] TR26JN20.001
    
    Where BFR represents the Biometrics Fee Ratio, F is the estimated 
number of aliens who pay the biometric services fee in a fiscal year 
and BI represents the number of biometrics submissions in a given 
fiscal year, which was initialized above in the BCR setup. The fee-
paying volume for biometrics services is available from FY 2015 to FY 
2017 only. The BFR is calculated by comparing the biometric fee paying 
volumes to total biometrics submissions. In FY 2017, for example, a BFR 
of 0.77 results by dividing a volume of 2.80 million biometric services 
fee payments by a total of 3.62 million biometrics submissions.\204\ 
Stated somewhat differently, for every known non-exempt benefit request 
with a biometrics submission, DHS estimates that about 77 percent of 
aliens pay the biometric services fee while the remaining 23 percent of 
aliens receive a fee exemption, a biometric services fee waiver, or 
fall outside of the current age restrictions for submitting the $85 
biometric services fee. Table 17 provides the BFR calculations for each 
fiscal year, including the total and three-year average. The 
generalized BFR that obtains is .755, which is weighted for the volume 
size each year, since it is derived from the total that will be used 
for subsequent calculations.\205\
---------------------------------------------------------------------------

    \204\ Calculation: 2,801,648 fee-paying volume for FY 2017/
(3,928,588 total biometrics collection volume for FY 2017--304,308 
Form I-589 biometrics collection volume for FY 2017) = 0.77. The 
Form I-589 is excluded in the BFR calculations because there is no 
fee associated with this form.
    \205\ Calculation: 2,771,279 average Fee-Paying Volume/3,672,003 
average biometric collection volume exclusive of Form I-589 
biometric submissions = 0.75 (rounded).

                                    Table 17--Biometric Fee Ratio, All Forms
                                                [FY 2015-FY 2017]
----------------------------------------------------------------------------------------------------------------
                                                                                     Biometric
                                                                    Fee-paying      submissions   Biometrics fee
                           Fiscal year                                volume         (excludes      rate (BFR)
                                                                                    Form I-589)
----------------------------------------------------------------------------------------------------------------
FY 2015.........................................................       2,765,927       4,029,843           0.686
FY 2016.........................................................       2,746,261       3,361,885           0.817
FY 2017.........................................................       2,801,648       3,624,280           0.773
                                                                 -----------------------------------------------
    Total.......................................................       8,313,836      11,016,008  ..............
                                                                 -----------------------------------------------
    Average.....................................................       2,771,279       3,672,003           0.755
----------------------------------------------------------------------------------------------------------------

    Applying the average BFR of .755 to the BSP biometrics population 
of 192,871 yields an estimated 145,618 biometric services fee payments 
(BFP) annually.
    Having undertaken several steps to develop the appropriate BSP and 
ensuing BFP, the costs germane to the biometrics requirement can be 
developed. The submission of biometrics would require that aliens 
travel to an ASC for the biometric

[[Page 38617]]

services appointment.\206\ In past rulemakings, DHS estimated that the 
average round-trip distance to an ASC is 50 miles, and that the average 
travel time for the trip is 2.5 hours.\207\ The cost of travel also 
includes a mileage charge based on the estimated 50 mile round trip at 
the 2019 General Services Administration (GSA) rate of $0.58 per 
mile.\208\ Because an individual alien would spend 1 hour and 10 
minutes (1.17 hours) at an ASC to submit biometrics, summing the ASC 
time and travel time yields 3.67 hours. At this point we will also 
incorporate the added time burden of 15 minutes (.25 hours), that 
asylum applicants will spend answering additional Form I-765 questions 
and reading the associated instructions, in order to consolidate the 
costs. The total time is therefore 3.92 hours. At the low and high wage 
bounds, the opportunity costs of time are $47.24 and $142.96. The 
travel cost is $29, which is the per mileage reimbursement rate of .58 
multiplied by 50 mile travel distance. Summing the time-related and 
travel costs generates a per person biometrics submission cost of 
$76.24, at the low wage bound and $171.96 at the high wage bound.
---------------------------------------------------------------------------

    \206\ DHS expects the majority of biometrics appointments to 
occur in the United States at an ASC. However, in certain instances 
aliens may submit biometrics at an overseas USCIS office or DOS 
Embassy or consulate. However, because DHS does not currently have 
data tracking the specific number of biometric appointments that 
occur overseas, it uses the cost and travel time estimates for 
submitting biometrics at an ASC as an approximate estimate for all 
populations submitting biometrics in support of a benefit request.
    \207\ See DHS Final Rule, Provisional Unlawful Presence Waivers 
of Inadmissibility for Certain Immediate Relatives, 78 FR 535 (Jan. 
3, 2013).
    \208\ The General Services Administration mileage rate of $0.58, 
effective January 1, 2019, available at: https://www.gsa.gov/travel/plan-book/transportation-airfare-rates-pov-rates/privately-owned-vehicle-pov-mileage-reimbursement-rates.
---------------------------------------------------------------------------

    The total annual cost for the BSP would be $14,703,739 at the low 
end and $33,166,617 at the high end. Multiplying the estimated BFP by 
the $85 fee yields $12,377,518 annual biometric services fee 
costs.\209\ Combining the costs to the BSP and fee payments for the 
BFP, at the low and high wage, in order, are estimated at $27,081,256 
and $45,544,134, annually.
---------------------------------------------------------------------------

    \209\ DHS is currently finalizing a comprehensive fee rule. DHS 
did not incorporate the anticipated costs of providing biometrics 
services for (c)(8) I-765 applicants into the cost projections for 
providing biometric services used in the fee rule because this rule 
was not final at the time DHS developed the USCIS fee schedule. 
Therefore, DHS was unable to incorporate the cost of biometrics 
services for the (c)(8) EAD population into the underlying form fee, 
as it did for most other applications. DHS expects that, as of the 
effective date of the fee rule, (c)(8) EAD applicants will not pay 
more than the $85 for the biometrics services fee; thus, the costs 
related to biometrics reported herein may overstate the actual costs 
in the future.
---------------------------------------------------------------------------

    DHS will also eliminate the recommended approvals for asylum, under 
which an asylum applicant can file an EAD request upon initial 
favorable review by an asylum officer, prior to completion of all 
background, security, and related checks. No alien having already 
benefitted from the preferential treatment would be adversely impacted. 
However, DHS must treat the earnings from recommended approvals that 
would have occurred in the future as costs because the final rule would 
eliminate these earnings. For the average 3,072 annual recommended 
approvals, not all applied for EADs, and not all of those that applied 
were granted EADs. The data reveal that the share of recommended 
approvals that eventually were approved for EADs was 62.8 percent, 
yielding 1,930 annual cases. The data was organized by fiscal year and 
the requisite time interval was calculated by subtracting the date of 
the associated asylum filing from the EAD approval date. The results 
are presented in Table 18:

                                    Table 18--Impact of Recommended Approvals
                                                 (FY 2014-2018)
----------------------------------------------------------------------------------------------------------------
                                                           Average calendar days from asylum
                                                                filing to EAD approval
                      Fiscal year                       --------------------------------------   Day difference
                                                           No recommended      Recommended
                                                              approval           approval
----------------------------------------------------------------------------------------------------------------
2014...................................................                330                246                 83
2015...................................................                317                262                 56
2016...................................................                305                264                 41
2017...................................................                310                268                 42
2018...................................................                234                193                 40
                                                        --------------------------------------------------------
2014-2018 average......................................  .................  .................                 52
----------------------------------------------------------------------------------------------------------------

    As Table 18 reveals, recommended approvals have benefited by having 
EADs commence validity an average of 52 days sooner than others. This 
52-day raw average day tally translates into a scaled impact of $3,579 
per person at the low wage and (52-day impact x $68.83), and $10,833 at 
the high wage (52-day impact x $208.32). Multiplying these costs by 
1,930 annual cases yields a total labor income impact of $6,907,779 and 
$20,906,995, in order. Similarly, the reduction in tax transfer 
payments from employers and employees to the government could range 
from $1,056,890 to $3,198,770 annually, depending on the wage and if 
companies cannot find reasonable substitutes for the labor the asylum 
applicant would have provided. The midpoint of the range for costs and 
taxes are $13,907,387 and $2,127,830, in order.
    DHS is revising its regulations prescribing when employment 
authorization terminates following the denial of an asylum application. 
Under the baseline, DHS affirmative-asylum denials have concomitant 
approved EADs terminated within 60 days after the adverse asylum 
decision or on the date of the expiration of the EAD, whichever is 
longer. Under this rule employment authorization would be terminated 
effective on the date the affirmative asylum application is denied. 
However, if DHS refers the case to DOJ-EOIR, employment authorization 
will be available to the alien while in removal proceedings. DHS 
analysis of the data reveals that 360 EADs associated with a denied DHS 
Affirmative asylum application are currently valid that could be 
terminated earlier than they otherwise would, when the rule goes into 
effect. In addition to the costs of potentially terminated EADs in the 
first year, the analysis reveals about 215 EADs have been issued to 
concomitant asylum denials annually.

[[Page 38618]]

    For the pool of 360 current EADs, the time remaining between the 
present date of analysis (a proxy for the rule becoming effective) and 
the time left on each EAD was calculated. As stated above, under the 
baseline, the EADs linked to these DHS affirmative-asylum would end 
within 60 days after the adverse asylum decision, or, on the date of 
the expiration of the EAD, whichever is longer. For the cases with less 
than 60 days left, calculating the precise cost of the rule to these 
cases would require a complex analysis of the interaction between two 
variables, the asylum decision date and the EAD validity period, as 
well as the rule proxy date. To make the analysis tractable, we assign 
these cases the 60-day period, noting that this assignment would likely 
somewhat overstate the costs to these cases. After the recalibration to 
60 days for the cases in with less than 60 days remaining, the average 
time left on the EADs is 356 days. For the annual flow of 290 EADs, the 
cost basis is the day-time difference between the adverse asylum 
decision and the end of the EAD validity. For these cases the average 
impact is 471 days.
    The costs of the provision to end some EADs early can now be 
tallied, since the appropriate impact metrics have been calculated. For 
the existing EADs, the cost impact at the low wage bound is $24,503 
each (356 days multiplied by $68.83), which is $8,821,253 in lost 
earnings and generates a potential $1,349,652 reduction in employment 
taxes transferred from employers and employees to the federal 
government if companies cannot find reasonable substitutes for the 
labor the asylum applicant would have provided. The cost impact at the 
upper wage bound is $74,162 each (356 days multiplied by $208.32), 
which is $26,698,291 in lost earnings and generates a potential 
$4,084,839 reduction in tax transfers. These specific costs and tax 
transfer impacts would be incurred the first year the rule takes 
effect.
    For the annual flow of 215 annual EADs, the cost impact at the low 
wage bound is $32,149 each (471 days multiplied by 68.83), which is 
$6,970,070 in lost earnings and generates a potential $1,066,421 
reduction in employment taxes transferred from employers and employees 
to the federal government if companies cannot find reasonable 
substitutes for the labor the asylum applicant would have provided. For 
the annual flow of 215 EADs, the cost impact at the upper wage bound is 
$98,119 each (471 days multiplied by 208.32), which is $21,095,525 in 
lost earnings and a potential $3,227,616 reduction in tax transfers. 
These costs and tax transfer impacts would be incurred annually.
    Adding up the costs and transfers for both the existing and future 
EADs that could be impacted the costs would be $15,791,323 at the lower 
wage bound and $47,793,816 at the upper wage bound for the first year 
the rule is in effect. Similarly, the potential reduction in employment 
taxes would range from $2,416,072 to $7,312,454. The midpoint estimate 
for total costs and taxes, in order, are $31,792,569, and $4,864,263.
    Having estimated the costs and tax transfers for the provisions in 
which costs and transfers could be quantified, we now tally them and 
present the total quantified costs and transfers of the final rule. 
There are essentially three quantified modules. First is the flow 
volume of costs that will be incurred in each of ten years. As was 
shown above, for the biometrics requirement, costs were allotted to the 
time-related opportunity costs associated with submitting biometrics, 
the cost of travel, a form burden increase, and the biometrics service 
fee payments. For the proposal to eliminate recommended approvals, 
costs were developed as delayed earnings of labor. For the proposal to 
end some EADs early, cost flows are attributed to forgone future 
earnings (for DHS affirmative cases only). For the 365-day EAD filing 
waiting period, costs were assigned to forgone or delayed earnings as 
well. For this provision, a robust analysis was offered for the 39,000 
DHS affirmative asylum cases that could be analyzed, and a slightly 
less robust analysis was presented for DHS referrals to DOJ-EOIR, due 
to data constraints. Lastly, a maximum estimate of forgone earnings was 
estimated for the residual population under the 365-day filing waiting 
period. There is also a net cost-savings due to the potential that some 
current filers may not need to file for an EAD in the future.
    Second, with the exception of the biometrics proposal, the other 
provisions for which quantified cost flows are allocated, above, also 
incur a reduction in tax transfer payments from employers and employees 
to the government if companies cannot find reasonable substitutes for 
the labor the asylum applicant would have provided. As a third module, 
there could be a first year added cost and also a tax transfer 
applicable to the existing pool of 360 EADs that could be ended early. 
Table 19 presents the flow costs for the relevant provisions, 
undiscounted and in order of the low (A) and high wage (B) bounds 
relied upon. The cost figures for the 365-day EAD wait include the net 
cost-savings.

                      Table 19 (A)--Annual Flow Costs for Provisions of the Rule in Which Costs Could be Monetized--Low Wage Bound
                                                                [Undiscounted, 2020-2029]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                     Eliminate
                 Year                      365 day EAD         Biometrics       End some EADs       recommended     Residual (365 day     Annual total
                                              filing                                early            approvals         EAD filing)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.....................................       $269,509,609        $27,081,256        $15,791,323         $6,907,779     $1,188,761,733     $1,508,051,700
2.....................................        269,509,609         27,081,256          6,970,070          6,907,779      1,188,761,733      1,499,230,447
3.....................................        269,509,609         27,081,256          6,970,070          6,907,779      1,188,761,733      1,499,230,447
4.....................................        269,509,609         27,081,256          6,970,070          6,907,779      1,188,761,733      1,499,230,447
5.....................................        269,509,609         27,081,256          6,970,070          6,907,779      1,188,761,733      1,499,230,447
6.....................................        269,509,609         27,081,256          6,970,070          6,907,779      1,188,761,733      1,499,230,447
7.....................................        269,509,609         27,081,256          6,970,070          6,907,779      1,188,761,733      1,499,230,447
8.....................................        269,509,609         27,081,256          6,970,070          6,907,779      1,188,761,733      1,499,230,447
9.....................................        269,509,609         27,081,256          6,970,070          6,907,779      1,188,761,733      1,499,230,447
10....................................        269,509,609         27,081,256          6,970,070          6,907,779      1,188,761,733      1,499,230,447
                                       -----------------------------------------------------------------------------------------------------------------
    10-year total.....................      2,695,096,090        270,812,561         78,521,953         69,077,790     11,887,617,330     15,001,125,724
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 38619]]


                     Table 19 (B)--Annual Flow Costs for Provisions of the Rule in Which Costs Could Be Monetized--Upper Wage Bound
                                                                [Undiscounted, 2020-2029]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                     Eliminate
                 Year                      365 day EAD         Biometrics       End some EADs       recommended     Residual (365 day     Annual total
                                              filing                                early            approvals         EAD filing)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.....................................       $815,954,246        $45,544,134        $47,793,816        $20,906,995     $3,597,968,736     $4,528,167,927
2.....................................        815,954,246         45,544,134         21,095,525         20,906,995      3,597,968,736      4,501,469,636
3.....................................        815,954,246         45,544,134         21,095,525         20,906,995      3,597,968,736      4,501,469,636
4.....................................        815,954,246         45,544,134         21,095,525         20,906,995      3,597,968,736      4,501,469,636
5.....................................        815,954,246         45,544,134         21,095,525         20,906,995      3,597,968,736      4,501,469,636
6.....................................        815,954,246         45,544,134         21,095,525         20,906,995      3,597,968,736      4,501,469,636
7.....................................        815,954,246         45,544,134         21,095,525         20,906,995      3,597,968,736      4,501,469,636
8.....................................        815,954,246         45,544,134         21,095,525         20,906,995      3,597,968,736      4,501,469,636
9.....................................        815,954,246         45,544,134         21,095,525         20,906,995      3,597,968,736      4,501,469,636
10....................................        815,954,246         45,544,134         21,095,525         20,906,995      3,597,968,736      4,501,469,636
                                       -----------------------------------------------------------------------------------------------------------------
    10-year total.....................      8,159,542,460        455,441,341        237,653,541        209,069,950     35,979,687,360     45,041,394,652
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The data in Table 19 are utilized to attain the discounted costs of 
the rule. The total ten-year present values at the low wage bound in 
order of 3 and 7 percent rates of discount, are $12.80 billion and 
$10.54 billion. Since the first year of the rule's effects will include 
the additional costs applicable to ending some EADs early, the annual 
effect is not constant across all ten years is not the same, and 
therefore, the average annualized equivalence costs are very slightly 
different across interest rates. At the low end wage the average 
annualized equivalence cost is $1.50 billion (at both interest rates). 
At the upper wage bound, the total ten-year present values, in order of 
3 and 7 percent rates of discount, are $38.42 billion and $31.64 
billion. The average annualized equivalence costs are $4.50 billion and 
4.51 billion, in order.
    Table 20 reports the total quantified tax transfers for the rule, 
based on the provisions for which quantification is possible.

Table 20--Annual Tax Transfers for Provisions Under Which Taxes Could Be
                         Estimated and Monetized
                             [Undiscounted]
------------------------------------------------------------------------
             Provision                Low wage bound    Upper wage bound
------------------------------------------------------------------------
365 day EAD filing wait...........        $41,307,429       $125,020,538
Biometrics........................                  0                  0
End Some EADs early...............          1,066,421          3,227,615
Eliminate Recommended Approvals...          1,056,890          3,198,770
Residual 365-day filing wait......        181,880,545        550,489,217
                                   -------------------------------------
    Subtotal annual tax transfers.        225,311,285        681,936,140
    Plus: First year added tax of           1,349,652          4,084,839
     ending some EADs early.......
                                   -------------------------------------
        Equals: Total tax                 226,660,937        686,020,979
         transfers in first year..
------------------------------------------------------------------------

    Finally, this section concludes with Table 21, which collates the 
monetized impacts of the rule, in terms of both costs (A) and taxes 
(B), and provides the midrange of them.

                                    Table 21(A)--Monetized Costs of the Rule
                                       [Discounted, $ billions, 2020-2029]
----------------------------------------------------------------------------------------------------------------
                                                              Low wage         Upper range       Range midpoint
----------------------------------------------------------------------------------------------------------------
3 percent discount (ten-year PV).......................             $12.80             $38.42             $25.61
7 percent discount (ten-year PV).......................              10.54              31.64              21.09
3 percent discount (average annual equivalence)........               1.50               4.50               3.00
7 percent discount (average annual equivalence)........               1.50               4.51               3.00
----------------------------------------------------------------------------------------------------------------


                                Table 21(B)--Monetized Tax Transfers of the Rule
                                             [$ billions, 2020-2029]
----------------------------------------------------------------------------------------------------------------
                                                              Low wage         Upper range       Range midpoint
----------------------------------------------------------------------------------------------------------------
3 percent discount (ten-year)..........................              $1.92              $5.82              $3.87
7 percent discount (ten-year)..........................               1.58               4.79               3.19
3 percent discount (average annual equivalence)........               0.23               0.68               0.45

[[Page 38620]]

 
7 percent discount (average annual equivalence)........               0.23               0.68               0.45
----------------------------------------------------------------------------------------------------------------

    In concluding this section, this final rule is considered an E.O. 
13771 regulatory action. DHS estimates the total cost of this rule is 
$1.678 billion, based on the midpoint of the costs annualized using a 7 
percent discount rate over an infinite time horizon, in 2016 dollars, 
and discounted back to 2016 for E.O. 13771 accounting purposes.
Module 3. Unquantified Costs and Transfers
    In this section, DHS addresses impacts of the rule that DHS has 
considered, but is unable to quantify. First, DHS recognizes that there 
may be costs to asylum applicants, legal organizations that assist 
asylum applicants, and others for spending time becoming familiar with 
this rule. In addition, there are several provisions of the rule that 
will result in costs or distributional impacts, but for which DHS is 
unable to measure the size of the population and/or the possible costs 
and transfer payments in a quantitative fashion. For each of the 
provisions described below that impact asylum applicants' employment 
authorization, the resulting lost compensation will either represent 
transfers from asylum applicants to other available labor or serve a 
proxy for lost productivity, depending on if the business is able to 
find replacement labor for the job the asylum applicant would have 
filled. If businesses are unable to find replacement labor, it would 
both result in a loss of business productivity and also in a reduction 
in taxes transferred from asylum applicants and employers to Federal, 
state and local governments. As developed previously, DHS estimates per 
person per day lost earnings as between $68.83 and $208.32, depending 
on the wage the asylum applicant would have earned. And, if companies 
cannot find reasonable substitutes for the labor the asylum applicant 
would have provided, the lost earnings correspond to a reduction 
between $10.53 and $31.87 per person per day in taxes transferred from 
employers and employees to the federal government, depending on the 
wage. DHS addresses each of the remaining provision below.
    DHS will exclude, with certain exceptions, aliens who entered or 
attempted to enter the United States other than lawfully through a U.S. 
port of entry on or after the effective date of the rule from 
eligibility for (c)(8) employment authorization. The rule will also 
exclude from eligibility for (c)(8) employment authorization aliens who 
have been convicted of an aggravated felony at any time, or has been 
convicted on or after the effective date of this final rule of a 
particularly serious crime or committed a serious non-political crime 
outside of the United States, or any alien who fails to establish that 
he or she is not subject to a mandatory denial of asylum due to any 
regulatory criminal grounds under 8 CFR 208.13(c). DHS is unable to 
estimate the population of aliens with pending asylum applications that 
would be impacted by the provisions dealing with illegal entry and 
criminality. These unknown persons will be precluded from obtaining an 
EAD until their asylum cases have been adjudicated. The length of time 
during which they will lose work authorization will depend on a number 
of factors, including if the asylum case will be affirmatively or 
defensively adjudicated and if the decision will be appealed.
    Under current protocol, asylum applicants are currently allowed to 
renew their (c)(8) EADs while their cases are under review in Federal 
court. This rule will allow for Termination of EAD after Asylum Denial 
Affirmed by the BIA. Employment authorization would not be granted 
after the BIA affirms a denial of the asylum application and while the 
case is under review in Federal court, unless the case is remanded to 
DOJ-EOIR for a new decision. Some aliens may experience lost or 
deferred income due to this change in protocol. For aliens who file 
their asylum application on or after the effective date of this rule, 
DHS will deny (c)(8) EAD applications if such aliens have failed to 
file for asylum within one year of their last arrival in the United 
States, as required by law, unless and until an asylum officer or IJ 
determines that an exception to the one-year filing bar applies. DHS 
makes about 8,326 such referrals to DOJ-EOIR each year (Table 12). DHS 
has no data that would enable estimation of these effects as a result 
of the one-year filing bar provision. Specifically, while DHS does have 
data on the filing bar referrals and the associated I-765s, we do not 
have data on the outcome of these filing bar referrals. EADs linked to 
defensive asylum cases would also be impacted by the filing bar 
conditions being finalized but DHS does not have data to estimate the 
number of defensively filed cases affected. DHS recognizes that the 
one-year filing deadline exception is determined at the time of the 
asylum adjudication. Thus, aliens granted an exception to the bar by an 
asylum officer or IJ, would likely face deferred earnings and lost 
taxes while awaiting the decision. Aliens not granted an exception to 
the bar would likely not be granted an EAD and would lose earnings 
altogether. DHS does not have data to determine for how long these 
applicants may lose earnings.
    DHS will apply the changes made by this rule to all initial and 
renewal applications for employment authorization filed on or after the 
effective date of the final rule, with limited exceptions. DHS cannot 
quantify how many of the 104,511 annual renewals would be subject to 
the criminal provisions when the rule goes into effect or how many 
would be precluded from obtaining an EAD.
    As discussed previously, DHS is also revising its regulations 
prescribing when employment authorization terminates following the 
denial of an asylum application. In the above quantified analysis DHS 
estimates the cost of these changes for asylum cases denied by an 
asylum officer. DHS discusses here the impacts for asylum cases denied 
by an IJ. Under the baseline, when an IJ denies an asylum application, 
the EAD terminates on the date the EAD expires, unless the asylum 
applicant seeks administrative or judicial review. This rule provides 
that for cases USCIS refers to DOJ-EOIR and cases defensively filed 
with DOJ-EOIR, employment authorization would continue for 30 days 
following the date that the IJ denies the asylum application to account 
for a possible appeal of the denial to the BIA. If the alien files a 
timely appeal, employment authorization would continue, and the alien 
would be able to file a renewal EAD application. As shown in Table 9, 
from 2014-2018 DOJ-EOIR denied an average of 14,820 asylum applications 
annually. However, the data available to

[[Page 38621]]

DHS does not map DOJ-EOIR case dispositions to DHS employment 
authorizations, and thus we cannot estimate how many denied or 
dismissed asylum claims by an IJ or BIA are connected to authorized 
EADs, either on an annualized flow or current pool basis. For DHS 
affirmative asylum, the populations (215 and 360, in order) were small. 
The numbers are likely to be higher for DOJ-EOIR, since DHS makes so 
many referrals to them, and, since DOJ-EOIR solely handles defensive 
cases. Aliens with an EAD who are denied asylum would eventually be out 
of the labor force even without this rule. Therefore, the cost for an 
employer to replace the employee (turnover cost) is not a cost of this 
rule. However, this rule would impact the timing of when such workers 
would be separated, which could vary. This rule would result in 
employers incurring such turnover costs earlier than without this rule.
    This seeks to clarify that aliens with a positive credible fear 
finding are not eligible to seek immediate employment authorization 
under 8 CFR 274a.12(c)(11), although, historically USCIS has granted 
many of these requests, an average of approximately 13,000 annually. 
Such aliens would still be eligible to apply for a (c)(8) employment 
authorization to become employment authorized subject to the 
eligibility changes in this rule, including the 365-day waiting period. 
Accordingly, applicants that apply for an EAD from the current (c)(11) 
category may experience a delay in earnings. It is possible that some 
of the applicants under this scenario would have their asylum decision 
within 365 days and thus would potentially not file for an EAD. It is 
recalled that an adjustment was made for this possibility in the 
development of the biometrics requirement provision costs. It is also 
possible that some may not file as transfers for other reasons. As a 
result, the actual affected population would most likely be below 
13,000. DHS is unable to develop a cost of lost or delayed earnings for 
this group because it does not have the related asylum information, so 
DHS does not have the data necessary to correctly segment the costs.
    While the purpose of the rule is to generate disincentives to 
applicants to prolong the adjudication of their asylum application, it 
establishes that any delay requested or caused by the applicant that is 
outstanding or has not been remedied by the time aliens files their 
initial (c)(8) EAD applications will result in denial of the EAD 
application. Any delays in receiving an EAD could generate economic 
hardship to aliens in terms of costs associated with reapplication for 
the EAD and delayed or lost earnings could be considered a cost. The 
rule amends existing language to clarify that an applicant's failure to 
appear to receive and acknowledge receipt of the decision following an 
interview and a request for an extension to submit additional evidence 
will be considered applicant-caused delays for purposes of eligibility 
for employment authorization. Any documentary evidence submitted fewer 
than 14 calendar days before the asylum interview (with allowance for a 
brief extension to submit additional evidence as a matter of 
discretion) may result in an applicant-caused delay if it delays the 
adjudication of the asylum application. The purpose of this provision 
is to improve administrative efficiency and aid in the meaningful 
examination and exploration of evidence in preparation for and during 
the interview. The purpose of the rule is to generate disincentives to 
applicants to cause any delays in the adjudication of their asylum 
application. While DHS has no way of predicting how the disincentives 
might take effect, in some cases, the changes in protocol could result 
in applicant-caused delays in receiving an EAD, and therefore could 
impose costs.
    In addition to the major provisions, there are numerous technical 
changes, clarifications to existing language, and amendments to 
existing language. This rule clarifies how an asylum applicant's 
failure to appear for an asylum interview or biometric services 
appointment will affect his or her eligibility for asylum or employment 
authorization and provides a new timeframe and standard for 
rescheduling an asylum interview for the asylum application. In 
addition, DHS clarifies that USCIS is not obligated to send any notice 
to the applicant about his or her failure to appear at a scheduled 
biometric services appointment or an asylum interview as a prerequisite 
to denying the asylum application or referring it to an IJ. These 
amendments are intended to facilitate more timely and efficient case 
processing when applicants fail to appear for essential appointments. 
Finally, the amendments replace references to fingerprint processing 
and fingerprint appointment with the presently employed ``biometric 
services appointment.''
    This rule also removes the language providing that an application 
for asylum will automatically be deemed ``complete'' if USCIS fails to 
return the incomplete application to the applicant within a 30-day 
period. There is no impact from this change because USCIS is already 
returning incomplete applications, and this rule would remove outdated 
regulatory text that no longer applies.
    The rule also codifies certain protocols related to the length of 
EAD validity and DHS authorities in the asylum process. These 
amendments and technical codifications outlined above and discussed in 
more detail in the preamble could impact the specific protocol, timing, 
and variations in which applicants interact with DHS over the asylum 
and concomitant EAD process.
    Finally, DHS acknowledges a number of additional distributional 
impacts from provisions that will impact employment authorization for 
asylum applicants. DHS recognizes that without employment 
authorization, asylum applicants will depend on support networks such 
as family, state-funded and other public agencies, and non-profit 
organizations. The longer an asylum applicant is without employment 
authorization, the longer the applicant's support network is providing 
assistance to the applicant. In addition, without employment 
authorization, potentially, there could also be a reduction in some 
applicants' decision to seek medical care. Some aliens may be able to 
obtain health insurance even without an employer and some health care 
costs related to these effects would potentially be incurred by the 
support networks and/or public assistance programs.
    Any earnings loss or deferment could impact the applicants' support 
network including, but not limited to, family members, private and 
public charities and non-profit-organizations, non-governmental 
organizations (NGOs), attorneys, and state and local governments.
2. Benefits
    It is not possible to monetize the benefits of this rule and thus 
DHS describes them qualitatively. This rule will reduce the incentives 
for aliens to file frivolous, fraudulent, or otherwise non-meritorious 
asylum applications intended primarily to obtain employment 
authorization, allowing aliens with bona fide asylum claims to be 
prioritized. A streamlined system for employment authorizations for 
asylum seekers would reduce fraud and improve overall integrity and 
operational efficiency, thereby benefiting the U.S. Government and the 
public. For example, USCIS currently reviews an asylum application 
issued a recommended approval twice: First to

[[Page 38622]]

determine if it is initially approvable as a ``recommended approval,'' 
and then again after a recommended approval notice has been issued to 
the applicant to ensure that the applicant remains eligible for asylum 
based on the results of the background and security checks. Eliminating 
recommended approvals remove duplicative case processing tasks thereby 
enhancing USCIS efficiency.
    These changes will remove incentives for aliens to enter the United 
States illegally for economic reasons and allow DHS to process bona 
fide asylum seekers who present themselves at the U.S. ports of entry 
in an expedited manner. DHS also believes these administrative reforms 
will encourage aliens to follow the lawful process to immigrate to the 
United States, which will reduce injuries and deaths that occur during 
dangerous illegal entries, and reduce expenditures by government 
agencies that are charged with enforcing the immigration laws of the 
United States. These impacts stand to provide qualitative benefits to 
asylum seekers, the communities in which they reside and work, the U.S. 
Government, and society at large.
    The rule is also beneficial in the context that providing 
employment authorization to inadmissible and removable aliens 
undermines the removal scheme created by Congress and incentivizes such 
aliens to come to and remain in the United States.\210\ Doing so also 
undermines the Administration's goals of strengthening protections for 
U.S. workers in the labor market.\211\ Several employment-based visa 
programs require U.S. employers to test the labor market, comply with 
recruiting standards, agree to pay a certain wage level, and agree to 
comply with standards for working conditions before they can hire an 
alien to fill the position. These protections do not exist in the 
(c)(8) EAD program.
---------------------------------------------------------------------------

    \210\ In a few limited circumstances, Congress has authorized 
the Secretary to grant employment authorization, as a matter of 
discretion, to aliens who are inadmissible or deportable and even 
when they have a final order of removal from the United States. See, 
e.g., INA sec. 236(a)(3), 8 U.S.C. 1226(a)(3) (discretionary 
employment authorization for inadmissible or removable aliens with 
pending removal proceedings); INA sec. 241(a)(7), 8 U.S.C. 
1231(a)(7) (discretionary employment authorization for certain 
aliens with final orders of removal).
    \211\ Aliens who file adjustment of status applications even if 
they do not ultimately qualify for adjustment of status to permanent 
residence and aliens who are temporarily placed in deferred action, 
are allowed to apply for EADs. If DHS approves the application for 
employment authorization, these aliens receive ``open market'' 
EADs--meaning that they may accept employment in any field and may 
be hired by any U.S. employer without the U.S. employer having to 
demonstrate that there were no available U.S. workers or guarantee 
that that it will pay the prevailing wage or maintain certain work 
conditions. As a result, such aliens are more likely to directly 
compete with U.S. workers for employment.
---------------------------------------------------------------------------

    The biometrics requirement would provide a benefit to the U.S. 
Government by enabling DHS to know with greater certainty the identity 
of aliens seeking (c)(8) EADs and more easily vet those aliens for 
benefit eligibility. This would also provide DHS with the ability to 
limit identity fraud because biometrics are unique physical 
characteristics that are difficult to falsify and do not change over 
time.
3. Impact to Labor Force and Taxes
    The rule, when finalized, is not expected to have a significant 
impact on states or the national labor force. The national civilian 
labor force is 164,546,000, for which the rule's maximum population of 
about 290,434 (first year) would represent just 0.18 percent of the 
labor force. DHS received some public comments expressing that the 
relative concentration of asylum seekers in certain areas could affect 
the labor market of those states. DHS obtained the civilian labor force 
figures by state (including the District of Columbia) for the most 
recent final data, applicable to February 2020.\212\ DHS also obtained 
data on the number of approved initial and renewal EADs for 2019. DHS 
then divided the latter by the former to calculate the ratio of EAD 
holders to the labor force by state. Our analysis shows that there is a 
high degree of correlation between size of the labor force and number 
of asylum-related EADs--the Pearson correlation coefficient is .82. 
Almost three-quarters (73 percent) of States exhibited a ratio lower 
than the general average of .18, and the raw (unweighted) average for 
these 37 states was .07%. No state had a ratio above 1 percent, and the 
raw average of the states above the general ratio was .39. This higher 
tier can be grouped into three segments. Florida and New York had 
higher ratios of .94 and .70, in order. Next, seven states grouped in 
the range of .33 to .42, and the rest fell between .21 and .26. In 
summary, even though the highest state, Florida, showed a ratio of .94, 
which is more than five times greater than the general average (.18), 
it is still does not reach the 1 percent level. As such, we think it is 
reasonable to determine that impacts accruing to the EAD holders 
germane to this rule will not impact the national labor force or that 
of individual states.\213\
---------------------------------------------------------------------------

    \212\ Relevant calculations 290,434 for first year/164,546,000 = 
.001765, which is rounded and multiplied by 100 to equal .18 
percent. The national labor force figure represents the civilian 
labor force, seasonally adjusted, for February 2020, and is found in 
``Labor Force Statistics from the Current Population Survey,'' at 
https://www.bls.gov/cps/cpsatabs.htm. The statewide figures are 
obtained from the Local Area Unemployment Statistics,'' at https://www.bls.gov/lau/#data.
    \213\ It is noted that the state relevant to the EADs reflects 
the address the alien provided on their application. It does not 
necessarily mean that the EAD holder is actually employed in that 
same state.
---------------------------------------------------------------------------

    This rule will generate costs and distributional impacts in the 
form of deferred and lost compensation. Additionally, if companies are 
unable to fill the labor the asylum applicants would have performed, 
some states and local governments would experience a decrease in tax 
transfers. DHS estimates that if all companies are unable to fill the 
labor the asylum applicants would have performed, the total reduction 
in employment taxes transferred from employers and employees to the 
Federal Government could range from $225.5 million to $682.5 million 
annually (annualized at 7%). There could also be a reduction in income 
tax transfers that could impact individual states and localities.
    In addition, DHS recognizes there may be additional distributional 
impacts on states, such as for assistance from state-funded agencies 
and for healthcare from state-funded hospitals.

B. Regulatory Flexibility Act (RFA)

    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 businesses, small 
governmental jurisdictions, and small organizations during the 
development of their rules. The term ``small entities'' comprises small 
businesses, not-for-profit organizations that are independently owned 
and operated and are not dominant in their fields, or governmental 
jurisdictions with populations of less than 50,000.\214\
---------------------------------------------------------------------------

    \214\ A small business is defined as any independently owned and 
operated business not dominant in its field that qualifies as a 
small business per the Small Business Act, 15 U.S.C. 632.
---------------------------------------------------------------------------

    This rule makes changes to the process by which aliens seeking 
asylum in the United States can apply for EADs while their asylum 
claims are pending either with DHS or DOJ-EOIR. DHS estimates that rule 
will apply to a maximum population of about 290,000, and with smaller 
sub-populations applicable to specific, individual provisions (which 
are encompassed in the maximum). This rule directly regulates 
individuals who are not, for purposes of the RFA, within the

[[Page 38623]]

definition of small entities established by 5 U.S.C. 601(6).
    As previously explained, several of the provisions being adopted 
may result in deferred or forgone labor earnings compensation for 
asylum applicants. In addition, some aliens would not be able to obtain 
an EAD in the future that otherwise could currently. However, these 
provisions do not directly regulate employers.
    Although this rule does not directly regulate or directly burden 
small entities, 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. 
A final regulatory flexibility analysis (FRFA) follows.
    1. A statement of the need for, and objectives of the rule.
    The rule is being finalized in order to reform the asylum 
application and associated employment authorization application process 
in order to prioritize bona fide claims and reduce frivolous and non-
meritorious asylum filings. The rule is necessary because it has been a 
long time since significant statutory changes have been made to the 
asylum provisions that would effectively address the current aspects of 
the immigration laws that incentivize illegal immigration and frivolous 
asylum filings. Furthermore, the rule could address several of the 
``pull'' factors that encourage aliens to enter the United States 
without being inspected and admitted or paroled and to file non-
meritorious asylum claims to obtain employment authorization or other 
non-asylum based forms of relief from removal. These ``pull'' factors 
have led, in part, to a significant increase in illegal immigration and 
in asylum filings, which has generated a severe backlog of cases and an 
overwhelming volume of non-meritorious cases.
    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 proposed rule as a result of such 
comments.
    One public comment referenced small entities (businesses).
    Comment: A commenter claimed that the provision to end some EADs 
early makes the rule unworkable and that it poses costs to employers, 
including small business. The commenter noted that when an EAD is ended 
early, E-Verify would not be updated at the time of denial, and that 
there is no other central database in which the employer could check 
for an update. If the asylum seeker does not divulge information about 
a denial to an employer, the latter is exposed to liability for hiring 
an unauthorized noncitizen. If the denial is divulged, automatic 
termination of an employee creates logistical difficulties and costs on 
employers whose staffing on a daily basis is integral to output. The 
resultant financial and logistical burden is not aligned with the DHS 
determination that there will be no ``direct costs on small entities.'' 
The commenter says agency should be required to justify all of the 
above costs and logistical difficulties created by the rule for 
employers.
    Response: DHS appreciates the commenters concerns regarding 
logistical burdens to employers, including small businesses, due to the 
provision to end some EADs early. However, this rule making is not 
imposing new obligations or conditions on employers, so DHS disagrees 
that this rule directly impacts small entities. Additionally, DHS notes 
that fewer than 30 percent of asylum seekers are found eligible for 
asylum, so employers who choose to employ asylum seekers already have 
to account for the eventual termination of most of these workers when 
the alien's asylum claim is denied.
    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 employment 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. 
In addition, some employers, potentially including small entities, 
might face labor turnover costs earlier than they otherwise would under 
the rule's provision to end some EADs before their validity date 
expires. DHS cannot reliably estimate how many small entities may be 
indirectly impacted as a result of this rule because DHS does not have 
employment information for asylum applicants who are issued EADs, 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

    This rule is a major rule as defined by 5 U.S.C. 804, also known as 
the ``Congressional Review Act,'' as enacted in section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 
104-121, 110 Stat. 847, 868 et seq. Accordingly, this rule, if enacted 
as a final rule, would be effective at least 60 days after the date on 
which Congress receives a report submitted by DHS under the 
Congressional Review Act, or 60 days after the final rule's 
publication, whichever is later.

D. Unfunded Mandates Reform Act of 1995 (UMRA)

    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

[[Page 38624]]

the Consumer Price Index Inflation Calculator, is $172 million.\215\
---------------------------------------------------------------------------

    \215\ U.S. Bureau of Labor Statistics, Consumer Price Index 
Inflation Calculator, https://data.bls.gov/cgi-bin/cpicalc.pl (last 
visited Feb. 26, 2020).
---------------------------------------------------------------------------

    Because this rulemaking does not impose any Federal mandates on 
State, local, or tribal governments, in the aggregate, or the private 
sector, this rulemaking does not contain such a written statement.
    Under this rule, some private sector entities may incur a cost, as 
they could be losing the productivity and potential profits the asylum 
applicant could have provided. 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, DHS 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 or loss of 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 will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. DHS does not expect that this rule would impose 
substantial direct compliance costs on State and local governments or 
preempt State law. Therefore, in accordance with section 6 of Executive 
Order 13132, 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.

G. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

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

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 will delay the ability for initial applicants 
to work and limit or prohibit some from working based on criminal and 
immigration history, which will decrease disposable income of those 
applicants with families. A portion of this lost compensation might be 
transferred from asylum applicants to others that are currently in the 
U.S. labor force, or, eligible to work lawfully, possibly in the form 
of additional work hours or the direct and indirect added costs 
associated with overtime pay. DHS does not know how many applicants 
contribute to family disposable income. The total lost compensation to 
the pool of potential asylum applicants could range from about $1.5 
billion to $4.5 billion annually, depending on the wages the asylum 
applicant would have earned. For the reasons stated elsewhere in this 
preamble, however, DHS has determined that the benefits of the action 
justify the potential financial impact on the family.

I. National Environmental Policy Act (NEPA)

    DHS analyzes actions to determine whether NEPA applies to them and 
if so what degree of analysis is required. DHS Directive (Dir) 023-01 
Rev. 01 and Instruction (Inst.) 023-01-001 rev. 01 establish the 
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 through 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. DHS Instruction 023-01-001 Rev. 01 establishes such Categorical 
Exclusions that DHS has found to have no such effect. Inst. 023-01-001 
Rev. 01 Appendix A Table 1. For an action to be categorically excluded, 
DHS 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. Inst. 
023-01-001 Rev. 01 section V.B(1)-(3). This rule amends the 
administrative procedure for filing an affirmative asylum application 
in the United States, and strengthen eligibility requirements for 
employment authorization based on a pending asylum application.
    DHS analyzed this action and has concluded that NEPA does not apply 
due to the excessively speculative nature of any effort to conduct an 
impact analysis. Nevertheless, if NEPA did apply to this action, the 
action clearly would come within our categorical exclusion A.3(d) as 
set forth in DHS Inst. 023-01-001 Rev. 01, Appendix A, Table 1.
    This rule is not part of a larger action and presents no 
extraordinary circumstances creating the potential for significant 
environmental effects. Therefore, if NEPA were determined to apply, 
this rule would be categorically excluded from further NEPA review.

J. 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 (for example, 
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

[[Page 38625]]

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

K. Executive Order 12630 (Governmental Actions and Interference With 
Constitutionally Protected Property Rights)

    This rule will 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.

L. 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.

M. 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 will 
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.

N. Paperwork Reduction Act (PRA)

    Under the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, 
all Departments are required to submit to the Office of Management and 
Budget (OMB), for review and approval, any reporting requirements 
inherent in a rule. See Public Law 104-13, 109 Stat. 163 (May 22, 
1995). This final rule makes revisions to existing information 
collections. Table 19 shows a summary of the forms that are part of 
this rulemaking.

               Table 19--Summary of Impacts to USCIS Forms
------------------------------------------------------------------------
                                      New or updated    General purpose
      Form           Form name             form             of form
------------------------------------------------------------------------
I-589..........  Application for    Update--revises    This form is used
                  Asylum and for     and adds           by applicants to
                  Withholding of     instructions for   apply for asylum
                  Removal.           employment         or withholding
                                     authorization      of removal under
                                     while asylum       the Act or the
                                     application is     Convention
                                     pending.           Against Torture
                                                        (CAT).
I-765..........  Application for    Update--revises    This form is used
                  Employment         and adds           by applicants to
                  Authorization.     instructions and   request
                                     questions for      employment
                                     aliens seeking     authorization
                                     employment         from USCIS.
                                     authorization
                                     under the (c)(8)
                                     eligibility
                                     category.
------------------------------------------------------------------------

USCIS Form I-589
Overview of Information Collection
    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: Application for Asylum and for 
Withholding of Removal
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: Form I-589; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Individual aliens and households. 
The data collected on this form will be used by USCIS to determine if 
the alien is eligible for asylum or withholding of removal.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The estimated 
total number of respondents for the information collection Form I-589 
is 114,000 and the estimated hour burden per response is 12 hours; the 
estimated total number of respondents for the information collection 
Biometrics is 110,000 and the estimated hour burden per response is 
1.17 hours.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection is 1,496,700 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this information collection is $46,968,000.
USCIS Form I-765
Overview of Information Collection
    (1) Type of Information Collection: Revision of a currently 
approved collection.
    (2) Title of the Form/Collection: Application for Employment 
Authorization.
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: Form I-765; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Individual aliens and households. 
USCIS requires an alien seeking employment authorization to file the 
Form I-765. The data collected on this form will be used by USCIS to 
determine if the individual seeking employment authorization qualifies 
under the categories of aliens who may apply for employment 
authorization under 8 CFR 274a.12.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The estimated 
total number of respondents for the information collection Form I-765 
is 2,226,026 and the estimated hour burden per response is 4.75 hours; 
the estimated total number of respondents for the information 
collection biometrics is 592,286 and the estimated hour burden per 
response is 1.17 hours; the estimated total number of respondents for 
the information collection Form I-765WS is 302,000 and the estimated 
hour burden per response is .50 hours; the estimated total number of 
respondents for the information collection passport-style photographs 
is 2,226,026 and the estimated hour burden per response is .50 hours.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection is 12,530,611 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this information collection is $732,362,554.

[[Page 38626]]

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

8 CFR Part 208

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

8 CFR Part 274a

    Administrative practice and procedure, Aliens, Employment, 
Penalties, Reporting and recordkeeping requirements.

    Accordingly, DHS amends parts 208 and 274a of chapter I, subchapter 
B, 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.


0
2. Amend Sec.  208.3 by revising paragraph (c)(3) to read as follows:


Sec.  208.3  Form of application.

* * * * *
    (c) * * *
    (3) An asylum application must be properly filed in accordance with 
8 CFR part 103 and the filing instructions. Receipt of a properly filed 
asylum application will commence the 365-day period after which the 
applicant may file an application for employment authorization in 
accordance with Sec.  208.7 and 8 CFR 274a.12 and 274a.13.
* * * * *

0
3. Amend Sec.  208.4 by revising paragraph (c) to read as follows:


Sec.  208.4  Filing the application.

* * * * *
    (c) Amending an application after filing. Upon the request of the 
alien, and as a matter of discretion, the asylum officer or immigration 
judge with jurisdiction may permit an asylum applicant to amend or 
supplement the application. Any delay in adjudication or in proceedings 
caused by a request to amend or supplement the application will be 
treated as a delay caused by the applicant for purposes of Sec.  208.7 
and 8 CFR 274a.12(c)(8).

0
4. Revise Sec.  208.7 to read as follows:


Sec.  208.7  Employment authorization.

    (a) Application and decision--(1)(i) In General. Subject to the 
restrictions contained in sections 208(d) and 236(a) of the Act, and 
except as otherwise provided in paragraphs (b) and (c) of this section, 
an applicant for asylum who is in the United States may apply for 
employment authorization pursuant to 8 CFR 274a.12(c)(8) and 
274a.13(a)(2) of this chapter. The applicant must request employment 
authorization on the form and in the manner prescribed by USCIS and 
according to the form instructions, and must submit biometrics at a 
scheduled biometrics services appointment. USCIS has exclusive 
jurisdiction over all applications for employment authorization and 
employment authorization documentation based on a pending application 
for asylum under 8 CFR 274a.12(c)(8), regardless of whether the asylum 
application is pending with USCIS or the Executive Office for 
Immigration Review. Employment authorization is not permitted during 
any period of judicial review of the asylum application, but may be 
requested if a Federal court remands the case to the Board of 
Immigration Appeals. USCIS may grant initial employment authorization 
under 8 CFR 274a.12(c)(8) for a period that USCIS determines is 
appropriate at its discretion, not to exceed increments of two years.
    (ii) Period for filing. An applicant for asylum cannot apply for 
initial employment authorization earlier than 365 calendar days after 
the date USCIS or the immigration court receives the asylum application 
in accordance with 8 CFR part 103 or 8 CFR 1003.31, respectively, and 
the filing instructions on the application. If an asylum application is 
denied by USCIS before a decision on an initial or renewal application 
for employment authorization, the application for employment 
authorization will be denied.
    (iii) Asylum applicants who are ineligible for employment 
authorization. An applicant for asylum is not eligible for employment 
authorization if:
    (A) The applicant was convicted at any time in the United States or 
abroad of any aggravated felony as described in section 101(a)(43) of 
the Act;
    (B) The applicant was convicted on or after [effective date of 
final rule] of a particularly serious crime;
    (C) There are serious reasons for believing that the applicant on 
or after August 25, 2020 has committed a serious non-political crime 
outside the United States;
    (D) The applicant fails to establish that he or she is not subject 
to a mandatory denial of asylum due to any regulatory criminal grounds 
under 8 CFR 208.13(c);
    (E) An asylum officer or an immigration judge has denied the 
applicant's asylum application within the 365-day period or before the 
adjudication of the initial request for employment authorization;
    (F) The applicant filed his or her asylum application on or after 
August 25, 2020 and filed the application after the one-year filing 
deadline, unless and until the asylum officer or immigration judge 
determines that the applicant meets an exception for late filing as 
provided in section 208(a)(2)(D) of the Act and 8 CFR 208.4 and 1208.4, 
or unless the applicant was an unaccompanied alien child on the date 
the asylum application was first filed.
    (G) The applicant is an alien who entered or attempted to enter the 
United States at a place and time other than lawfully through a U.S. 
port of entry on or after August 25, 2020, unless the alien 
demonstrates that he or she:
    (1) Presented himself or herself without delay but no later than 48 
hours after the entry or attempted entry to the Secretary of Homeland 
Security or his or her delegate;
    (2) Indicated to the Secretary of Homeland Security or his or her 
delegate an intention to apply for asylum or expresses a fear of 
persecution or torture; and
    (3) Has good cause for the illegal entry or attempted entry, 
provided such good cause does not include the evasion of U.S. 
immigration officers, convenience, or for the purpose of circumvention 
of the orderly processing of asylum seekers at a U.S. port of entry.
    (iv) Delay. Any delay requested or caused by the applicant in the 
adjudication of the asylum application that is still outstanding or has 
not been remedied when the initial application for employment 
authorization under 8 CFR 274a.12(c)(8) is filed will result in a 
denial of such application. Examples of applicant-caused delays 
include, but are not limited to the list below:
    (A) A request to amend or supplement an asylum application that 
causes a delay in its adjudication or in proceedings as described in 8 
CFR 208.4(c);
    (B) Failure to appear to receive and acknowledge receipt of the 
decision as specified in 8 CFR 208.9(d);
    (C) A request for extension to submit additional evidence fewer 
than 14-days

[[Page 38627]]

prior to the interview date as described by 8 CFR 208.9(e);
    (D) Failure to appear for an asylum interview, unless excused by 
USCIS as described in 8 CFR 208.10(b)(1) for the failure to appear;
    (E) Failure to appear for scheduled biometrics collection on the 
asylum application;
    (F) A request to reschedule an interview for a later date;
    (G) A request to transfer a case to a new asylum office or 
interview location, including when the transfer is based on a new 
address;
    (H) A request to provide additional evidence for an interview;
    (I) Failure to provide a competent interpreter at an interview; and
    (J) Failure to comply with any other request needed to determine 
asylum eligibility.
    (b) Renewal and termination--(1) Renewals. USCIS may renew 
employment authorization under 8 CFR 274a.12(c)(8) in increments 
determined by USCIS in its discretion, but not to exceed increments of 
two years. Employment authorization is not permitted during any period 
of judicial review, but may be requested if a Federal court remands the 
case to the Board of Immigration Appeals. For employment authorization 
to be renewed under this section, the alien must request employment 
authorization on the form and in the manner prescribed by USCIS and 
according to the form instructions. USCIS will require that an alien 
establish that he or she has continued to pursue an asylum application 
before USCIS, an immigration judge, or the Board of Immigration Appeals 
and that he or she continues to meet the eligibility criteria for 
employment authorization set forth in 8 CFR 208.7(a). For purposes of 
renewal of employment authorization, pursuit of an asylum application 
before an immigration judge or the Board of Immigration Appeals is 
established by submitting a copy of the referral notice or Notice to 
Appear placing the alien in proceedings, any hearing notices issued by 
the immigration court, evidence of a timely filed appeal if the alien 
appealed the denial of the asylum application to the Board of 
Immigration Appeals, or remand order to the immigration judge or Board 
of Immigration Appeals.
    (i) Referrals to an immigration judge. Employment authorization 
granted after the required 365-day waiting period will continue for the 
remaining period authorized (unless otherwise terminated or revoked) if 
the asylum officer refers the alien's asylum application to an 
immigration judge. In accordance with 8 CFR 208.7(b)(1), the alien may 
be granted renewals of employment authorization while under such review 
by the immigration judge.
    (ii) Appeals to the Board of Immigration Appeals. If the 
immigration judge denies the alien's asylum application, any remaining 
period of employment authorization will continue for the period 
authorized (unless otherwise terminated or revoked) during the period 
for filing an appeal with the Board of Immigration Appeals under 8 CFR 
1003.38(b) or, if an appeal is timely filed within such period, during 
the pendency of the appeal with the Board of Immigration Appeals. In 
accordance with 8 CFR 208.7(b)(1), the alien may be granted renewals of 
employment authorization during these periods while the appeal is under 
review by the Board of Immigration Appeals and any remand to the 
immigration judge.
    (2) Terminations. The alien's employment authorization granted 
pursuant to 8 CFR 274a.12(c)(8) will automatically terminate effective 
on the date the asylum officer denies the asylum application, thirty 
days after an immigration judge denies the asylum application unless 
timely appealed to the Board of Immigration Appeals, or the Board of 
Immigration Appeals affirms or upholds a denial, regardless of whether 
any automatic extension period pursuant to 8 CFR 274a.13(d)(3) is in 
place.
    (c) Severability. The provisions in this section are intended to be 
independent severable parts. In the event that any provision in this 
section is not implemented, DHS intends that the remaining provisions 
be implemented as an independent rule.

0
5. Amend Sec.  208.9 by revising paragraphs (d) and (e) to read as 
follows:


Sec.  208.9  Procedure for interview before an asylum officer.

* * * * *
    (d) Completion of the interview. Upon completion of the interview:
    (1) The applicant or the applicant's representative will have an 
opportunity to make a statement or comment on the evidence presented. 
The asylum officer may, in his or her discretion, limit the length of 
such statement or comment and may require its submission in writing.
    (2) USCIS will inform the applicant that he or she must appear in 
person to receive and to acknowledge receipt of the decision of the 
asylum officer and any other accompanying material at a time and place 
designated by the asylum officer, except as otherwise provided by the 
asylum officer. An applicant's failure to appear to receive and 
acknowledge receipt of the decision will be treated as delay caused by 
the applicant for purposes of 8 CFR 208.7.
    (e) Extensions. The asylum officer will consider evidence submitted 
by the applicant together with his or her asylum application. The 
applicant must submit any documentary evidence at least 14 calendar 
days in advance of the interview date. As a matter of discretion, the 
asylum officer may consider evidence submitted within the 14-day period 
prior to the interview date or may grant the applicant a brief 
extension of time during which the applicant may submit additional 
evidence. Any such extension will be treated as a delay caused by the 
applicant for purposes of Sec.  208.7.
* * * * *

0
6. Revise Sec.  208.10 to read as follows:


Sec.  208.10  Failure to appear for an interview before an asylum 
officer or for a biometric services appointment for the asylum 
application.

    (a) Failure to appear for asylum interview or for a biometric 
services appointment. (1) The failure to appear for an interview or 
biometric services appointment may result in:
    (i) Waiver of the right to an interview or adjudication by an 
asylum officer;
    (ii) Dismissal of the application for asylum;
    (iii) Referral of the applicant to the immigration court; or,
    (iv) Denial of employment authorization.
    (2) There is no requirement for USCIS to send a notice to an 
applicant that he or she failed to appear for his or her asylum 
interview or biometrics services appointment prior to issuing a 
decision on the application. Any rescheduling request for the asylum 
interview that has not yet been fulfilled on the date the application 
for employment authorization is filed under 8 CFR 274a.12(c)(8) will be 
treated as an applicant-caused delay for purposes of 8 CFR 208.7.
    (b) Rescheduling missed appointments. USCIS, in its sole 
discretion, may excuse the failure to appear for an interview or 
biometrics services appointment and reschedule the missed appointment 
as follows:
    (1) Asylum Interview. If the applicant demonstrates that he or she 
was unable to make the appointment due to exceptional circumstances.
    (2) Biometrics services appointment. USCIS may reschedule the 
biometrics services appointment as provided in 8 CFR part 103.

[[Page 38628]]

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
7. The authority citation for part 274a is revised to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1105a, 1324a; 48 U.S.C. 1806; 8 
CFR part 2; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 
114-74, 129 Stat. 599.


0
8. Amend Sec.  274a.12 by:
0
a. In paragraph (c) introductory text, adding the phrase ``, unless 
otherwise provided in this chapter'' after the phrase ``petition is 
pending''; and
0
b. Revising paragraphs (c)(8) and (11).
    The revisions read as follows:


Sec.  274a.12  Classes of aliens authorized to accept employment.

* * * * *
    (c) * * *
    (8) An alien who has filed a complete application for asylum or 
withholding of deportation or removal pursuant to 8 CFR parts 103 and 
208, whose application has not been decided, and who is eligible to 
apply for employment authorization under 8 CFR 208.7 because the 365-
day period set forth in that section has expired. Employment 
authorization may be granted according to the provisions of 8 CFR 208.7 
of this chapter in increments to be determined by USCIS but not to 
exceed increments of two years.
* * * * *
    (11) Except as provided in paragraphs (b)(37) and (c)(34) of this 
section, 8 CFR 212.19(h)(4), and except for aliens paroled from custody 
after having established a credible fear or reasonable fear of 
persecution or torture under 8 CFR 208.30, an alien paroled into the 
United States temporarily for urgent humanitarian reasons or 
significant public benefit pursuant to section 212(d)(5) of the Act.
* * * * *

0
9. Amend Sec.  274a.13 by revising paragraphs (a)(1) and (2) and (d)(3) 
to read as follows:


Sec.  274a.13  Application for employment authorization.

    (a) * * *
    (1) Aliens seeking initial or renewed employment authorization 
under 8 CFR 274a.12(c) must apply on the form designated by USCIS with 
prescribed fee(s) and in accordance with the form instructions. The 
approval of applications filed under 8 CFR 274a.12(c) is within the 
discretion of USCIS. Where economic necessity has been identified as a 
factor, the alien must provide information regarding his or her assets, 
income, and expenses.
    (2) An initial employment authorization request for asylum 
applicants or for renewal or replacement of employment authorization 
submitted in relation to a pending claim for asylum, in accordance with 
8 CFR 208.7 and 8 CFR 274a.12(c)(8), must be filed on the form 
designated by USCIS in accordance with the form instructions with 
prescribed fee(s).
* * * * *
    (d) * * *
    (3) Termination. Employment authorization automatically extended 
pursuant to paragraph (d)(1) of this section will automatically 
terminate the earlier of up to 180 days after the expiration date of 
the Employment Authorization Document (Form I-766), or on the date 
USCIS denies the request for renewal. Employment authorization granted 
under 8 CFR 274a.12(c)(8) and automatically extended pursuant to 
paragraph (d)(1) of this section is further subject to the termination 
provisions of 8 CFR 208.7(b)(2).
* * * * *

0
10. Amend Sec.  274a.14 by:
0
(a) Removing ``or'' at the end of paragraph (a)(1)(ii);
0
(b) Removing the period and adding in its place ``; or'' at the end of 
paragraph (a)(1)(iii); and
0
(c) Adding paragraph (a)(1)(iv).
    The addition reads as follows:


Sec.  274a.14  Termination of employment authorization.

    (a) * * *
    (1) * * *
    (iv) Automatic termination is provided elsewhere in this chapter.

Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel, U.S. 
Department of Homeland Security.
[FR Doc. 2020-13544 Filed 6-22-20; 4:15 pm]
BILLING CODE 9111-97-P