[Federal Register Volume 87, Number 51 (Wednesday, March 16, 2022)]
[Rules and Regulations]
[Pages 14757-14763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05636]



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 Rules and Regulations
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 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
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  Federal Register / Vol. 87, No. 51 / Wednesday, March 16, 2022 / 
Rules and Regulations  

[[Page 14757]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 208

[CIS No. 2671-20; DHS Docket No. USCIS-2020-0017]
RIN 1615-AC59


Asylum Interview Interpreter Requirement Modification Due to 
COVID-19

AGENCY: U.S. Citizenship and Immigration Services (USCIS), Department 
of Homeland Security (DHS).

ACTION: Temporary final rule; extension.

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SUMMARY: The Department of Homeland Security (DHS) is extending, for a 
third time, the effective date (for 365 days) of its temporary final 
rule that modified certain regulatory requirements to help ensure that 
USCIS may continue with affirmative asylum adjudications during the 
COVID-19 pandemic.

DATES: This temporary final rule is effective from March 16, 2022 
through March 16, 2023. As of March 16, 2022, the expiration date of 
the temporary final rule published at 85 FR 59655 (Sept. 23, 2020), 
which was extended at 86 FR 15072 (Mar. 22, 2021), and at 86 FR 51781 
(Sept. 17, 2021), is further extended from March 16, 2022 through March 
16, 2023. If conditions improve and the health concerns posed by COVID-
19 are resolved before this temporary final rule expires, DHS will 
consider publishing a final rule terminating this temporary final rule 
prior to the expiration of this 365-day extension.

FOR FURTHER INFORMATION CONTACT: Ren[aacute] Cutlip-Mason, Chief, 
Division of Humanitarian Affairs, Office of Policy and Strategy, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
5900 Capital Gateway Drive, Camp Springs, MD 20588-0009; telephone 
(240) 721-3000 (not a toll-free call).
    Individuals with hearing or speech impairments may access the 
telephone numbers above via TTY by calling the toll-free Federal 
Information Relay Service at 1-877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION:

I. Legal Authority To Issue This Rule and Other Background

A. Legal Authority

    The Secretary of Homeland Security (Secretary) takes this action 
pursuant to his authorities concerning asylum determinations. The 
Homeland Security Act of 2002 (HSA), Public Law 107-296, as amended, 
transferred many functions related to the execution of Federal 
immigration law to the newly created DHS. The HSA amended the 
Immigration and Nationality Act (INA or the Act), charging the 
Secretary ``with the administration and enforcement of this chapter and 
all other laws relating to the immigration and naturalization of 
aliens,'' INA 103(a)(1), 8 U.S.C. 1103(a)(1), and granted the Secretary 
the power to take all actions ``necessary for carrying out'' the 
immigration laws, including the INA, id. 1103(a)(3). The HSA also 
transferred to DHS responsibility for affirmative asylum applications 
made outside the removal context. See 6 U.S.C. 271(b)(3). That 
authority has been delegated within DHS to U.S. Citizenship and 
Immigration Services (USCIS). USCIS asylum officers determine, in the 
first instance, whether a noncitizen's affirmative asylum application 
should be granted. See 8 CFR 208.4(b), 208.9. With limited exception, 
the Department of Justice Executive Office for Immigration Review has 
exclusive authority to adjudicate asylum applications filed by 
noncitizens who are in removal proceedings. See INA 103(g), 240; 8 
U.S.C. 1103(g), 1229a. This broad division of functions and authorities 
informs the background of this rule.

B. Legal Framework for Asylum

    Asylum is a discretionary benefit that generally can be granted to 
eligible noncitizens who are physically present or who arrive in the 
United States, irrespective of their status, subject to the 
requirements in section 208 of the INA, 8 U.S.C. 1158, and implementing 
regulations, see 8 CFR parts 208, 1208.
    Section 208(d)(5) of the INA, 8 U.S.C. 1158(d)(5), imposes several 
mandates and procedural requirements for the consideration of asylum 
applications. Congress also specified that the Attorney General and 
Secretary of Homeland Security ``may provide by regulation for any 
other conditions or limitations on the consideration of an application 
for asylum,'' so long as those limitations are ``not inconsistent with 
this chapter.'' INA 208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B). Thus, the 
current statutory framework leaves the Attorney General (and, after the 
HSA, also the Secretary) significant discretion to regulate 
consideration of asylum applications. USCIS regulations promulgated 
under this authority set agency procedures for asylum interviews, and 
require that applicants unable to communicate in English ``must 
provide, at no expense to the Service, a competent interpreter fluent 
in both English and the applicant's native language or any other 
language in which the applicant is fluent.'' 8 CFR 208.9(g). This 
requirement means that all asylum applicants who cannot communicate in 
English must bring an interpreter to their interview. Doing so, as 
required by the regulation, poses a serious health risk because of the 
COVID-19 pandemic.
    Accordingly, this temporary final rule extends the rule published 
at 85 FR 59655, for a third time, to continue to mitigate the spread of 
COVID-19 by seeking to slow the transmission and spread of the disease 
during asylum interviews before USCIS asylum officers. To that end, 
this temporary final rule will extend the requirement in certain 
instances allowing noncitizens interviewed for this discretionary 
asylum benefit to use USCIS-provided interpreters during affirmative 
asylum interviews. This temporary final rule also provides that if a 
USCIS interpreter is unavailable, USCIS will either reschedule the 
interview and attribute the interview delay to USCIS for the purposes 
of employment authorization under 8 CFR 208.7, or USCIS may, in its 
discretion, allow the applicant to provide an interpreter.

C. The COVID-19 Pandemic

    On January 31, 2020, the Secretary of Health and Human Services 
(HHS) declared a public health emergency under section 319 of the 
Public Health Service Act (42 U.S.C. 247d), in response to COVID-19, 
which is caused

[[Page 14758]]

by the SARS-CoV-2 virus.\1\ Effective January 14, 2022, HHS renewed the 
determination that ``a public health emergency exists and has existed 
since January 27, 2020, nationwide.'' \2\ On February 18, 2022, the 
President issued a continuation of the National Emergency concerning 
the COVID-19 pandemic.\3\ As of March 4, 2022, there have been over 440 
million confirmed cases of COVID-19 identified globally, resulting in 
more than 5.9 million deaths.\4\ Approximately 78,428,884 cases have 
been identified in the United States, with about 242,345 new cases 
identified in the 7 days preceding February 28, 2022, and approximately 
947,625 reported deaths due to the disease.\5\ A more detailed 
background discussion of the COVID-19 pandemic is found in the original 
temporary final rule, as well as in the first and second extensions of 
the rule, and USCIS incorporates the discussions of the pandemic into 
this extension. See 85 FR 59655; 86 FR 15072; 86 FR 51781.
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    \1\ HHS, Determination that a Public Health Emergency Exists 
(Jan. 31, 2020), https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx.
    \2\ HHS, Renewal of Determination that a Public Health Emergency 
Exists (Jan. 14, 2022), https://aspr.hhs.gov/legal/PHE/Pages/COVID19-14Jan2022.aspx.
    \3\ Notice on the Continuation of the National Emergency 
Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic, 87 FR 
10289 (Feb. 23, 2022); Proclamation 9994 of March 13, 2020, 
Declaring a National Emergency Concerning the Coronavirus Disease 
(COVID-19) Outbreak, 85 FR 15337 (Mar. 18, 2020).
    \4\ WHO Coronavirus (COVID-19) Dashboard (updated Mar. 4, 2022), 
https://covid19.who.int/.
    \5\ Id.
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    Since publication of the original temporary final rule, variants of 
the virus that causes COVID-19 have been reported in the United 
States.\6\ Evidence suggests that some variants may spread more quickly 
and easily than others and at least one variant may cause more severe 
illness than other variants.\7\ The COVID-19 Delta and Omicron variants 
were labeled as Variants of Concern (VOC) by the HHS SARS-CoV-2 
Interagency Group (SIG), which defines VOCs as those with evidence of 
increased transmissibility and severe disease, reduced effectiveness of 
treatments or vaccines, and diagnostic detection failures.\8\ Following 
the first Omicron case reported in the United States, on December 1, 
2021, there was a rapid increase in infections and hospitalizations 
with multiple large clusters of outbreaks that peaked in mid-January 
2022.\9\ Since mid-January 2022, the number of COVID-19 infections and 
hospitalizations in the United States has decreased (as of March 6, 
2022), although COVID-19 infections continue to be reported.\10\
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    \6\ Centers for Disease Control and Prevention (CDC), SARS-CoV-2 
Variant Classifications and Definitions (updated Dec. 1, 2021), 
https://www.cdc.gov/coronavirus/2019-ncov/variants/variant-classifications.html.
    \7\ CDC, What You Need to Know About Variants (updated Feb. 25, 
2022), https://www.cdc.gov/coronavirus/2019-ncov/variants/variant.html.
    \8\ CDC, SARS-CoV-2 Variant Classifications and Definitions.
    \9\ CDC, Rapid Increase of Omicron Variant Infections in the 
United States: Management of Healthcare Personnel with SARS-CoV-2 
Infection or Exposure (Dec. 24, 2021), https://emergency.cdc.gov/han/2021/pdf/CDC_HAN_460.pdf; CDC, Potential Rapid Increase of 
Omicron Variant Infections in the United States (updated Dec. 20, 
2021), https://www.cdc.gov/coronavirus/2019-ncov/science/forecasting/mathematical-modeling-outbreak.html; CDC, COVID Data 
Tracker--Trends in Number of COVID-19 Cases and Deaths in the U.S. 
Reported to CDC, by State/Territory (updated Mar. 6, 2022), https://covid.cdc.gov/covid-data-tracker/#trends_dailycases; CDC, COVID Data 
Tracker: New Admissions of Patients with Confirmed COVID-19 Per 
100,000 Population by Age Group, United States (updated Mar. 6, 
2022), https://covid.cdc.gov/covid-data-tracker/#new-hospital-admissions.
    \10\ CDC, COVID Data Tracker--Trends in Number of COVID-19 Cases 
and Deaths in the U.S. Reported by CDC, by State/Territory; CDC, 
COVID Data Tracker: New Admissions of Patients with Confirmed COVID-
19 Per 100,000 Population by Age Group, United States.
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    The U.S. Food and Drug Administration (FDA) granted approval for 
the Pfizer-BioNTech COVID-19 vaccine for individuals 16 years and older 
in August 2021 \11\ and the Moderna COVID-19 vaccine for individuals 18 
years and older in January 2022.\12\ While the vaccine is widely 
accessible in the United States, geographic data indicates a wide 
disparity in the percentages of fully vaccinated individuals by state, 
ranging from 50.3 percent in Alabama to 80.9 percent in Rhode Island, 
not taking into account United States territories.\13\ Although the FDA 
has determined that approved COVID-19 vaccines are effective in 
eligible individuals, their effectiveness at preventing infection wanes 
over time, and thus, CDC guidance states that eligible individuals 
should receive COVID-19 vaccine booster shots after certain periods of 
time.\14\ CDC's decision to begin booster shots in late 2021 was based 
on information about vaccine effectiveness and the impact of variants 
on vaccine effectiveness.\15\ A January 2022 study indicated that the 
COVID-19 pandemic is driven by seasonality.\16\ Another study indicated 
that seasonal factors, alongside the increased demand for healthcare 
resources due to seasonal influenza, should be taken into account when 
developing future intervention measures.\17\
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    \11\ FDA, FDA Approves First COVID-19 Vaccine (Aug. 23, 2021), 
https://www.fda.gov/news-events/press-announcements/fda-approves-first-covid-19-vaccine.
    \12\ CDC, Moderna COVID-19 Vaccine (also known as Spikevax) 
Overview and Safety (updated Feb. 1, 2022), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/Moderna.html.
    \13\ CDC, COVID Data Tracker--COVID-19 Vaccinations in the 
United States (updated Mar. 6, 2022), https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-total-admin-rate-total.
    \14\ CDC, COVID-19 Vaccine Booster Shots (updated Feb, 2, 2022), 
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/booster-shot.html; FDA, COVID-19 Frequently Asked Questions (updated Jan. 7, 
2022), https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/covid-19-frequently-asked-questions; CDC, Stay Up to Date with Your Vaccines (updated Jan. 16, 
2022), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/stay-up-to-date.html.
    \15\ CDC, COVID-19 Vaccine Booster Shots.
    \16\ Mario Coccia, COVID-19 Pandemic Over 2020 (With Lockdowns) 
and 2021 (With Vaccinations): Similar Effects for Seasonality and 
Environmental Factors, 208 Environmental Research (2022), https://www.sciencedirect.com/science/article/pii/S001393512200038X?via%3Dihub (last visited Mar. 4, 2022).
    \17\ NIH, The role of seasonality in the spread of COVID-19 
pandemic (Feb. 19, 2021), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7892320/.
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    Ongoing research demonstrates that while there is high 
effectiveness of approved vaccines among eligible individuals, fully 
vaccinated individuals continue to experience breakthrough COVID-19 
infections and may be either symptomatic or asymptomatic.\18\ 
Nevertheless, CDC reports show that individuals who are unvaccinated 
have a greater risk of testing positive for COVID-19 and a greater risk 
of dying from COVID-19 than individuals who are fully vaccinated.\19\
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    \18\ CDC, The Possibility of COVID-19 after Vaccination: 
Breakthrough Infections (updated Dec. 17, 2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/why-measure-effectiveness/breakthrough-cases.html.
    \19\ CDC, Rate of COVID-19 Cases and Deaths by Vaccination 
Status, https://covid.cdc.gov/covid-data-tracker/#rates-by-vaccine-status, (last visited Mar. 7, 2022).
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    On February 25, 2022, CDC updated the framework for monitoring the 
spread of COVID-19 in communities across the United States.\20\ The 
framework involves evaluating factors related to the severity of 
disease, including hospitalizations and hospital capacity, to help 
determine whether the level of COVID-19 and severe disease are low, 
medium, or high in a community (known as ``COVID-19 community 
levels'').\21\ Depending on the COVID-19 community level, CDC 
recommends different individual, household, and community-level 
prevention strategies,

[[Page 14759]]

which may or may not include wearing facial covers indoors.\22\ As a 
result of CDC's COVID-19 community levels guidance, the Safer Federal 
Workforce Task Force, which is led by the White House COVID-19 Response 
Team, issued updated facial covers and screening testing guidelines on 
February 28, 2022, for employees, contractors, and visitors to Federal 
buildings.\23\
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    \20\ CDC, CDC Newsroom--Transcript of CDC Media Telebriefing: 
Update on COVID-19 (Feb. 25, 2022), https://www.cdc.gov/media/releases/2022/t0225-covid-19-update.html.
    \21\ Id.
    \22\ CDC, COVID-19 Community Levels (updated Feb. 25, 2022), 
https://www.cdc.gov/coronavirus/2019-ncov/science/community-levels.html.
    \23\ Safer Federal Workforce, Mask-Wearing, https://www.saferfederalworkforce.gov/faq/mask-wearing/ (last visited Mar. 
3, 2022).
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    Widespread testing is available to confirm suspected cases of 
COVID-19 infection but testing performance varies by type, with antigen 
tests being less sensitive than Nucleic Acid Amplification Tests 
(NAATs).\24\ This may require symptomatic people with negative tests to 
retest in order to confirm results.\25\ CDC states that the predictive 
value of a test will also depend on COVID-19 community levels.\26\ The 
use of NAATs in areas with a high COVID-19 community level and 
increased testing demand may result in test processing delays while a 
highly specific antigen test may result in many false positives in an 
area where infection rates are low.\27\ This is because test predictive 
values are dependent on pretest probability, or the COVID-19 community 
level and the clinical context of those being tested.\28\ CDC guidance 
states that individuals who were exposed to a person with COVID-19 may 
or may not need to self-quarantine depending on vaccination status and 
whether they develop symptoms.\29\
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    \24\ CDC, Overview of Testing for SARS-CoV-2 (COVID-19) (updated 
Feb. 11, 2022), https://www.cdc.gov/coronavirus/2019-ncov/hcp/testing-overview.html.
    \25\ Id.
    \26\ Id.
    \27\ Id.
    \28\ Id.
    \29\ CDC, Quarantine & Isolation (updated Jan. 27, 2022), 
https://www.cdc.gov/coronavirus/2019-ncov/your-health/quarantine-isolation.html.
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II. Purpose of This Temporary Final Rule

    USCIS continues its efforts to protect the health and safety of its 
employees and the public by requiring all federal employees, on-site 
contractors, and visitors to follow local USCIS guidance on physical 
distancing and workplace protection guidance consistent with CDC and 
agency guidance.\30\ Also, USCIS regularly updates its guidance on 
facial covers for all employees and members of the public to reflect 
evolving CDC guidance.\31\
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    \30\ USCIS Response to COVID-19 (updated Jan. 25, 2022), https://www.uscis.gov/about-us/uscis-response-to-covid-19.
    \31\ Id.
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    USCIS has conducted 32,012 total asylum interviews between 
September 23, 2020 and March 7, 2022.\32\ The original temporary final 
rule, implemented on September 23, 2020, and its extensions implemented 
on March 22 and September 20, 2021, and other noted public safety 
measures have helped mitigate the impact of COVID-19 and have been 
effective in keeping the USCIS workforce and the public safe. As of 
February 25, 2022, there have been 4,061 confirmed cases of COVID-19 
exposure among USCIS employees and contractors. The overall percentage 
of positive cases reported among USCIS employees since the start of the 
pandemic is 14.3 percent.
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    \32\ Between September 23, 2020 and March 10, 2021, USCIS 
conducted 7,764 asylum interviews. See 86 FR at 15074. Between March 
10, 2021, and August 8, 2021, USCIS conducted 9,136 asylum 
interviews. See 86 FR at 51784.
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    Therefore, DHS has determined that it is in the best interest of 
the public and USCIS employees and contractors to extend the temporary 
final rule for 365 days. Under this third extension, USCIS will 
continue requiring asylum applicants who are unable to proceed with the 
interview in English to use government-provided telephonic contract 
interpreters if the applicants speak one of the 47 languages found on 
the Required Languages for Interpreter Services Blanket Purchase 
Agreement/U.S. General Services Administration Language Schedule (``GSA 
Schedule''). If the applicant does not speak or elects to speak a 
language not on the GSA Schedule, the applicant will be required to 
bring his or her own interpreter who is fluent in English and the 
elected language not on the GSA schedule, to the interview. In the 
second extension of the temporary final rule, published at 85 FR 59655, 
DHS also amended 8 CFR 208.9(h)(1) by allowing, in USCIS' discretion, 
an applicant for asylum to provide an interpreter when a USCIS 
interpreter is unavailable. See 86 FR 51781. Specifically, if a USCIS 
interpreter is unavailable, USCIS will either reschedule the interview 
and attribute the interview delay to USCIS for the purposes of 
employment authorization pursuant to 8 CFR 208.7, or USCIS may, in its 
discretion, allow the applicant to provide an interpreter.
    DHS incorporates into this third extension, the justifications from 
the original temporary final rule and all subsequent extensions. The 
measures implemented since the original temporary final rule to protect 
employees, asylum applicants, and other members of the public, continue 
to be a priority for USCIS. Additionally, the modification to the 
second extension (i.e., USCIS exercising discretion to allow an asylum 
applicant to bring an interpreter to the interview if a contract 
interpreter is unavailable), will remain in place. The modification has 
given USCIS flexibility to plan ahead in the limited circumstances when 
a contract interpreter is expected to be unavailable for an asylum 
interview, reducing the likelihood of canceled interviews and unused 
office space. This third extension also incorporates the discussions on 
the overall benefits of providing telephonic contract interpreters in 
reducing the risk of contracting COVID-19 for applicants, attorneys, 
interpreters, and USCIS employees, from the original temporary final 
rule and all extensions.

III. Discussion of Regulatory Change: 8 CFR 208.9(h) 33
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    \33\ The interpreter interview provisions can be found in two 
parallel sets of regulations: Regulations under the authority of DHS 
are contained in 8 CFR part 208; and regulations under the authority 
of the Department of Justice (DOJ) are contained in 8 CFR part 1208. 
Each set of regulations contains substantially similar provisions 
regarding asylum interview processes, and each articulates the 
interpreter requirement for interviews before an asylum officer. 
Compare 8 CFR 208.9(g), with 8 CFR 1208.9(g). This temporary final 
rule and its extensions revise only the DHS regulations at 8 CFR 
208.9. Notwithstanding the language of the parallel DOJ regulations 
in 8 CFR 1208.9, as of the effective date of this action, the 
revised language of 8 CFR 208.9(h) is binding on DHS and its 
adjudications for 365 days. DHS is not bound by the DOJ regulation 
at 8 CFR 1208.9(g).
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    DHS has determined that there are reasonable grounds for 
considering potential exposure to SARS-CoV-2, including any emerging 
variants, as a public health concern and that these grounds are 
sufficient to extend the temporary final rule modifying the interpreter 
requirements for asylum applicants in order to lower the number of in-
person attendees at asylum interviews. For 365 days following 
publication of this temporary final rule, DHS will continue to require 
non-English speaking asylum applicants appearing before USCIS to 
proceed with the asylum interview using USCIS' interpreter services if 
they are fluent in one of the 47 languages as discussed in the 
temporary final rule at 85 FR at 59657.\34\ Additionally, as provided 
in 8 CFR 208.9(h)(1), DHS will continue to allow, in USCIS' discretion, 
an applicant for asylum to provide an

[[Page 14760]]

interpreter when a USCIS interpreter is unavailable. In these limited 
circumstances, if a USCIS interpreter is unavailable, USCIS will either 
reschedule the interview and attribute the interview delay to USCIS for 
the purposes of employment authorization pursuant to 8 CFR 208.7, or 
USCIS may, in its discretion, allow the applicant to provide an 
interpreter. The interpreter will be required to follow USCIS COVID-19 
protocols in place at the time of the interview, including sitting in a 
separate office. Once this temporary final rule is no longer in effect, 
asylum applicants unable to proceed with an affirmative asylum 
interview based on a Form I-589, Application for Asylum and for 
Withholding of Removal, in English before a USCIS asylum officer will 
be required to provide their own interpreters under 8 CFR 208.9(g).
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    \34\ DHS notes that this extension does not modify 8 CFR 
208.9(g); rather the extension of the temporary final rule is 
written so that asylum interviews occurring while the temporary 
final rule is effective will be bound by the requirements at 8 CFR 
208.9(h).
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    Given the unique nature of the pandemic and the multiple challenges 
it has presented in the context of USCIS operations, the agency has had 
to modify its policies and procedures to adapt. Through the original 
temporary final rule and the first and second extensions, USCIS adapted 
and modified its procedures to keep the workforce and public safe while 
also striving to serve the customer. Outside of this rule, USCIS has 
adapted to the pandemic by developing electronic workflows for 
conducting interviews and completing the adjudication, and by 
monitoring language trends and interpreter availability.
    DHS noted in the original temporary final rule, first extension, 
and second extension with modification, that it would evaluate the 
public health concerns and resource allocations to determine whether to 
extend the rule. DHS has determined that extending this temporary final 
rule is necessary for public safety. Accordingly, DHS is extending this 
temporary final rule for 365 days unless it is necessary to once again 
extend at a later date. This temporary final rule continues to apply to 
all affirmative asylum interviews conducted by USCIS across the nation. 
USCIS has determined that an extension of 365 days is appropriate given 
that: (1) The pandemic is ongoing; \35\ (2) the highly contagious 
Omicron variant is circulating in the United States; \36\ (3) while 
vaccines are widely available, data indicates a wide disparity in the 
percentages of fully vaccinated individuals by state, and fully 
vaccinated individuals continue to experience breakthrough SARS-CoV-2 
infections; \37\ and (4) although as of March 6, 2022, hospitalizations 
have decreased from January 2022, when they reached their highest 7-day 
average admission rate since the start of the pandemic, individuals 
continue to be hospitalized for COVID-19.\38\
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    \35\ See 86 FR 11599; 85 FR 15337; HHS, Renewal of Determination 
that a Public Health Emergency exists.
    \36\ CDC, Omicron Variant: What You Need to Know (updated Feb. 
2, 2022), https://www.cdc.gov/coronavirus/2019-ncov/variants/omicron-variant.html; CDC, COVID Data Tracker: Variant Proportions 
(updated Mar. 1, 2022), https://covid.cdc.gov/covid-data-tracker/#variant-proportions.
    \37\ CDC, COVID Data Tracker--COVID-19 Vaccinations in the 
United States; CDC, The Possibility of COVID-19 after Vaccination: 
Breakthrough Infections.
    \38\ CDC, COVID Data Tracker: New Admissions of Patients with 
Confirmed COVID-19 Per 100,000 Population by Age Group, United 
States.
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    USCIS first published this temporary final rule on September 23, 
2020, and subsequently found it necessary to publish two extensions to 
continue its mitigation efforts because of the ongoing pandemic.\39\ 
The initial temporary final rule and each extension had an effective 
period of 180 days, which has resulted in this temporary final rule 
being in effect for 540 days.\40\ Considering the period of time that 
the pandemic has been ongoing, the number of times USCIS has had to 
extend this temporary final rule, the continued uncertainty about 
emerging variants, and the inability to predict when the COVID-19 
pandemic will end, USCIS has determined that an additional extension of 
180 days will be insufficient and a 365-day extension will better serve 
the needs of the public and the agency. Extending this temporary final 
rule for 365 days will provide the public and USCIS with greater 
certainty and predictability about how long these mitigation efforts 
will remain in place. That is, with the additional time, the agency can 
proactively plan ahead and focus on providing consistent services to 
asylum applicants rather than expending limited resources frequently 
changing procedures and re-issuing guidance to staff and the public.
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    \39\ See 85 FR 59655 (Sept. 23, 2020); 86 FR 15072 (Mar. 22, 
2021); 86 FR 51781 (Sept. 17, 2021).
    \40\ Id.
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    Recognizing that the COVID-19 pandemic is ongoing and 
unpredictable, DHS continues to constantly evaluate the public health 
concerns and its mitigation efforts. Within the next 365 days, it is 
possible that conditions may either improve or worsen. If conditions 
improve and the health concerns posed by COVID-19 are resolved before 
this temporary final rule expires, DHS will consider publishing a final 
rule terminating this temporary final rule prior to the expiration of 
this 365-day extension. However, if prior to the expiration of this 
extension, conditions remain static or worsen, DHS will again evaluate 
the public health concerns and resource allocations to determine if 
another extension is appropriate to further the goals of promoting 
public safety. After such evaluation and if another extension is 
determined to be necessary, DHS would publish any such extension via a 
rulemaking in the Federal Register.

IV. Regulatory Requirements

A. Administrative Procedure Act (APA)

    DHS is issuing this extension as a temporary final rule pursuant to 
the APA's ``good cause'' exception. 5 U.S.C. 553(b)(B). DHS may forgo 
notice-and-comment rulemaking and a delayed effective date because the 
APA provides an exception from those requirements when an agency ``for 
good cause finds . . . that notice and public procedure thereon are 
impracticable, unnecessary, or contrary to the public interest.'' 5 
U.S.C. 553(b)(B); see 5 U.S.C. 553(d)(3).
    The good cause exception for forgoing notice-and-comment rulemaking 
``excuses notice and comment in emergency situations, or where delay 
could result in serious harm.'' Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. 
Cir. 2004). Although the good cause exception is ``narrowly construed 
and only reluctantly countenanced,'' Tenn. Gas Pipeline Co. v. FERC, 
969 F.2d 1141, 1144 (D.C. Cir. 1992), DHS has appropriately invoked the 
exception in this case, for the reasons discussed in this temporary 
final rule. When it became clear to DHS that the continuing public 
health emergency would warrant another extension of this temporary 
final rule, there was not sufficient time to provide notice and receive 
comment before the second extension would expire. Additionally, on 
multiple occasions, agencies have relied on this exception to 
promulgate both communicable disease-related \41\ and immigration-
related \42\ interim rules, as

[[Page 14761]]

well as to extend such rules.\43\ Recently, the Department of State 
(DOS) and the Federal Emergency Management Agency (FEMA) promulgated or 
extended rules to mitigate or address the COVID-19 pandemic. On 
December 13, 2021, DOS issued a temporary final rule, Waiver of 
Personal Appearance and In-Person Oath Requirement for Certain 
Immigrant Visa Applicants Due to COVID-19, which provides flexibility 
for consular officers to waive the personal appearance of certain 
repeat immigrant visa applicants. DOS made the temporary final rule 
effective for 24 months based upon the belief that after 24 months the 
pandemic will be less acute and ordinary travel resumes.\44\ On April 
10, 2020, FEMA published a temporary final rule allocating certain 
health and medical resources for domestic use, so that these resources 
may not be exported from the United States without explicit approval by 
FEMA.\45\ Citing the spread of COVID-19 and the resulting strain on the 
country's healthcare systems, FEMA explained the measures described in 
the rule were imperative and necessary to respond to the pandemic.\46\ 
FEMA's original temporary final rule was extended on August 10, 2020, 
and then extended again on December 31, 2020, until June 30, 2021.\47\
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    \41\ HHS Control of Communicable Diseases; Foreign Quarantine, 
85 FR 7874 (Feb. 12, 2020) (interim final rule to enable the CDC 
``to require airlines to collect, and provide to CDC, certain data 
regarding passengers and crew arriving from foreign countries for 
the purposes of health education, treatment, prophylaxis, or other 
appropriate public health interventions, including travel 
restrictions''); Control of Communicable Diseases; Restrictions on 
African Rodents, Prairie Dogs, and Certain Other Animals, 68 FR 
62353 (Nov. 4, 2003) (interim final rule to modify restrictions to 
``prevent the spread of monkeypox, a communicable disease, in the 
United States.'').
    \42\ See, e.g., Visas: Documentation of Nonimmigrants Under the 
Immigration and Nationality Act, as Amended, 81 FR 5906, 5907 (Feb. 
04, 2016) (interim rule citing good cause to immediately require a 
passport and visa from certain H2-A Caribbean agricultural workers 
to avoid ``an increase in applications for admission in bad faith by 
persons who would otherwise have been denied visas and are seeking 
to avoid the visa requirement and consular screening process during 
the period between the publication of a proposed and a final 
rule''); Suspending the 30-Day and Annual Interview Requirements 
From the Special Registration Process for Certain Nonimmigrants, 68 
FR 67578, 67581 (Dec. 02, 2003) (interim rule claiming the good 
cause exception for suspending certain automatic registration 
requirements for nonimmigrants because ``without [the] regulation 
approximately 82,532 aliens would be subject to 30-day or annual re-
registration interviews'' over a six-month period).
    \43\ See, e.g., Temporary Changes to Requirements Affecting H-2A 
Nonimmigrants Due To the COVID-19 National Emergency: Partial 
Extension of Certain Flexibilities, 85 FR 51304 (Aug. 20, 2020) 
(temporary final rule extending April 20, 2020 temporary final 
rule); CDC, Temporary Halt in Residential Evictions To Prevent the 
Further Spread of COVID-19, 86 FR 34010 (July 01, 2021) (extension 
order).
    \44\ See 86 FR 70735.
    \45\ See 85 FR 48113 (Aug. 10, 2020) and 85 FR 20195 (Dec. 31, 
2020), respectively.
    \46\ Id.
    \47\ See 85 FR 86835.
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    DHS is publishing this third extension as a temporary final rule 
because of the continuing COVID-19 pandemic and incorporates into this 
extension the discussion of good cause from the original temporary 
final rule and its extensions. As discussed earlier in this preamble, 
effective January 14, 2022, the Secretary of HHS renewed the 
determination that ``a public health emergency exists and has existed 
since January 27, 2020 nationwide.'' \48\ On February 18, 2022, the 
President issued a notice on the continuation of the state of the 
National Emergency concerning the COVID-19 pandemic.\49\
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    \48\ HHS, Renewal of Determination That A Public Health 
Emergency Exists; Notice on the Continuation of the National 
Emergency Concerning the Coronavirus Disease 2019 (COVID-19) 
Pandemic; Proclamation 9994 of March 13, 2020, Declaring a National 
Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak.
    \49\ See 87 FR 10289.
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    As of March 4, 2022, there have been over 440 million confirmed 
cases of COVID-19 identified globally, resulting in more than 5.9 
million deaths.\50\ Approximately 78,428,884 cases have been identified 
in the United States, with about 242,345 new cases identified in the 7 
days preceding February 28, 2022, and approximately 947,625 reported 
deaths due to the disease.\51\ Additionally, CDC is monitoring several 
variants of the virus that causes COVID-19.\52\ Evidence suggests that 
some variants may spread faster and more easily than others and at 
least one variant may be associated with an increased risk of severe 
illness.\53\ Although vaccines are widely accessible, there is wide 
disparity in the percentages of vaccinated individuals by state.\54\
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    \50\ WHO Coronavirus (COVID-19) Dashboard.
    \51\ Id.
    \52\ CDC, SARS-CoV-2 Variant Classifications and Definitions.
    \53\ CDC, What You Need to Know About Variants.
    \54\ CDC, COVID Data Tracker--COVID-19 Vaccinations in the 
United States.
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    Ongoing research demonstrates that while there is high 
effectiveness of approved vaccines among eligible individuals, fully 
vaccinated individuals continue to experience breakthrough COVID-19 
infections and may be either symptomatic or asymptomatic.\55\ 
Nevertheless, CDC reports show that individuals who are unvaccinated 
have a greater risk of testing positive for COVID-19 and a greater risk 
of dying from COVID-19 than individuals who are fully vaccinated.\56\ 
Given the continuing national emergency caused by COVID-19, there are 
still urgent and compelling circumstances to extend and continue this 
temporary final rule. USCIS cannot predict when the pandemic will end 
and believes that it is necessary to extend and continue this temporary 
final rule for another 365 days or until conditions improve and the 
health concerns posed by COVID-19 are mitigated to such a degree that 
these safety efforts are no longer necessary.
---------------------------------------------------------------------------

    \55\ CDC, The Possibility of COVID-19 after Vaccination: 
Breakthrough Infections.
    \56\ CDC, Rate of COVID-19 Cases and Deaths by Vaccination 
Status.
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    Throughout the COVID-19 pandemic, USCIS has continued to experience 
an increase in the affirmative asylum caseload, which, in turn, has 
created challenges in accommodating the interpretation needs of asylum 
applicants. Surges in other case types have also required USCIS to 
divert contract interpreter resources away from affirmative asylum. The 
increases continue presenting challenges to the agency and thus require 
USCIS to keep these procedures in place for an additional 365 days.
    For the reasons stated, including the need to be responsive to the 
operational demands and challenges caused by the ongoing COVID-19 
pandemic, DHS believes it has good cause to determine that ordinary 
notice and comment procedure is impracticable for this temporary 
action, and that moving expeditiously to make this change is in the 
best interest of the public.
    Based on the continuing health emergency, USCIS continues to 
implement mitigation measures,\57\ and concluded that the good cause 
exceptions in 5 U.S.C. 553(b)(B) and (d)(3) apply to this temporary 
final rule extension. Delaying implementation of this rule until the 
conclusion of notice-and-comment procedures and the 30-day delayed 
effective date would be impracticable and contrary to the public 
interest due to the need to continue agency operations, while 
continuing to mitigate the risks associated with the spread of COVID-
19.
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    \57\ See USCIS Response to COVID-19.
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    As of March 7, 2022, USCIS had 440,185 asylum applications, on 
behalf of 690,172 noncitizens, pending final adjudication. Ninety-five 
percent of these pending applications are awaiting an interview by an 
asylum officer. The USCIS backlog will continue to increase at a faster 
pace if USCIS is unable to safely and efficiently conduct asylum 
interviews.\58\
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    \58\ DHS recognizes that the backlog has increased since the 
original temporary final rule was extended; however, if all 
applicants were required to bring their own interpreter as was done 
pre-COVID-19, the interpreter may have to sit in a separate office 
during the interview to mitigate potential COVID-19 exposure, 
thereby reducing available office space to schedule additional 
interviews in a safe manner. This would likely increase the backlog 
at a faster rate than under this rule.
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    This temporary final rule extension is promulgated as a response to 
COVID-19 and emerging variants. It is temporary, limited in application 
to only those asylum applicants who cannot proceed with the interview 
in English, and narrowly tailored to mitigate the spread

[[Page 14762]]

of COVID-19. To not extend such a measure could cause serious and far-
reaching public safety and health effects.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
requires an agency to prepare and make available to the public a 
regulatory flexibility analysis that describes the effect of the rule 
on small entities (i.e., small businesses, small organizations, and 
small governmental jurisdictions). A regulatory flexibility analysis is 
not required when a rule is exempt from notice-and-comment rulemaking.

C. Unfunded Mandates Reform Act of 1995

    This temporary final rule extension will not result in the 
expenditure by state, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more in any one year, and 
it will not significantly or uniquely affect small governments. 
Therefore, no actions were deemed necessary under the provisions of the 
Unfunded Mandates Reform Act of 1995.

D. Congressional Review Act

    OMB's Office of Information and Regulatory Affairs has determined 
that this action is not a major rule as defined by Subtitle E of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (also known 
as the Congressional Review Act). 5 U.S.C. 804(2). This rule will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.

E. Executive Order 12866 and Executive Order 13563

    Executive Orders (E.O.) 12866 and 13563 direct agencies to assess 
the costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
reducing costs, harmonizing rules, and promoting flexibility. This rule 
is designated a significant regulatory action under E.O. 12866. 
Accordingly, the Office of Management and Budget (OMB) has reviewed 
this regulation. DHS, however, is proceeding under the emergency 
provision of Executive Order 12866 Section 6(a)(3)(D) based on the need 
to move expeditiously during the current public health emergency.
    This action will continue to help asylum applicants proceed with 
their interviews in a safe manner, while protecting agency staff 
throughout the next year or until the health concerns posed by COVID-19 
are resolved. As a result of the temporary final rule and subsequent 
extensions, USCIS has conducted 32,012 total asylum interviews between 
September 23, 2020 and March 7, 2022. This third extension is not 
expected to result in any additional costs to the government. In 
addition, even with the provision that permits, at USCIS' discretion, 
an applicant for asylum to provide an interpreter when a contract 
interpreter is unavailable, there are no additional costs to the 
applicant relative to what would be the requirements if the temporary 
final rule were not extended. In those limited circumstances, the 
interpreter will still be required to follow USCIS COVID-19 protocols 
in place at the time of the interview, including, but not limited to, 
sitting in a separate office. Following those COVID-19 protocols will 
not result in any additional costs for either the applicant or the 
interpreter.
    Such contract interpreters will continue to be provided at no cost 
to the applicant. USCIS has an existing contract to provide telephonic 
interpretation and monitoring in interviews for all of its case types. 
USCIS has provided contract monitors for many years at interviews where 
the applicant brings an interpreter. In other words, almost all 
interviews that utilize a USCIS provided interpreter under this 
temporary final rule would have required instead a contracted monitor 
during asylum interviews conducted pre-pandemic. Additionally, the cost 
of monitoring and interpretation are identical under the current 
contract and monitors are no longer needed for interviews conducted 
through a USCIS-provided contract interpreter. Therefore, the continued 
extension of the temporary final rule is projected to be cost neutral 
or negligible for the government because USCIS is already paying for 
these services even without this rule.
    In the limited circumstances where a contract interpreter is 
unavailable, USCIS will either reschedule the interview and attribute 
the interview delay to USCIS for the purposes of employment 
authorization pursuant to 8 CFR 208.7, or USCIS may, in its discretion, 
allow the applicant to provide an interpreter. In such cases, the 
applicant would be in the same position they would have been without 
this action.
    DHS recognizes there are both quantitative and qualitative benefits 
that could be realized by providing an applicant for asylum the 
opportunity to bring their own interpreter when a contract interpreter 
is unavailable, such as the costs avoided that would otherwise be 
incurred due to rescheduling if a contract interpreter is unavailable--
both for the applicant and USCIS--and the overall positive effect on 
applicants of having their asylum application timely adjudicated. Once 
this rule is no longer in effect, asylum applicants unable to proceed 
with an affirmative asylum interview before a USCIS asylum officer in 
English will again be required to provide their own interpreters under 
8 CFR 208.9(g).

F. 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. 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.

G. Executive Order 12988 (Civil Justice Reform)

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

H. Paperwork Reduction Act

    This rule does not propose new, or revisions to existing, 
``collection[s] of information'' as that term is defined under the 
Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 
35, and its implementing regulations, 5 CFR part 1320. As this would 
only span 365 days, USCIS does not anticipate a need to update the Form 
I-589, Application for Asylum and for Withholding of Removal, despite 
the existing language on the form instructions regarding interpreters. 
USCIS will continue to post updates on its Form I-589 website, https://www.uscis.gov/i-589, and other asylum and relevant web pages regarding 
the interview requirements in this regulation, as well as provide 
personal notice to applicants via the interview

[[Page 14763]]

notices issued to applicants prior to their interview.

List of Subjects in 8 CFR Part 208

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

    Accordingly, for the reasons set forth in the preamble, the 
Secretary of Homeland Security amends 8 CFR part 208 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 Pub. L. 110-229; 8 CFR part 2; Pub. L. 115-218.


0
2. Effective from March 16, 2022 through March 16, 2023, amend Sec.  
208.9 by revising paragraph (h) introductory text to read as follows:


Sec.  208.9  Procedure for interview before an asylum officer.

* * * * *
    (h) Asylum applicant interpreters. For asylum interviews conducted 
between March 16, 2022, through March 16, 2023:
* * * * *

Alejandro Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2022-05636 Filed 3-15-22; 8:45 am]
BILLING CODE 9111-97-P