Federal Register, Volume 91 Issue 35 (Monday, February 23, 2026)

[Federal Register Volume 91, Number 35 (Monday, February 23, 2026)]
[Proposed Rules]
[Pages 8616-8700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-03595]

[[Page 8615]]

Vol. 91

Monday,

No. 35

February 23, 2026

Part III

Department of Homeland Security

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8 CFR Parts 208 and 274a

Employment Authorization Reform for Asylum Applicants; Proposed Rule

Federal Register / Vol. 91, No. 35 / Monday, February 23, 2026 /
Proposed Rules

[[Page 8616]]

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 208 and 274a

[CIS No. 2799-25; DHS Docket No. USCIS-2025-0370]
RIN 1615-AC97

Employment Authorization Reform for Asylum Applicants

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Department of Homeland Security (DHS) proposes to
modify regulations governing applications for asylum and withholding of
removal (asylum applications) and employment authorization based on a
pending asylum application. The proposed rule would change filing and
eligibility requirements for aliens requesting employment authorization
and an employment authorization document (EAD) based on a pending
asylum application. The changes include pausing acceptance of EAD
applications from asylum applicants during periods when affirmative
asylum average processing time exceeds 180 days, extending the waiting
period to apply for employment authorization to 365 days, changing EAD
application processing time requirements, and adding eligibility
requirements.

DATES: Comments on this proposed rule, including the proposed
information collections, must be received on or before April 24, 2026.
The electronic Federal Docket Management System will accept comments
prior to midnight Eastern time at the end of that day.

ADDRESSES: You may submit comments on the entirety of this proposed
rulemaking package, identified by DHS Docket No. 2025-0370, through the
Federal eRulemaking Portal: http://www.regulations.gov. In accordance
with 5 U.S.C. 553(b)(4), the summary of this rule may also be found at
https://www.regulations.gov. Follow the website instructions for
submitting comments.
Comments must be submitted in English, or an English translation
must be provided. Comments submitted in a manner other than via http://www.regulations.gov, including emails or letters sent to DHS or U.S.
Citizenship and Immigration Services (USCIS) officials, will not be
considered comments on the proposed rule and may not receive a response
from DHS. Please note that DHS and USCIS cannot accept any comments
that are hand-delivered or couriered. In addition, USCIS cannot accept
comments contained on any form of digital media storage devices, such
as CDs/DVDs and USB drives. USCIS is also not accepting mailed comments
at this time. If you cannot submit your comment by using http://www.regulations.gov, please contact Samantha Deshommes, Chief,
Regulatory Coordination Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
by telephone at (240) 721-3000 for alternate instructions.

FOR FURTHER INFORMATION CONTACT: 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 20746; telephone (240) 721-3000 (not a toll-free
call).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation
II. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of the Major Provisions of the Regulatory Action
1. Amend 8 CFR 208.3(c)(3), Form of Application
2. Amend 8 CFR 208.7(a), Employment Authorization
a. Biometrics
b. Extension of 180-Day Asylum EAD Clock to 365 Calendar Day
Waiting Period
c. Recommended Approvals
d. Processing Timeframes
e. Criminal Ineligibility Grounds
f. Effect of a Denial of Asylum Application
g. One-Year Filing Deadline
h. Illegal Entry
i. Use of Derogatory Information
j. Pause and Re-Start of Acceptance of Initial (c)(8) EAD
Applications
3. Amend 8 CFR 208.7(b), Renewal
4. Amend 8 CFR 208.7(c), Termination
5. Amend 8 CFR 274a.12(c)(8)
6. Amend 8 CFR 274a.13, Application for Employment Authorization
7. Technical and Conforming Updates to the Proposed Amendments
C. Impact of Effective Date of the Final Rule
1. Processing Timeframe
2. Waiting Period To Apply for and Receive an Initial (c)(8) EAD
3. Pause and Re-Start of (c)(8) EAD Application Acceptance
D. Summary of Benefits and Costs
E. Legal Authority
F. Severability
III. Background and Purpose
A. Introduction
B. Efforts To Reform the Asylum System
C. Continued Need for Reform
D. Background
1. Eligibility for Asylum
2. Affirmative vs. Defensive Filings
3. Employment Authorization for Asylum Applicants
a. 180-Day Asylum EAD Clock
b. 30-Day Processing Timeframe
c. Impact of Denial of the Asylum Application on Employment
Authorization
IV. Related Rulemakings
A. Discretionary EAD NPRM
B. Biometrics NPRM
V. Discussion of Proposed Rule
A. Pause and Re-Start of (c)(8) EAD Application Acceptance
B. 365 Calendar Day Waiting Period To Apply for (c)(8) EADs
C. Changes to Filing Requirements for Asylum Applications
D. Processing Timeframe for (c)(8) EADs
E. Biometrics Requirements
F. Eligibility Requirements
1. One-Year Filing Deadline
2. Criminal Bars
3. Illegal Entry
G. Discretionary Decisions
H. Recommended Approvals
I. Termination of Employment Authorization
1. Asylum Applications No Longer Pending Before DHS and DOJ
2. Maintaining an EAD While Seeking Administrative or Judicial
Review
3. Limited Exception for Unaccompanied Alien Children
J. Prioritizing the Adjudication of an Asylum Application Due to
Derogatory Information in the Form I-765 Adjudication
K. Corresponding DOJ Regulations
VI. Statutory and Regulatory Requirements
A. Executive Orders 12866 (Regulatory Planning and Review),
13563 (Improving Regulation and Regulatory Review), and 14192
(Unleashing Prosperity Through Deregulation)
1. Summary of Proposed Provisions and Benefits and Costs Impacts
2. Background and Purpose
3. Baseline and Population
4. Wages and Opportunity Costs of Time
5. Forms, Time Burdens, and Fees
6. Monetized Impacts (Costs, Benefits, and Transfers)
a. Variables and Descriptions
b. Module 1: EAD Application Acceptance Pause
c. Module 2: EAD Issuance Provisions
7. Distributional Effects of the Monetized Impacts
8. Impacts on Labor Market
9. Other Impacts Not Estimated
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. Executive Order 13132 (Federalism)
E. Executive Order 12988 (Civil Justice Reform)
F. Family Assessment
G. Executive Order 13175(Consultation and Coordination With
Indian Tribal Governments)
H. National Environmental Policy Act
I. Paperwork Reduction Act
1. Paperwork Reduction Act--Collection of Information
2. Form I-589
3. Form I-765
J. Executive Order 14192 (Unleashing Prosperity Through
Deregulation)

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

Table of Abbreviations

AO--asylum officer
APA--Administrative Procedure Act
BIA--Board of Immigration Appeals
BLS--U.S. Bureau of Labor Statistics
CBP--U.S. Customs and Border Protection
CFR--Code of Federal Regulations
DHS--U.S. Department of Homeland Security
DOJ--U.S. Department of Justice
EAD--employment authorization document
E.O.--Executive Order
EOIR--Executive Office for Immigration Review
Form I-589--Application for Asylum and for Withholding of Removal
Form I-765--Application for Employment Authorization
FY--Fiscal Year
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 Service
LIFO--last in, first out
NEPA--National Environmental Policy Act
NPRM--notice of proposed rulemaking
NTA--Notice to Appear
OMB--Office of Management and Budget
PRA--Paperwork Reduction Act
RFA--regulatory flexibility analysis
RIA--regulatory impact analysis
SBREFA--Small Business Regulatory Enforcement Fairness Act of 1996
(Congressional Review Act)
Secretary--Secretary of Homeland Security
TVPRA--William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008
UAC--Unaccompanied Alien Child
UMRA--Unfunded Mandates Reform Act of 1995
U.S.C.--United States Code
USCIS--U.S. Citizenship and Immigration Services

I. Public Participation

DHS invites all interested parties to participate in this
rulemaking by submitting written data, views, comments and arguments on
all aspects of this proposed rule. DHS also invites comments that
relate to the economic, environmental, or federalism effects that might
result from this proposed rule. Comments must be submitted in English,
or an English translation must be provided. Comments that will provide
the most assistance to USCIS in implementing these changes will
reference a specific portion of the proposed rule, explain the reason
for any recommended change, and include data, information, or authority
that support such recommended change. Comments submitted in a manner
other than via http://www.regulations.gov, including emails or letters
sent to DHS or USCIS officials, will not be considered comments on the
proposed rule and may not receive a response from DHS.
Instructions: If you submit a comment, you must include the agency
name (U.S. Citizenship and Immigration Services) and the DHS Docket No.
USCIS-2025-0370 for this rulemaking. Regardless of the method used for
submitting comments or material, all submissions will be posted,
without change, to the Federal eRulemaking Portal at http://www.regulations.gov, and will include any personal information you
provide. Therefore, submitting this information makes it public. You
may wish to consider limiting the amount of personal information that
you provide in any voluntary public comment submission you make to DHS.
DHS may withhold information provided in comments from public viewing
that it determines may impact the privacy of an individual or is
offensive. For additional information, please read the Privacy and
Security Notice available at http://www.regulations.gov.
Docket: For access to the docket and to read background documents
or comments received, go to http://www.regulations.gov, referencing DHS
Docket No. USCIS-2025-0370. You may also sign up for email alerts on
the online docket to be notified when comments are posted or a final
rule is published.

II. Executive Summary

A. Purpose of the Regulatory Action

The overarching goals of this proposed rulemaking are to enhance
the benefit integrity of requests for asylum and employment
authorization based on a pending asylum application, address national
security and public safety concerns, and mitigate undue strains on
DHS's operational resources by reducing the incentive for aliens to
file frivolous, fraudulent, or otherwise meritless asylum applications
as a means to obtain employment authorization, and thereby facilitating
faster and more efficient adjudications of meritorious asylum claims
and pending asylum employment authorization applications. USCIS'
receipts of initial applications for employment authorization based on
a pending asylum application have reached a historic high and USCIS'
adjudicative resources are strained.
To enhance benefit integrity, protect national security, and reduce
resource strains on USCIS, DHS proposes changes to its regulations
regarding EAD applications filed by asylum applicants \1\ under 8 CFR
274a.12(c)(8) (``(c)(8) category''). DHS proposes to codify in
regulations to pause USCIS' acceptance of initial Form I-765,
Application for Employment Authorization (``EAD application''), filings
in the (c)(8) category when USCIS' average processing time for
affirmative asylum applications exceeds 180 days. This proposed rule
also increases the waiting period to apply for (c)(8) EADs to 365
calendar days, extends the processing timeframe for USCIS to adjudicate
initial (c)(8) EAD applications, and introduces additional eligibility
requirements for (c)(8) EADs. Lastly, the proposed rule also impacts
affirmative asylum processing by allowing USCIS to prioritize
adjudication of asylum applications when derogatory information is
found during review of the EAD application. Allowing asylum officers to
prioritize an affirmative asylum application based on derogatory
information found during the employment authorization application
process will improve USCIS' national security and public safety posture
while also allowing the agency to more efficiently triage and process
potentially frivolous, fraudulent, or otherwise meritless cases.
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\1\ For purposes of this rule, the term ``asylum applicant'' is
generally used interchangeably with ``aliens who applied for
asylum,'' and ``aliens with a pending asylum application.''
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As discussed below, there is historical precedent for the
provisions proposed in this rule, and DHS believes that the
promulgation of this rule will reduce frivolous, fraudulent, or
otherwise meritless asylum applications that are filed for the sole
purpose of obtaining employment authorization. Ultimately, reducing
frivolous, fraudulent, or meritless asylum filings will enable USCIS to
dedicate an increased share of its finite resources to adjudicating
meritorious asylum applications, including backlog cases, and other
pending benefit requests. USCIS anticipates that the impact of this
proposed rule will align the adjudication of the applications for
(c)(8) EADs more closely with the statute by facilitating timely
adjudication of asylum applications and eventually limiting work
authorization during the pendency of an application for asylum to a
reduced number of cases where a decision on an asylum application
cannot be made within 365 days.

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B. Summary of the Major Provisions of the Regulatory Action

DHS proposes to codify in regulation the following major changes:
1. Amend 8 CFR 208.3(c)(3), Form of Application
DHS proposes to align its criteria for determining when an asylum
application is received and complete more closely with the general
rules governing immigration benefit requests in 8 CFR 103.2. The
existing 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 on paper, provided that it is signed with a valid signature,
executed, and filed in compliance with the regulations governing that
specific benefit request and with the correct fee. DHS proposes to
apply these existing regulations to asylum applications filed after the
effective date of this rule. Immigration benefit requests not meeting
these requirements are rejected and returned and do not retain a filing
date. DHS also proposes to remove the language in 8 CFR 208.3(c)(3)
providing that an application for asylum will be deemed ``complete'' if
USCIS fails to return the incomplete application to the alien within a
30-day period.
2. Amend 8 CFR 208.7(a), Employment Authorization
a. Biometrics
DHS proposes to require all applicants for a (c)(8) EAD, including
renewal requests, to submit biometrics. If an alien fails to appear for
biometrics submission, the alien's application for employment
authorization would be denied under 8 CFR 103.2(b)(13)(ii), similar to
how USCIS currently handles other benefit requests.
b. Extension of 180-Day Asylum EAD Clock to 365 Calendar Day Waiting
Period
Under the proposed rule, asylum applicants would be eligible to
apply for employment authorization 365 calendar days from the date
their asylum application is received. The 365 calendar-day waiting
period will begin on the date of the receipt of a complete asylum
application, as recorded pursuant to 8 CFR 103.2(a)(7).
c. Recommended Approvals
DHS proposes to remove the language referring to ``recommended
approvals.'' USCIS' Asylum Division no longer issues recommended
approvals as a preliminary decision for affirmative asylum
adjudications.
d. Processing Timeframes
DHS proposes to amend the regulatory requirement that USCIS
complete adjudication of initial (c)(8) EAD applications within 30
days. For initial (c)(8) EAD applications received on or after the
effective date of the final rule, DHS proposes to extend the processing
timeframe to 180 days for USCIS to adjudicate the EAD application. DHS
does not propose any changes to initial (c)(8) EAD applications
submitted prior to the effective date of this rule.
e. Ineligibility Grounds
DHS proposes to exclude from (c)(8) EAD eligibility any alien where
there is reason to believe that the alien may be barred from a grant of
asylum due to one of the criminal bars to asylum under sections
208(b)(2)(A)(ii)-(iii).
f. Effect of a Denial of Asylum Application
DHS proposes to exclude from initial (c)(8) EAD eligibility any
alien whose asylum application is denied by an asylum officer or an
Immigration Judge (IJ) within the 365 calendar-day waiting period, or
before the adjudication of the initial (c)(8) EAD application.
g. One-Year Filing Deadline
DHS proposes to exclude from (c)(8) EAD eligibility any alien whose
asylum application is filed on or after the effective date of the final
rule and more than 1 year after the alien's arrival in the United
States, unless an asylum officer or IJ determines that an exception to
the 1-year filing deadline exists, or unless the alien is under USCIS'
initial jurisdiction as an unaccompanied alien child (UAC).
h. Illegal Entry
DHS proposes to exclude from (c)(8) EAD eligibility any alien who
entered or attempted to enter the United States without inspection on
or after the effective date of the final rule, unless the alien,
without delay but no later than 48 hours after entry, expressed to an
immigration officer an intention to apply for asylum or expressed to an
immigration officer a fear of persecution or torture; or unless the
alien establishes good cause for the illegal entry or attempted entry;
or unless the alien meets the definition of, or at any time since their
most recent entry was determined to be, a UAC as defined in 6 U.S.C.
279(g)(2).
i. Use of Derogatory Information
To assist with improving adjudicative efficiency, DHS proposes to
prioritize asylum applications for adjudication if USCIS finds
derogatory information during the process of the adjudication of (c)(8)
EAD applications.
j. Pause and Re-Start of Acceptance of Initial (c)(8) EAD Applications
DHS proposes to pause the acceptance of initial (c)(8) EAD
applications when the average processing time for affirmative asylum
applications over a consecutive period of 90 day adjudications exceeds
180 days. After such a pause is implemented, acceptance of initial
(c)(8) EAD applications would resume when the average processing time
for affirmative asylum application adjudications over a consecutive
period of 90 days is less than or equal to 180 days. The USCIS
Director's determination to pause and restart (c)(8) EAD acceptances
will be based solely on the affirmative asylum application processing
times, and not subject to discretion. In evaluating the affirmative
asylum application processing times for USCIS asylum cases, the USCIS
Director will consider all pending asylum applications before USCIS
over the preceding 90-day period. The rule would require the USCIS
Director to review affirmative asylum application processing times on
the effective date of the final rule. DHS proposes to notify the public
of any such processing changes and provide the supporting quarterly
processing times through USCIS website announcements.
As described in section V.A of this preamble, USCIS' current
affirmative asylum processing times are significantly greater than 180
days.\2\ Processing times were trending downward, but recently
increased again. USCIS expects this rule to support another downward
trend in the long term, but USCIS also expects that, upon
implementation of this rule, new EAD applications for pending asylum
applicants would be paused for an extended period, possibly many years.
For example, without factoring in any of the other proposed changes in
this rule and how they may impact adjudication times, it may take
between 14 and 173 years to reach a 180-day processing time, depending
on the extent of the reduction in asylum application receipts

[[Page 8619]]

following this rule. It bears repeating that neither of those
projections take into account any of the other proposed changes in this
rule which, if finalized, would also shorten those processing times.
USCIS also recognizes that while the asylum adjudication processing
time calculation will be based solely on affirmative asylum
applications, the pause on acceptances of (c)(8) employment
authorization applications will impact both affirmative and defensive
asylum applications. While this is a significant change in access to
employment authorization based on a pending asylum application, DHS
believes it is necessary to achieve its goals of enhancing benefit
integrity, protecting national security, and reducing resource strains.
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\2\ USCIS OPQ DATA, ``I-589 Processing Time With and Without
Admin Closed by Fiscal Year (FY2022-2025) (May 27, 2025). DHS notes
these processing times are under LIFO processing, so these are still
the ``newer'' cases being adjudicated. Further, these adjudications
are not reducing the overall size of the asylum backlog.
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3. Amend 8 CFR 208.7(b), Renewal
DHS proposes to clarify and consolidate the requirements for
requesting a (c)(8) EAD renewal and specify that aliens applying for
renewal (c)(8) EADs must also submit biometrics.
4. Amend 8 CFR 208.7(c), Termination
Under the proposed rule, termination of a (c)(8) EAD would occur:
(1) immediately following the denial of an asylum application by an
asylum officer, unless the case is referred to an Immigration Judge;
(2) on the date that is 30 days after the date on which an Immigration
Judge denies an asylum application, unless the alien makes a timely
appeal to the Board of Immigration Appeals; or (3) immediately
following the denial or dismissal by the Board of Immigration Appeals
of an appeal of a denial of an asylum application.
5. Amend 8 CFR 274a.12(c)(8)
DHS proposes to remove the reference to recommended approvals
because USCIS no longer issues recommended approvals as a preliminary
decision for affirmative asylum adjudications.
6. Amend 8 CFR 274a.13, Application for Employment Authorization
Under the proposed rule, approval of (c)(8) EAD applications would
be at USCIS' discretion, in keeping with its discretionary authority
under section 208(d)(2) of the INA, 8 U.S.C. 1158(d)(2). DHS also
proposes to replace the detailed information about filing and
adjudicating applications for (c)(8) EADs with a reference to 8 CFR
208.7.
7. Technical and Conforming Updates to the Proposed Amendments
DHS proposes technical and conforming amendments to the affected
regulations to align with the major changes described previously,
including structural updates to 8 CFR 208.7(a) in order to incorporate
the new provisions. The proposed rule would also revise outdated
language, such as replacing references to ``the commissioner'' with
``USCIS.''

C. Impact of Effective Date of the Final Rule

Under this proposed 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 current
EAD, unless the card is terminated or revoked on the grounds specified
in regulations in effect when their EAD was issued.
In this proposed regulation, there are certain provisions that
apply only to initial (c)(8) EAD applications filed on or after the
effective date of the final rule. Provisions that apply only to initial
(c)(8) EAD applications are noted in the proposed regulatory text. The
remaining proposed provisions apply to both initial and renewal (c)(8)
EAD applications filed on or after the effective date of the final
rule. In general, and unless otherwise specified, aliens who file
renewal (c)(8) EAD applications on or after the effective date of the
final rule would be subject to the applicable provisions in this
proposed rule regardless of the date on which their initial application
for a (c)(8) EAD was filed. By applying many of these provisions to
renewals, DHS aims to further insulate the employment authorization and
asylum processes from fraud and abuse. Aliens requesting employment
authorization renewals who may have abandoned their asylum applications
or not appeared for their asylum interviews or biometrics appointments
will no longer be able to receive employment authorization renewals due
to additional scrutiny under the proposed rule. The application of
certain provisions to renewals will also allow DHS to vet aliens and
reduce the number of employment authorization renewals granted to
aliens who were convicted of crimes after receiving their initial EAD,
thereby enhancing public safety and strengthening national security.
Finally, applying these changes to renewals as well as initials results
in efficiencies for USCIS adjudicators, who would only have to apply
one set of eligibility requirements for (c)(8) EADs and not one set of
eligibility requirements for initial (c)(8)s and a different set of
requirements for renewal (c)(8)s.
The provisions that apply only to initial (c)(8) EAD applications
include the proposed changes to the processing timeframe, the waiting
period to apply for and receive a (c)(8) EAD, and the pause and re-
start of (c)(8) EAD application acceptance. With regard to the pause
and re-start, USCIS anticipates that the rule would result in an
initial and potentially lengthy pause. USCIS anticipates that this
pause would be instituted after USCIS reviewed average asylum
application times for the first 90-day period after the rule took
effect. USCIS acknowledges that, while the asylum adjudication
processing time calculation will be based solely on affirmative asylum
applications, the pause on acceptances of (c)(8) employment
authorization applications will impact both affirmative and defensive
asylum applicants. This rule will not have any impact on the ability to
apply to replace lost, stolen, or damaged (c)(8) EADs.
1. Processing Timeframe
DHS proposes to amend 8 CFR 208.7(a)(1) to extend the processing
requirement from 30 days to 180 days for all initial (c)(8) EAD
applications filed on or after the effective date of the final rule.
Any initial (c)(8) EAD applications that are pending as of the
effective date of the final rule would continue to be subject to the
current 30-day processing requirement. A fuller discussion of this
change and litigation relating to processing timeframes in Rosario v.
USCIS appears in section V.D of this preamble. There are currently no
processing timeframe requirements for renewal (c)(8) EAD applications,
and there would be no changes to timeframe requirements for renewal
(c)(8) EAD applications within this proposed rule.
2. Waiting Period To Apply for and Receive an Initial (c)(8) EAD
DHS proposes to amend the waiting period to apply for and receive
an initial (c)(8) EAD to 365 calendar days. This regulation would apply
to all initial applications for (c)(8) EADs filed on or after the
effective date of the final rule. Any initial (c)(8) EAD applications
that are pending as of the effective date of the final rule would still
be subject to the current 180-day Asylum EAD Clock. There are currently
no regulatory waiting period requirements for renewal (c)(8) EAD
applications,\3\ and there

[[Page 8620]]

would be no changes related to waiting periods for renewal (c)(8) EAD
applications within this proposed regulatory action.\4\
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\3\ USCIS advises aliens that they should file their renewal
Form I-765 within 6 months of the expiration date of the current
EAD. USCIS, ``I-765, Application for Employment Authorization,''
https://www.uscis.gov/i-765 (last updated Apr. 29, 2025).
\4\ A settlement in Garcia Perez v. DHS, 2:22-cv-806 (W.D. Wash.
2022) was approved in September 2024 after class members challenged
EOIR and USCIS policies and procedures regarding the 180-day Asylum
EAD Clock. Among other provisions, the Garcia Perez settlement
provides asylum applicants with an ability to obtain information
about their Asylum EAD Clock and challenge the reason for any stops
to the clock. The current mechanism to do this will be simplified by
conversion to a 365-calendar day calculation. To the extent that
there is conflict between the settlement agreement and the 365-
calendar day calculation, this rule change would supersede the
Garcia Perez settlement agreement, which contains a clause
acknowledging the settlement agreement does not preclude future
regulatory or statutory changes. See Garcia Perez Settlement
Agreement, Section II.C.7--Impact of Statutory, Regulatory, or
Precedential Changes, and/or Operational Needs.
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3. Pause and Re-Start of (c)(8) EAD Application Acceptance
DHS proposes to pause and re-start the acceptance of initial (c)(8)
EAD applications based on the average processing time of asylum
application adjudications over a 90-day period. For purposes of this
NPRM, an affirmative asylum application is considered processed when a
grant, referral, or denial is issued or the application is
administratively closed. Cases described as administrative closures are
those that do not receive a final decision on the merits but are closed
for reasons such as lack of jurisdiction or abandonment of the asylum
application, USCIS uses different terms to address the lifespan of a
case, including both ``process time'' and ``cycle time''. Generally,
``processing time'' is the time from receipt to completion for each
individual form and can be averaged over a specific period of time in
the past, but does not take into account currently pending applications
and is not used for projections. ``Cycle time'' is defined as how many
months' worth of receipts represents the current pending case volume.
This is an internal metric that can be used for projections because it
takes into account current pending volume, anticipated receipts, and
expected completions. As an internal management metric, cycle times are
generally comparable to the agency's publicly posted median processing
times. Cycle times are what the operational divisions of USCIS use to
gauge how much progress the agency is, or is not, making on reducing
our pending affirmative asylum caseload and overall case processing
times. DHS would pause the acceptance of initial (c)(8) EAD
applications when the average processing time for all affirmative
asylum applications over a consecutive period of 90 days adjudication
exceeds 180 days. Acceptance of initial (c)(8) EAD applications would
resume when the average processing time for affirmative asylum
adjudication over a consecutive period of 90 days is less than or equal
to 180 days. The proposed provisions to pause and re-start EAD
application acceptance only impact initial (c)(8) EAD applications.
Thus, even in a period in which USCIS has paused the acceptance of
initial (c)(8) EAD applications due to asylum application processing
times, USCIS will continue to receive and adjudicate renewal (c)(8) EAD
applications, as well as EAD applications in other eligibility
categories.
The rule would require the USCIS Director to review affirmative
asylum application processing times for the purpose of determining
whether USCIS' (c)(8) EAD application acceptances would be paused or
restarted. This requirement would begin on the effective date of the
final rule and the Director would conduct the first required review of
asylum application processing times after the first 90-day period
thereafter. Based on recent processing times, USCIS anticipates that
the Director will institute an initial pause on asylum EAD
adjudications following that review. The USCIS Director's determination
is not discretionary, and the determination to pause or restart
acceptance of initial (c)(8) EAD applications is directly tethered to
the processing times of all affirmative asylum applications over the
previous 90-day period. DHS proposes to notify the public of any such
processing changes and provide the supporting processing times through
USCIS website announcements.

D. Summary of Benefits and Costs

DHS expects that this proposed rule will generate substantial
benefits. As discussed later in this preamble, the asylum system is
overwhelmed, federal adjudications resources are strained, and the
affirmative asylum application backlog serves as a magnet pulling
aliens into the U.S. illegally. The surge in both asylum filings and
associated EADs over the past few years has created an untenable
situation. This proposed rule would benefit USCIS by allowing it to
operate under long-term, sustainable case processing times for initial
EAD applications for asylum applicants, to allow sufficient time to
address national security, public safety, or fraud concerns, and to
maintain technological advances in document production and identity
verification. Just as the 1994 INS rulemaking referenced below, DHS
expects that this action would reduce frivolous and fraudulent asylum
claims and perverse economic incentives to obtain an EAD under
meritless asylum claims. 59 FR 14779 (Mar. 30, 1994); 59 FR 62284 (Dec.
5, 1994). Frivolous, fraudulent, and meritless asylum applications and
related filings for employment authorization can serve as a magnet for
illegal immigration and generate costs to localities, states, the
national economy, and strain resources. These costs could include
public assistance and additional local or state resources used to
assist aliens, and this rule would potentially mitigate some of these
costs. DHS expects that these changes would reduce confusion regarding
EAD requirements for aliens with pending asylum applications and the
public, help ensure the regulatory text reflects current DHS policy and
more faithfully implements the intent of the statute while
simultaneously improving program integrity. DHS cannot currently
quantify all of the potential benefits of this proposed rule.
In addition, if employers are able to hire American workers to fill
the jobs the asylum applicants would otherwise hold, the change in
earnings to such aliens would constitute beneficial wage and benefit
transfers to American workers and would potentially pose no
productivity loss or costs to employers. While it is possible that
aliens without work authorization could require assistance from their
social and support networks, which could include public entities, there
could be a counterbalance; as this rule potentially will reduce
immigration, there could be less of an economic strain on states, local
government, and non-governmental organizations, in terms of any public
assistance and resources that are currently provided to asylum
applicants. Furthermore, DHS anticipates this proposed rule would
decrease illegal migration and fraudulent claims for asylum
applications and EADs.
Many of the impacts described above will be indirect,
unquantifiable benefits resulting from this proposed rule. DHS cannot
estimate these potential indirect impacts (whether costs, benefits,
transfers) or second order effects and beyond, as they are beyond the
scope of this analysis. This rulemaking seeks to reduce frivolous,
fraudulent, and meritless asylum applications and their associated
applications for (c)(8) EADs while improving the administrative process
for issuance of employment authorization documents for aliens with
meritorious asylum applications at USCIS.

[[Page 8621]]

Requiring aliens to submit biometrics collections for both initial
and renewal requests for employment authorization would enable DHS to
vet an alien's biometrics against government databases to determine if
he or she matched any criminal activity on file, to verify the alien's
identity, and to facilitate card production. In addition, biometrics
collection enables DHS to confirm that individuals are not utilizing
multiple identities or that multiple individuals are not utilizing one
identity. Lastly, from biometrics collections DHS would increase
program integrity by ensuring that only eligible aliens who continued
to pursue asylum were applying for and obtaining work authorization,
because those who have abandoned their asylum applications or who do
not have a genuine need for asylum may be less likely to appear for
biometrics collection. This would also generally provide a benefit for
the public because it would increase transparency pertinent to
application and filing requirements. As discussed in the preamble, the
asylum program has been subject to identity fraud concerns
historically.
The impacts of this proposed rule include both potential
distributional effects (which are transfers) and costs. The potential
distributional impacts fall on the asylum applicants who may be delayed
in entering the U.S. labor force or who may not obtain an EAD due to
being ineligible (e.g., aggravated felon, serious non-political crime,
etc.) or due to a processing pause. The potential distributional
impacts (transfers) would be in the form of lost opportunity to earn
compensation (wages and benefits). A portion of this lost compensation
might be transferred from asylum applicants to others that are
currently employed in the U.S. labor force, possibly in the form of
additional hours worked or overtime pay. A portion of the impact of
this rule may also be borne by companies that would have hired the
asylum applicants had they been eligible for an EAD or in the labor
market earlier. However, if the affected employer were unable to find
available workers, these companies could incur a cost to productivity
and potential profit.
Companies may also incur opportunity costs by having to choose the
next best alternative to immediately filling the job the asylum
applicant would have filled. USCIS does not know what this next best
alternative may be for those companies. As a result, USCIS does not
know the portion of overall impacts of this rule that are transfers or
costs. If companies can find replacement labor for the position the
asylum applicant would have filled, this rule would have primarily
distributional effects in the form of transfers from asylum applicants
to others already in the labor market (or workers induced to return to
the labor market). USCIS acknowledges that there may be additional
opportunity costs to employers such as additional search costs.
However, if companies cannot find a reasonable substitute for the labor
an asylum applicant would have provided, the effect of this rule would
primarily be a cost to these companies through lost productivity and
profits.
USCIS uses the changes to earnings to asylum applicants as a
measure of the overall impact of the rule--either as distributional
impacts (transfers) or as a proxy for businesses' cost for lost
productivity. It does not include additional costs to businesses for
lost profits and opportunity costs or the distributional impacts for
those in an applicant's support network. The lost compensation to these
asylum applicants could range from $34.6 billion to $126.6 billion
annually (undiscounted) depending on the wages the asylum applicant
would have earned and other factors. The 5-year total discounted lost
compensation to asylum applicants at 3 percent could range from $155.4
billion to $568.6 billion and at 7 percent could range from $135.5
billion to $495.8 billion (FY 2025 through FY 2029).
The quantified estimates may be overstated, as they assume that
without this rule (i.e. under the baseline) the EAD validity period
would be longer than is currently permitted.\5\ Since USCIS has reduced
the maximum EAD validity period for aliens with pending asylum
applications to 18 months, recipients must renew more often, which
could result in fewer pending asylum applicants authorized to work over
the 5-year period of analysis. This reduction would result from
attrition in renewal applications and more frequent vetting.
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\5\ Effective December 5, 2025, USCIS reduced the maximum EAD
validity period for aliens with pending asylum applications to 18
months. See USCIS, Policy Alert, ``Updating Certain Employment
Authorization Document Validity Periods'' (Dec. 4, 2025), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20251204-EmploymentAuthorizationValidity.pdf.
---------------------------------------------------------------------------

There could be tax impacts pertinent to earnings changes. Asylum
applicants who could be delayed or precluded from obtaining an EAD may
generate forgone federal and state taxes. However, as was noted above,
the strain on resources that could be mitigated due to the effects of
this rule could counterbalance some or all of the tax losses, if there
are any. Additionally, if the earnings are transferred to American
workers, there may be no loss of taxes.
This rule could possibly result in reduced opportunity costs to the
Federal Government. Since the Rosario court order, 365 F. Supp. 3d 1156
(W.D. Wash. 2018), compelled USCIS to comply with the 30-day processing
timeframe provision in FY 2018, USCIS has redistributed its
adjudication resources to work up to compliance. By extending the 30-
day processing timeframe to 180 days, it is possible that resources
could be reallocated, which could have the effect of reducing delays in
processing status-granting benefit requests, and avoiding costs
associated with hiring additional employees. However, there are many
factors that could influence such processing. Additionally, if asylum
filings decline, as this rule generates a disincentive to meritless
claims with the goal of obtaining an EAD, then the public and the
Federal Government could experience operational and cost efficiencies
as it is based on adjudicating fewer asylum claims. DHS does not rule
out that there could be resources allocated to other operational areas.
Table 1 provides a detailed summary of the regulatory changes and
the expected impacts of proposed rule's provisions. USCIS estimates the
primary impact of the rule would result from a pause in accepting all
new initial (c)(8) EAD applications until USCIS' affirmative asylum
applications processing time reach a 180-day average (Module 1).
Additionally, USCIS provides impacts for provisions that would affect
applicants (for initial and renewal EADs) when the pause is lifted
(Module 2). However, USCIS does not include Module 2 in the total rule
impact, because the Module 1 impacts (pause EADs) already accounted for
impacts to all new EAD applicants. To include Module 2 would be double
counting the impacts for the same population. Where a monetized figure
is presented, it is based on a 7 percent annualized average, and the
annual population is the midpoint of a high-low range.
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In addition to the information presented in Table 1, details and an
A-4 accounting statement are provided in Section VI (Statutory and
Regulatory Requirements) of the proposed rule.
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\6\ See Office of the Inspector General, OIG-16-130
``Potentially Ineligible Individuals Have Been Granted U.S.
Citizenship Because of Incomplete Fingerprint Records'' (Sept. 8,
2016), https://www.oig.dhs.gov/reports/2016-09/potentially-ineligible-individuals-have-been-granted-uscitizenship-because,
finding ``During immigration enforcement encounters with aliens, CBP
and ICE take fingerprint records. These components and their
predecessor, INS, used to collect aliens' fingerprint on two paper
cards. One card was supposed to be sent to the FBI to be stored in
its repository. The other fingerprint card was to be placed in the
alien's file with all other immigration related documents.''
Ultimately finding that ``As long as the older fingerprint records
have not been digitized and included in repositories, USCIS risks
making naturalization decision without complete information and, as
a result, naturalizing additional individuals who may be ineligible
for citizenship or who may be trying to obtain U.S. citizenship
fraudulently.'' See also Office of the Inspector General, DHS,
``Individuals with Multiple Identities in Historical Fingerprint
Enrollment Records Who Have Received Immigration Benefits'' DHS-OIG
17-111 (Sept. 25, 2017), https://www.oig/dhs.gov/sites/default/files/assets/2017/OIG-17-111-Sep17.pdf, ``Individuals with Multiple
Identities in Historical Fingerprint Enrollment Records Who Have
Received Immigration Benefits'' finding ``from this data set, we
determined that, as of April 24, 2017, 9,389 alients USCIS
identified as having multiple identities had received an immigration
benefit'' and that ``10 percent of cases, but not discussed in this
report, include applications for asylum and travel documents.''
\7\ DHS caveats that the quantified estimates are currently
overstated due to the change in the maximum EAD validity period for
aliens with pending asylum applications to 18 months. USCIS will
consider the recent change and incorporate updates where appropriate
in the final rule to reflect this change.
---------------------------------------------------------------------------

E. Legal Authority

The Secretary's authority for the proposed regulatory amendments is
found in various sections of the INA, 8 U.S.C. 1101 et seq., and the
Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135
(codified in part at 6 U.S.C. 101 et seq.). General authority for
issuing this proposed rule is found in section 103(a) of the INA, 8
U.S.C. 1103(a), which authorizes the Secretary to administer and
enforce the immigration and nationality laws and establish such
regulations as the Secretary deems necessary for carrying out such
authority, as well as section 102 of the HSA, 6 U.S.C. 112, which vests
all of the functions of DHS in the Secretary and authorizes the
Secretary to issue regulations.\8\
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\8\ Although several provisions of the INA discussed in this
proposed rule refer exclusively to the ``Attorney General,'' such
provisions now refer to the Secretary by operation of the HSA. See 6
U.S.C. 202(3), 251, 271(b), 542 note, and 557; 8 U.S.C. 1103(a)(1)
and (g) and 1551 note; Nielsen v. Preap, 586 U.S. 392, 397 n.2
(2019).
---------------------------------------------------------------------------

Additional authority for this rule is found in:
Section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B),
which recognizes the Secretary's discretionary authority to extend
employment authorization to aliens in the United States; \9\
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\9\ Courts have acknowledged that Congress delegated authority
to DHS to grant or extend employment authorization to certain
classes of aliens. See, e.g., Washington Alliance of Technology
Workers v. DHS, 50 F.4th 164, 191-92 (D.C. Cir. 2022) (``What
matters is that section 1324a(h)(3) expressly acknowledges that
employment authorization need not be specifically conferred by
statute; it can also be granted by regulation.''). DHS is exercising
this discretionary authority consistent with all applicable
authorities, including the referenced authorities in the HSA, and
sections 103, 208, and 274A(h)(3) of the INA, 8 U.S.C. 1103, 1158,
and 1324a(h)(3), as well as the Administrative Procedure Act (APA)
at 5 U.S.C. 553. See Loper Bright Enterprises v. Raimondo, 144 S.
Ct. 2244, 2263 (2024) (``In a case involving an agency, of course,
the statute's meaning may well be that the agency is authorized to
exercise a degree of discretion. Congress has often enacted such
statutes. For example, some statutes expressly delegate to an agency
the authority to give meaning to a particular statutory term. Others
empower an agency to prescribe rules to fill up the details of a
statutory scheme, or to regulate subject to the limits imposed by a
term or phrase that leaves agencies with flexibility, such as
`appropriate' or `reasonable.' '') (internal citations omitted).
---------------------------------------------------------------------------

Sections 208(d)(1) and (d)(5)(B) of the INA, 8 U.S.C.
1158(d)(1) and (d)(5)(B), which authorize the Secretary to establish
regulations concerning the procedures and conditions on asylum
applications;
Section 208(d)(2) of the INA, 8 U.S.C. 1158(d)(2), which
provides the Secretary discretion to grant employment authorization to
applicants for asylum if 180 days have passed since filing an
application for asylum;
Section 101(b)(1)(F) of the HSA, 6 U.S.C. 111(b)(1)(F),
which establishes as a primary mission of DHS the duty to ``ensure that
the overall economic security of the United States is not diminished by
efforts, activities, and programs aimed at securing the homeland;'' and
Section 271(a)(3) of the HSA, 6 U.S.C. 271(a)(3), which
confers authority on the Director of USCIS to establish ``policies for
performing [immigration adjudication] functions.''

[[Page 8628]]

F. Severability

The Department intends for the provisions of this proposed rule, if
finalized, to be severable from each other and to be given effect to
the maximum extent possible, such that if a court were to hold that any
provision is invalid or unenforceable as to a particular alien or
circumstance, the other provisions will remain in effect as to any
other alien or circumstance. For example, if a court of competent
jurisdiction were to hold that the proposed amendments to the
regulations under 8 CFR 208.7(a)(2) alone should be enjoined or should
be vacated for some reason, it is the intent of DHS that such court
would narrowly construe its decision and leave the remainder of the
rule in place with respect to all other covered aliens and
circumstances. While the various provisions of this proposed rule,
taken together, would provide maximum benefit with respect to improving
the integrity of both the asylum program and employment authorization
benefits process, strengthening the Department's national security and
public safety posture, and decreasing the strain on operational
resources, none of the provisions are fully interdependent and unable
to operate separately.
DHS recognizes that the proposed provisions at 8 CFR
208.7(a)(1)(i), 8 CFR 208.7(a)(1)(iv), and 8 CFR 208.7(a)(1)(v) are
related to each other, but they may still exist independently. The
proposed amendments at 8 CFR 208.7(a)(1)(iv) would expand the list of
criminal ineligibilities for employment authorization, including the
incorporation of criminal bars to asylum, specifically where there is
reason to believe that the applicant may be barred from a grant of
asylum due to one of the criminal bars to asylum under sections
208(b)(2)(A)(ii)-(iii) and the proposed amendments at 8 CFR
208.7(a)(1)(v) would allow DHS to prioritize for adjudication asylum
applications for which derogatory information is discovered during the
EAD adjudications. These proposed provisions would be strengthened by
the proposed provision at 8 CFR 208.7(a)(1)(i), which requires
biometrics for all aliens applying for EADs based on pending asylum
applications. This new categorical biometrics provision would allow DHS
to conduct more in-depth screening and vetting, thus providing a more
complete, comprehensive, and accurate view of the alien's criminal
history. However, even if USCIS could not implement the categorical
biometrics provision, the Department could still apply the criminal
ineligibility grounds and derogatory information provisions to the EAD
adjudication by reviewing other available evidence in the record or
available in government systems.

III. Background and Purpose

A. Introduction

On January 20, 2025, President Donald J. Trump issued a
Presidential Proclamation declaring that a national emergency exists at
the southern border of the United States \10\ and a Presidential
Proclamation stating that the circumstances of the emergency qualify as
an invasion under Article IV, Section 4, of the Constitution of the
United States.\11\ Stating that the number of aliens encountered along
the southern border of the United States over the course of the prior
administration had overwhelmed the U.S. immigration system and rendered
many of the INA's provisions to control the entry and exit of people
and goods across the borders of the United States ineffective, the
President invoked emergency tools to suspend the physical entry of
aliens involved in an invasion into the United States across the
southern border and provide additional authorities and resources to
support the Federal Government's response.\12\
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\10\ Proclamation 10886 of Jan. 20, 2025, ``Declaring a National
Emergency at the Border'', 90 FR 8327, 8328 (Jan. 29, 2025).
\11\ Proclamation 10888 of Jan. 20, 2025, ``Guaranteeing the
States Protection Against Invasion,'' 90 FR 8333, 8335 (Jan. 29,
2025).
\12\ Id.
---------------------------------------------------------------------------

On the same day, the President issued Executive Order (E.O.) 14159,
Protecting the American People Against Invasion, to ensure ``that the
Federal Government protects the American people by faithfully executing
the immigration laws of the United States.'' \13\ The E.O. also
directed the Secretary to ensure ``that employment authorization is
provided in a manner consistent with section 274A of the INA (8 U.S.C.
1324a), and that employment authorization is not provided to any
unauthorized alien in the United States.'' \14\
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\13\ E.O. 14159 of Jan. 20, 2025, ``Protecting the American
People Against Invasion,'' sec. 1, 90 FR 8443 (Jan. 29, 2025).
\14\ Id. at sec. 16(c), 90 FR 8446.
---------------------------------------------------------------------------

Through this proposed rule, DHS is addressing, in part, the
President's national emergency and invasion at the southern border
declarations by: (1) reducing incentives for aliens to file frivolous,
fraudulent, or otherwise meritless asylum applications intended
primarily to obtain employment authorization and to remain in the
United States for years due to the current backlog of asylum cases; (2)
disincentivizing illegal entry into the United States by providing
that, on or after the effective date of the final rule, 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; (3) reducing
opportunities for fraud; and (4) protecting USCIS' ability to have
sufficient time and resources to receive, meaningfully screen and vet,
and process initial (c)(8) EAD applications, while also protecting the
security-related processes undertaken for each employment authorization
application. This rule also aims to address the increased public safety
and national security concerns exacerbated by large numbers of aliens
illegally crossing the border and overwhelming the U.S. immigration
system. DHS is also proposing reforms that will ease many of the
burdens USCIS faces in accepting and adjudicating applications for
asylum and related employment authorization.
As explained more fully later in this preamble, these reforms will
help mitigate the crisis that our immigration and asylum systems are
facing as a consequence of the mass migration of aliens across the
southern border, and improve the current asylum backlog by discouraging
new frivolous, fraudulent, or otherwise meritless asylum applications
and freeing DHS resources to focus on applications in the current
backlog, helping to clear the way for meritorious asylum applications
to be received, processed, and adjudicated more quickly.
The existing asylum backlog has engendered a flood of litigation by
aliens with pending asylum applications alleging unreasonable delay of
their applications that has significantly drained the resources of
USCIS and the U.S. Department of Justice (DOJ) to resolve. In fact,
petitions for writs of mandamus \15\ related to affirmative asylum
cases have been on the rise in recent years, from 1,545 in FY 2022 to
4,093 in FY 2023 to 5,187 cases in FY 2024.\16\ Affirmative asylum
cases with mandamus actions further stymie progress on affirmative
asylum backlog reduction because USCIS must prioritize responses to and
adjudication of certain mandamus affirmative asylum

[[Page 8629]]

cases. This creates a cyclical issue because mandamus actions force
USCIS to reallocate resources to meet the court deadlines by pulling
officers off either recent or backlog adjudications, which leads to
increased processing times for other pending asylum applications.\17\
Adopting the provisions described in this proposed rule would give
aliens with meritorious asylum claims the predictability they deserve
but are currently denied because of the backlog of asylum claims
clogging the system. The extensive resources required to process
pending asylum applications generally extends the time to process
meritorious asylum claims.
---------------------------------------------------------------------------

\15\ A Writ of Mandamus is a district court filing used to
compel an agency to perform a duty owed to the plaintiff. USCIS may
expedite cases for aliens with long-standing asylum claims who use
this style of litigation to seek action.
\16\ USCIS internal data, Office of the Chief Counsel, Form I-
589 Mandamus Statistics, May 22, 2025.
\17\ Office of Inspector General, DHS, ``USCIS Faces Challenges
Meeting Statutory Timelines and Reducing Its Backlog of Affirmative
Asylum Claims'' (July 3, 2024), https://www.oig.dhs.gov/sites/default/files/assets/2024-07/OIG-24-36-Jul24.pdf. See also
Citizenship and Immigration Services Ombudsman, DHS, ``Annual Report
2022'' (June 30, 2022), https://www.dhs.gov/sites/default/files/2022-07/2022%20CIS%20Ombudsman%20Report_verified_medium_0.pdf.
---------------------------------------------------------------------------

Additionally, illicit organizations, including designated Foreign
Terrorist Organizations (FTOs),\18\ benefit financially by smuggling
aliens into the United States, and, upon arrival in this country, many
aliens then apply for asylum or other immigration benefits. A 2023
congressional report stated that aliens routinely paid smuggling
organizations more than $10,000 to $15,000 to facilitate the journey
across the southwest border, with drug cartels playing an increasingly
influential role in human smuggling.\19\ It is estimated that cartel
revenue from human smuggling is in the billions of dollars, with
cartels operating in the Del Rio Sector alone making around $1.5
billion a year.\20\ Recently designated FTOs, including Cartel Del
Golfo (Gulf Cartel), Cartel Del Noreste, and Mara Salvatrucha (MS-13)
continue to engage in dangerous and often fatal human smuggling
operations, bringing vulnerable men, women, and children to the United
States illegally.\21\ By nature, these organizations engage in illegal
and often extremely violent activities; therefore, this strategic
exploitation of the immigration system by FTOs constitutes a massive
national security and public safety threat.
---------------------------------------------------------------------------

\18\ Bureau of Counterterrorism, DOS, ``Designated Foreign
Terrorist Organizations,'' https://www.state.gov/foreign-terrorist-organizations/ (last visited May 23, 2025); E.O. 14157 of Jan. 20,
2025, ``Designating Cartels and Other Organizations as Foreign
Terrorist Organizations and Specially Designated Global
Terrorists,'' 90 FR 8439 (Jan. 29, 2025).
\19\ U.S. Congress, House of Representatives, Committee on
Homeland Security Majority Report, Phase 2 Interim Report, 118th
Cong., 1st sess., Sept. 7, 2023, https://homeland.house.gov/wp-content/uploads/2023/09/09.07-Phase-2-Final.pdf.
\20\ U.S. Congress, House of Representatives, Committee on
Homeland Security Majority Report, Phase 2 Interim Report, 118th
Cong., 1st sess., Sept. 7, 2023, https://homeland.house.gov/wp-content/uploads/2023/09/09.07-Phase-2-Final.pdf.
\21\ ICE, ``Cartel Del Noreste Members Sent to Prison for Roles
in Cartel-Linked Human Smuggling Scheme'' (Nov. 4, 2024), https://www.ice.gov/news/releases/cartel-del-noreste-members-sent-prison-roles-cartel-linked-human-smuggling-scheme; DOJ, ``Fatal human
smuggling case and two alleged MS-13 members among those charged in
relation to immigration and border security'' (Apr. 4, 2025),
https://www.justice.gov/usao-sdtx/pr/fatal-human-smuggling-case-and-two-alleged-ms-13-members-among-those-charged-relation; DOS, ``In
Dual Actions, Treasury Sanctions Clan Del Golfo Leadership in
Colombia and Businesses'' (Sept. 25, 2024), https://pa.usembassy.gov/in-dual-actions-treasury-sanctions-clan-del-golfo-leadership-in-colombia-and-businesses-owned-by-sinaloa-cartel-fentanyl-traffickers-in-mexico/; DOJ, ``Law Enforcement Cooperation
Between United States and Mexico Results in Mexican Takedown of
Cartel-Linked Alien Smugglers,'' (Feb. 20, 2025), https://www.justice.gov/opa/pr/law-enforcement-cooperation-between-united-states-and-mexico-results-mexican-takedown-cartel.
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DHS expressly recognizes that there are many populations with
reliance interests on the current regulatory framework for (c)(8) EAD
applications, including aliens applying for asylum, employers, and
state and local communities. These interests include the aliens with
meritorious asylum claims desiring to access employment authorization
faster and with fewer requirements so that they might become
financially independent sooner, the need for employers to more readily
access a pool of employment-authorized aliens, and a state or
community's economic need for newly arrived aliens to sustain
themselves and contribute to the economy. DHS acknowledges that this
rule may negatively impact potentially meritorious asylum applicants
who may decide not to file for asylum because they cannot afford to
wait the extended period before applying for employment authorization.
These aliens, who may otherwise have strong asylum claims, may have
family responsibilities, medical, or other financial burdens, that make
it extremely difficult for them to wait 365 calendar days, or
potentially many years due to the pause and restart provisions of this
rule, to file for employment authorization while their asylum
application is pending. DHS also recognizes that extending the
processing time for employment authorization may also factor into a
potentially meritorious applicant's decision-making process before
applying for asylum. Due to this rule and the increased waiting periods
before an alien may receive employment authorization, there may be
aliens with potentially meritorious asylum claims who instead return to
a country where they may fear harm. DHS has seriously considered the
harm to this potential population, and, while these interests are
relevant and justified, DHS has determined that they are outweighed by
the needs of the Federal Government to protect U.S. national security,
public safety, and the overall integrity of the asylum program, as well
as sustain an operationally efficient immigration system.\22\ The
asylum program and the immigration system are heavily burdened and
overwhelmed, and this has led to a massive pending affirmative asylum
caseload.\23\ This pending affirmative asylum caseload weakens the
integrity of the system, allowing thousands of non-meritorious cases to
languish and obstructing the agency from identifying potential public
safety and national security concerns until years later when the cases
are finally adjudicated. The security of the United States and the
integrity of our immigration processes outweigh the potential harm to a
subset of the asylum applicant population. Additionally, there is no
justified reliance on the current regulations for the purpose of
exploiting the immigration system through filing fraudulent, frivolous,
or otherwise meritless asylum cases primarily to access employment
authorization. Removing this potential abuse as a pull factor for
illegal immigration should decrease the number of illegal border
crossers and outweighs reliance on the current regulations. Finally,
many asylum seekers may have existing support networks of family,
friends, and community members, including other asylees and refugees,
who are able to alleviate the financial burdens caused by the longer
wait to receive employment authorization. These communities provide a
significant and positive national fiscal impact and may support those
who are not yet employment authorized.\24\ Therefore, reliance
interests are limited to the employment of aliens who are already
present in the United States at the time

[[Page 8630]]

the final rule becomes effective and who may apply for asylum, or those
who are lawfully admitted or paroled into the United States and
subsequently apply for asylum, and the employers, states, and local
communities who are impacted by these populations.
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\22\ See Dep't of Homeland Sec. v. Regents of the Univ. of
California, 140 S. Ct. 1891, 1914 (2020). (``And, even if DHS
ultimately concludes that the reliance interests rank as serious,
they are but one factor to consider. DHS may determine, in the
particular context before it, that other interests and policy
concerns outweigh any reliance interests.'').
\23\ USCIS, ``Number of Service-wide Forms By Quarter, Form
Status, and Processing Time'' (Apr. 30, 2025), https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2025_q1.xlsx.
\24\ U.S. Department of Health and Human Services, ``The Fiscal
Impact of Refugees and Asylees Over 15 Years: Over $123 Billion in
Net Benefit from 2005-2019'' (Feb. 15. 2024), available at https://aspe.hhs.gov/sites/default/files/documents/ea6442054785081eb121fa5137cf837d/aspe-brief-refugee-fiscal-impact-study.pdf.
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Further, many of the goals of this rule actually support the
interests of those same asylum applicants, employers, and state and
local communities. For example, the changes proposed in the rule would
help deter frivolous, fraudulent, and otherwise meritless asylum
filings, which would permit DHS to more efficiently adjudicate the
applications for aliens with meritorious asylum claims. Employers who
rely on employment-authorized aliens for a labor pool are unlikely to
prefer aliens with criminal arrests and convictions, aliens who pose
national security threats, or aliens who committed fraud during the
immigration process. Similarly, while state and local communities have
an economic interest in newly arrived aliens sustaining themselves and
contributing to the economy, they also have an interest in protecting
their communities from national security threats, aggravated felons,
and other criminal and fraud risks.
It is the policy of the Executive Branch to protect the national
sovereignty of the United States by facilitating the admission of
aliens whose presence serves the national interest and preventing the
admission of those who do not, as well as to protect national security
and public safety. 90 FR 8327 (Jan. 29, 2025); 90 FR 8333 (Jan. 29,
2025). Aliens admitted into the United States may choose to file for a
variety of immigration benefits or protections, one of which is asylum.
This rulemaking is part of a series of reforms DHS is undertaking to
improve the integrity of the asylum system, including streamlining
efforts, so that those with meritorious asylum claims are adjudicated
quickly and aliens who are ineligible are promptly denied.

B. 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.\25\ Signed into law in March 1980, the legislation was
intended to ``provide a permanent and systematic procedure for
admission to this country of refugees of special humanitarian concern
to the United States'' and to provide provisions for effective
resettlement of such refugees.\26\ The Refugee Act also, for the first
time, created a statutory basis for asylum, in order to help ensure
that U.S. statutory law conformed to Article 33 of the 1951 U.N
Convention relating to the Status of Refugees.\27\ The law directed the
Attorney General to establish a procedure for the granting of asylum
status to aliens physically present in the United States, or at a land
border or port of entry, if the Attorney General determines the alien
meets the definition of a refugee.\28\
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\25\ The Refugee Act of 1980 codified the definition of a
refugee from the 1967 United Nations Protocol Relating to the Status
of Refugees. United Nations, ``Protocol Relating to the Status of
Refugees'' (Jan. 31, 1967), 19 U.S.T. 6223, TIAS No. 6577, 606
U.N.T.S. 267.
\26\ Refugee Act of 1980, Public Law 96-212, sec. 101(b), 94
Stat. 102, 102 (Mar. 17, 1980).
\27\ H.R. Rep. No. 96-608 (1979).
\28\ Refugee Act of 1980, sec. 201(b), 94 Stat. at 105 (adding
section 208 of the INA, 8 U.S.C. 1158); see also id. at sec. 201(a),
94 Stat. at 102 (codifying the following definition of ``refugee'':
``The term `refugee' means (A) 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. . . .'').
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In June 1980, legacy Immigration and Naturalization Service (INS)
issued an interim regulation implementing provisions of the Refugee
Act.\29\ Among other things, the regulation permitted district
directors, in their discretion, to grant requests for employment
authorization made by aliens who had filed non-frivolous asylum
applications.\30\ DHS notes the significance of even that interim
regulation requiring that asylum applications be non-frivolous. The
regulation did not, however, build in a waiting period, meaning aliens
were eligible to request and receive employment authorization upon
filing their asylum applications.\31\ Further, the regulation did not
specify any other restrictions related to employment authorization,
such as the duration of employment authorization or grounds of
ineligibility.\32\
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\29\ Aliens and Nationality; Refugee and Asylum Procedures, 45
FR 37392 (June 2, 1980). This interim rule was not finalized until
1983. Aliens and Nationality; Asylum Procedures, 48 FR 5885 (Feb. 9,
1983).
\30\ 45 FR 37394.
\31\ Id.
\32\ Id.
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While the 1980 regulation fulfilled the Refugee Act's rulemaking
mandate, it was a temporary regulatory mechanism and merely functioned
to bridge the new statute with the system that was already in place
while the U.S. government took up a period of deliberate study and
analysis to design permanent procedures. 55 FR 30674, 30675 (July 27,
1990). In 1987, the INS published a more fulsome proposed regulation to
reform asylum adjudications. 52 FR 32552 (Aug. 28, 1987). In 1988, the
INS published a revised proposed rule in response to comments on the
1987 proposed rule, and in 1990, it promulgated the final regulation.
48 FR 5885 (Apr. 8, 1988); 55 FR 30674 (July 27, 1990). The final
system included, among other changes, the creation of a new corps of
asylum officers who would adjudicate asylum claims, moving away from
district directors. 55 FR 30676. The final rule also changed the
process for obtaining employment authorization, removing it from
district director discretion and instead mandating employment
authorization for asylum applicants who were not detained and whose
applications an asylum officer determined were not frivolous. Id. at
30676-77. The validity period was set to 1 year, with renewable
increments of up to 1 year. Id. The regulation also included automatic
termination of employment authorization upon expiration of the EAD or
60 days after denial of asylum, whichever was longer. Id.; see also id.
at 30682.
The INS's new regulatory scheme for asylum cases proved to be
flawed and inadequately resourced, and as a result, asylum processing
quickly became overwhelmed. By 1992, the INS received 103,964 asylum
applications but adjudicated only 21,996, a mere 21 percent of received
asylum applications.\33\ Since employment authorization was tethered to
the filing of a nonfrivolous asylum application, at this time asylum
applicants were typically employment authorized immediately.\34\ This
created a processing issue that fueled itself: as asylum adjudication
times increased, more aliens received employment authorization without
having to appear before an INS officer to establish identity or justify
their asylum claims, then more aliens began to use asylum applications
as a mechanism for prompt employment authorization which further
increased filings and asylum application processing times.\35\ In

[[Page 8631]]

addition to breeding asylum abuse and program integrity concerns, this
situation adversely impacted aliens with meritorious asylum claims by
increasing the backlog and decision wait times and leading to a rise in
unscrupulous immigration ``consultants'' who preyed on aliens with
meritorious asylum claims, convincing them to file boilerplate asylum
claims even when the aliens had their own valid claims.\36\
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\33\ INS, DOJ, ``1994 Statistical Yearbook of the Immigration
and Naturalization Service'' (Feb. 1996), p. 83.
\34\ FR 30681-82. Additionally, the direct filing of asylum
applications in the asylum office with jurisdiction over the
applicant's residence did not change until 1994. See 59 FR 14779,
14782.
\35\ See, e.g., David A. Martin, ``Making Asylum Policy: The
1994 Reforms'' 70 Wash. L. Rev. 725, 734-37 (July 1995).
\36\ Id.
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Faced with these difficulties and mounting pressures from internal
and external stakeholders, the INS published a proposed reform in March
1994 and final regulations in December 1994. 59 FR 14779 (Mar. 30,
1994); 59 FR 62284 (Dec. 5, 1994). INS's 1994 proposed rule could
easily describe the current state of DHS's asylum backlog, albeit with
an even larger backlog and longer wait times for adjudications:
The existing system for adjudicating asylum claims cannot keep pace
with incoming applications and does not permit the expeditious removal
from the United States of those persons who [sic] claims fail. While
part of this difficulty is attributable to limited resources, the
problem also stems in large part from the effort to meet procedural
requirements imposed by current regulations. On October 1, 1990, the
INS had a backlog of approximately 90,000 asylum claims. Since that
date, approximately 250,000 cases have been added to that backlog.
Asylum applications are received at a current rate approaching 150,000
per year. A significant and growing percentage of current receipts are
claims that appear on their face to be nonmeritorious or abusive. . . .
Indeed, most asylum applicants wait a year or more to receive even
initial decision on their cases.\37\
---------------------------------------------------------------------------

\37\ See 59 FR 14780.
---------------------------------------------------------------------------

As such, INS proposed several changes to the rules governing asylum
applications and associated EADs. Most relevant to what DHS endeavors
to do today were the provisions designed to decrease frivolous filings,
specifically the creation of the rule that asylum applicants could not
apply for employment authorization until 150 days had elapsed after
their initial filing of a complete asylum application.\38\ According to
the proposal, the INS then had 30 additional days to adjudicate the
employment authorization application.\39\ This 180-day period is
colloquially known as the ``180-day Asylum EAD Clock.'' \40\ The INS
proposed rule explained that the proposed 150-day wait for filing an
EAD application was important to encourage INS to adjudicate claims
promptly within the 150-day period to avoid having to separately
adjudicate the work authorization applications; and that it would
authorize INS to deny employment authorization to those whose
underlying asylum applications have been denied. The proposed rule
noted that this reform should reduce the number of asylum applications
filed primarily to obtain employment authorization. It also explained
that applicants with pending asylum claims would wait longer, but those
whose claims are not adjudicated within the 150-day period would,
subject to certain conditions, would be eligible to apply for and
receive work authorization; and that INS would adjudicate those
applications within 30 days, regardless of the merits of the underlying
asylum claim.\41\
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\38\ Id.
\39\ Id.
\40\ USCIS, ``The 180-Day Asylum EAD Clock Notice,'' https://www.uscis.gov/sites/default/files/document/notices/Applicant-Caused-Delays-in-Adjudications-of-Asylum-Applications-and-Impact-on-Employment-Authorization.pdf (last updated Mar. 2025).
\41\ See 59 FR 14779, 14780.
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The INS received 345 public comments in response to the proposed
rule and, in December 1994, published a final rule. 59 FR 62284, 62285
(Dec. 5, 1994).\42\ While the INS changed several parts of the proposed
rule in response to public comments, the provisions governing the 150-
day waiting period to apply for employment authorization and the 30-day
processing timeframe for adjudicating employment authorizations for
pending asylum applicants were both retained. 59 FR 62290-62291. The
INS discussed several public comments submitted that were not
supportive of the proposed 150-day waiting period and 30-day processing
timeframe changes, which included concerns that:
---------------------------------------------------------------------------

\42\ Not all public comments related to the 150-day waiting
period and the 30-day processing timeframe. Many of the public
comments related to the other proposed changes, including the
proposed filing fee for asylum applications and associated
employment authorization applications, the form of the asylum
application, how incomplete applications would be processed, renewal
of employment authorization, interviews and other procedures, and
how failures to appear by the alien would be processed. See
generally 59 FR 62284.
---------------------------------------------------------------------------

Asylum applicants would be forced to work illegally in
jobs where they would be underpaid and treated poorly but would have no
means of redress because of the fear of reprisals.
Advocated for eliminating the waiting period and
maintaining the current rule, which allowed immediate applications for
employment authorization and issuance within 90 days.
Advised providing exceptions to the waiting period by
granting employment authorization immediately or within 90 days to
applicants who demonstrate hardship or economic need (such as those
with no relatives in the United States or who have small children).
59 FR 62290. The INS responded to explain the belief that the
asylum process should be separated from the employment authorization
process and that the rule would discourage applicants from filing
meritless asylum applications solely to obtain employment
authorization. The INS further explained that it expected all
applicants to have work authorization after 180 days unless their
claims had been denied.
INS stated that it had considered in particular recommendations
that it establish alternate means for adjudicating employment
authorization based on the merits of the asylum application or on
economic need. INS noted that either alternative would invite a large
number of applications, thus diverting resources and undermining the
goal of asylum reform. The Department noted that it did not believe
loosening eligibility standards for employment authorization was the
appropriate path in light of the large number of applicants who applied
for asylum primarily as a means to gain work authorization, and that it
believed the rule would instead provide the best way to discourage
applications filed for this reason and enable it to grant asylum, and
work authorization, to applicants meriting such relief. 59 FR 62290-91.
Clearly, the intent was that this would decouple asylum
applications from employment authorization in order to disincentivize
frivolous filings and allow the system to function properly. Further,
DHS notes that the INS affirmatively decided to delay all aliens with
pending asylum applications (both meritorious and meritless filings)
the opportunity to apply for employment authorization expressly because
the INS believed this measure would help combat frivolous, fraudulent,
or otherwise meritless asylum applications filed primarily to obtain
employment authorization and regain control over the backlog and
processing times.
In 1996, shortly after the regulatory asylum reform, Congress
passed comprehensive immigration enforcement legislation, the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA), which,
among other things, included provisions

[[Page 8632]]

on asylum adjudications.\43\ IIRIRA states that any procedures
established under section 208(d)(1) of the INA; 8 U.S.C. 1158(d)(1),
``shall'' provide that, in the absence of exceptional circumstances,
final administrative adjudications of asylum applications ``shall'' be
completed within 180 days after the date applications are filed.\44\
Mirroring the 1994 regulatory reforms, IIRIRA also restricted the
Secretary from granting employment authorization to asylum applicants
until 180 days after the filing of the application for asylum.\45\
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\43\ Public Law 104-208, div. C, 110 Stat. 3009, 3009-546.
\44\ Id. sec. 604, 110 Stat. at 3009-694 (codified at INA sec.
208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii)).
\45\ Id. sec. 604, 110 Stat. at 3009-693 (codified at INA sec.
208(d)(2), 8 U.S.C. 1158(d)(2)).
---------------------------------------------------------------------------

The regulatory reforms, either alone or in tandem with the
statutory change, succeeded in curtailing meritless claims and
delivering fair and timely decisions on asylum cases. New asylum
filings actually decreased from their peak of 149,566 in FY 1995 to
just 30,261 in FY 1999, a decrease of nearly 80 percent in only five
FYs.\46\ At the same time, the approval rate significantly increased,
from 15 percent of cases adjudicated in FY 1993 to 38 percent in FY
1999.\47\ In February 2000, the INS issued a News Release celebrating
the 1994 Asylum Reforms (which became effective in January 1995),
including the following statement by INS Commissioner Doris Meissner,
``Five years ago, INS launched badly needed reform of an asylum system
that was overwhelmed, unresponsive and vulnerable to misuse.'' \48\ The
news release continued:
---------------------------------------------------------------------------

\46\ Ruth Ellen Wasem, Congressional Research Service, ``Asylum
and `Credible Fear' Issues in U.S. Immigration Policy'' (June 29,
2011), https://www.congress.gov/crs-product/R41753; INS, DOJ
``Asylum Reform: Five Years Later'' (Feb. 1, 2000), https://www.uscis.gov/sites/default/files/document/news/Asylum.pdf.
\47\ INS, DOJ ``1999 Statistical Yearbook of the Immigration and
Naturalization Service'' (Mar. 2002), p. 100. Percent approved is
`[t]he number of cases granted divided by the sum of: cases granted;
denied; and referred to an Immigration Judge following an
interview.''
\48\ INS, DOJ, ``Asylum Reform: Five Years Later'' (Feb. 1,
2000), https://www.uscis.gov/sites/default/files/document/news/Asylum.pdf.
---------------------------------------------------------------------------

By 1992, almost two-thirds of all claims became part of a
burgeoning backlog due to a lack of resources and effective procedures
for processing those claims. By 1993, the asylum system was in a
crisis, having become a magnet for abuse by persons filing applications
in order to obtain employment authorization.\49\
---------------------------------------------------------------------------

\49\ Id.
---------------------------------------------------------------------------

INS statistics showed a ``decrease of 75 percent in the number of
new claims being filed with INS, from 127,129 in FY 1993 to 30,261 in
FY 1999'' while ``the approval rate of cases heard by INS asylum
officers has increased from 15 percent of cases adjudicated in FY 1993
to an approval rate of 38 percent in FY 1999, another indicator that
INS is receiving more valid claims.'' \50\ These statistics show that
the 1994 rulemakings had an unmistakable impact on asylum program
integrity.\51\ With overall asylum filings decreasing and the approval
rate increasing, the clear implication was that ineligible aliens
(regardless of the basis for ineligibility or whether the filing was
frivolous, fraudulent, or otherwise meritless) stopped filing and, as a
result, clogged the asylum system. DHS seeks a similar result with this
proposed regulatory action.
---------------------------------------------------------------------------

\50\ Id.; see also INS, DOJ ``1999 Statistical Yearbook of the
Immigration and Naturalization Service'', p. 100 (Mar. 2002)
(Percent approved is `[t]he number of cases granted divided by the
sum of: cases granted; denied; and referred to an Immigration Judge
following an interview.'').
\51\ Id.; see also INS, DOJ, ``Asylum Reform: Five Years Later''
(Feb. 1, 2000), https://www.uscis.gov/sites/default/files/document/news/Asylum.pdf.
---------------------------------------------------------------------------

C. Continued 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. While little has changed with respect to asylum-
specific statutory and regulatory authorities for EADs for asylum
applicants since the 1994 regulatory reforms, there have been
significant operational changes and numerous challenges for these
cases, including what steps constitute a part of the adjudication and
the length of time to adjudicate the applications.\52\
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\52\ See 59 FR 62284, 62289 (Dec. 5, 1994). On July 26, 2018, in
Rosario v. USCIS, the U.S. District Court for the Western District
of Washington granted summary judgment against the government and
issued an order requiring USCIS to comply with the 30-day regulatory
timeline at 8 CFR 208.7. 365 F. Supp. 3d 1156 (W.D. Wash. 2018).
---------------------------------------------------------------------------

Application Support Centers
One such operational challenge arose after the 1994 regulatory
reforms, related to biometrics. In 1994 the INS was still using FD-258
fingerprint cards for the submission of biometrics for immigration
benefit requests. The INS accepted those FD-258 fingerprint cards
directly from applicants and petitioners through the mail. In 1997,
when funding the agency for 1998, Congress prohibited the INS from
accepting any fingerprint cards collected by entities outside the INS
for immigration benefits, except in certain instances when collected by
law enforcement agencies and in certain overseas situations.\53\
Previously, certain ``designated fingerprint services'' entities could
collect fingerprints and submit them to INS. This FD-258 process was
fraught with both errors and fraud.\54\ To comply with the law, INS
established the Application Support Centers (ASCs), which continue to
exist nationwide today and which DHS operates for the collection of
biometrics for immigration benefits. See 63 FR 12979 (Mar. 17, 1998).
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\53\ See Departments of Commerce, Justice, and State, the
Judiciary, and Related Agencies Appropriations Act of 1998, Title I,
Public Law 105-119, 111 Stat. 2440, 2447-48 (1997).
\54\ See Office of the Inspector General, DHS, OIG-16-130
``Potentially Ineligible Individuals Have Been Granted U.S.
Citizenship Because of Incomplete Fingerprint Records'' (Sept. 8,
2016), https://www.oig.dhs.gov/reports/2016-09/potentially-ineligible-individuals-have-been-granted-uscitizenship-because.
---------------------------------------------------------------------------

This new process was something of a double-edged sword. There were
notable advantages, including improved program integrity, capability
for identity verification, and a more automated conduit for criminal
history background checks. However, one time-intensive consequence was
that the new process required INS (and later USCIS) to affirmatively
schedule an alien's ASC appointment for biometrics collection after
receipt of a benefit request.\55\ At the time, the affirmative
scheduling of an ASC appointment after receipt of a benefit request
added anywhere from several weeks to over a month to the front-end
processing times for immigration benefit requests with an associated
biometrics collection. This continues to be true, as most aliens today
are scheduled for ASC

[[Page 8633]]

appointments approximately three to four weeks after receipt of a
benefit request.
---------------------------------------------------------------------------

\55\ In essence, INS or USCIS would receive a benefit request
and an employee would determine whether the filing was subject to a
biometrics requirement. The employee would then determine the
nearest ASC to the alien, according to the address provided on the
request. The employee would have to then determine the next
available appointment date and time for a biometrics collection at
that particular ASC. Finally, the employee would have to create a
paper appointment notice for the alien and mail it to the address
provided on the request. In order to give the alien a reasonable
amount of notice, and account for postal service delivery of the
written appointment notice, appointments were typically scheduled
approximately 30 days from the date of the appointment notice. While
much of this process was automated in recent years by USCIS, there
is still the need to afford the alien adequate notice of the
appointment and not overbook appointments at a particular ASC.
Consequently, while there is variance in backlogs and throughputs
from ASC to ASC, today USCIS still estimates the wait for an ASC
appointment to be several weeks. Additionally, if the scheduled
appointment is not convenient, the alien can use an online tool to
reschedule an existing appointment, but that does not help schedule
initial appointments faster. See generally USCIS, ``Preparing for
Your Biometric Services Appointment'' (last updated July 6, 2023),
https://www.uscis.gov/forms/filing-guidance/preparing-for-your-biometric-services-appointment.
---------------------------------------------------------------------------

Aggravated Felony Conviction Bar for EADs
With respect to employment authorization for pending asylum
applicants, the creation of ASCs and the requirement for biometrics
collection at certain facilities, operated by INS and later DHS,
brought to bear another problem. In the previously mentioned 1994 final
rule, INS amended the regulations to bar aliens convicted of an
aggravated felony from submitting an application for employment
authorization based on the pending asylum application. See 59 FR at
62299. Although there is no discussion on specific comments directly on
this point in the final rule, the INS did not amend the final rule to
remove the proposed bar for aliens convicted of an aggravated felony.
59 FR at 62291.
Prior to the 1994 rulemakings, having an aggravated felony
conviction was not grounds for denying an employment authorization
application,\56\ and prior to the creation of ASCs in 1998, the agency
accepted fingerprints on cards that were submitted with the benefit
request being filed. Once INS began requiring an alien to appear at an
ASC for biometric collection, it made compliance with both the
aggravated felony conviction ineligibility ground and the 30-day asylum
EAD processing timeframe extremely difficult. The most reliable way for
USCIS to identify criminality (e.g., aggravated felonies) is with a
Federal Bureau of Investigation (FBI) Identity History Summary (IdHS,
formerly known as a ``RAP sheet''), which locates criminal records
based on the alien's fingerprints.\57\ In order to obtain an alien's
RAP sheet from the FBI, INS needed to send the alien to the ASC--which
took several weeks. All the while, the 30-day asylum EAD processing
timeframe was running. See current 8 CFR 208.7(a)(1). Due to the
expanded logistics and process for obtaining RAP sheets, officers could
not comply with both provisions of 8 CFR 208.7(a)(1), which
simultaneously prohibited approval of an EAD to an aggravated felon and
required that the application be adjudicated within 30 days of filing.
See current 8 CFR 208.7(a)(1). This left INS, and, in turn, USCIS, in
an extremely difficult dilemma, as waiting on the results of biometrics
in order to identify an aggravated felony conviction for potential
ineligibility grounds meant that USCIS would violate the 30-day asylum
EAD processing timeframe. DHS recognizes that requiring biometrics
collection now and analyzing a variety of criminal issues may again
increase employment authorization application processing times, but DHS
firmly believes the increased benefits to national security and public
safety outweigh this potential delay in adjudications.
---------------------------------------------------------------------------

\56\ As explained above, the June 1980 INS interim regulation
implementing provisions of the Refugee Act had no waiting period or
ineligibilities. 45 FR 37392; see also 48 FR 5885 (Feb. 9, 1983)
(finalizing this interim rule).
\57\ See Criminal Justice Information Services Division (CJIS),
Federal Bureau of Investigation (FBI), ``Next Generation
Identification (NGI),'' https://www.fbi.gov/services/cjis/fingerprints-and-other-biometrics/ngi (last visited May 23, 2025).
---------------------------------------------------------------------------

Policy Memorandum 110 and USCIS-ICE Memorandum of Agreement.
Adding another layer of complexity to employment authorization
processing for pending asylum applicants, on July 11, 2006, USCIS
issued Policy Memorandum 110 (``PM 110'') entitled Disposition of Cases
Involving Removable Aliens, which mandated that officers refer
egregious public safety cases to USCIS' Fraud Detection and National
Security (FDNS) and suspend adjudication of such cases for 60 days or
until Immigration and Customs Enforcement (ICE) provides notification
of its action on the cases, which ever date was earlier.\58\ Imbedded
within PM 110 was a copy of a Memorandum of Agreement (MOA) with ICE,
dated June 20, 2006, negotiated and signed by both agencies.\59\ The
MOA detailed specific processes at both agencies for handling cases
referred to ICE by USCIS, including USCIS 60-day adjudicative hold, ICE
response time requirements, and specific guidance for cases where ICE
failed to provide any response within the 60-day timeline. The purpose
of the 60-day hold was to provide ICE with an appropriate amount of
time to adequately screen, vet, and investigate aliens and determine
what, if any, enforcement action was appropriate.\60\ However, the hold
also created a significant impediment to compliance with existing
regulations governing the timeline for adjudicating employment
authorization for pending asylum applicants. Consequently, this meant
that even where USCIS could schedule a biometrics collection and obtain
a RAP sheet within 30 days, if the RAP sheet (or any other source of
derogatory information) indicated the existence of a public safety
concern--even one that did not rise to the level of aggravated felony--
an additional 60-day hold would be required. Furthermore, in some
cases, scheduling such an alien for an ASC appointment could use the
entire 30-day (c)(8) EAD processing timeframe and that was prior to
referring the case to FDNS or ICE.
---------------------------------------------------------------------------

\58\ USCIS Policy Memorandum No. 110, ``Disposition of Cases
Involving Removable Aliens'' (Jul. 11, 2006).
\59\ Id.
\60\ USCIS, PM 110 (``USCIS will interrupt adjudication and FDNS
will refer the case to ICE so that ICE has an opportunity to decide
it, when and how it will issue an NTA and/or detain the alien.'');
see also Memorandum of Agreement Between United States Citizenship
and Immigration Services and United States Immigration and Customs
Enforcement on the Issuance of Notices to Appear to Aliens
Encountered During an Adjudication (June 20, 2006).
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On May 11, 2007, USCIS issued the Interoffice Memorandum Processing
of Applications for Ancillary Benefits Involving Aliens Who Pose
National Security or Egregious Public Safety Concerns,\61\ which
clarified PM 110 as it related to primary and ancillary benefit
requests. The Interoffice Memorandum expressly stated, ``The
adjudication of ancillary applications and petitions shall be suspended
for 60 days or until ICE provides notification of its intended
action(s) on the primary applicant, whichever is earlier.'' In fact,
the Interoffice Memorandum added another population of cases to the mix
as well, by requiring that any application for an ancillary benefit
filed by an alien who poses a national security concern would now be
processed in a similar manner as an egregious public safety case.\62\
As such, for any employment authorization application filed by a
pending asylum applicant with potential national security or public
safety derogatory information, officers could not comply with both the
30-day EAD processing timeframe and USCIS policy with respect to ICE
referrals. This created another extremely difficult situation even in
cases where USCIS already had a RAP sheet: screening and vetting in
cases with national security or public safety concerns meant that USCIS
would violate the asylum 30-day EAD processing timeframe. As USCIS
receipts have increased, so has the need to thoroughly screen and vet
cases, especially where there may be security concerns, and while the
agency continues to meet its national security responsibilities, the
30-day EAD processing timeframe also continues to make this effort
challenging.
---------------------------------------------------------------------------

\61\ Memorandum from Michael Aytes, Associate Director, District
Operations, HQOFO 70/1-P (May 11, 2007) https://www.uscis.gov/sites/default/files/document/memos/AncillaryEPSNS051107.pdf.
\62\ Id.
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Rosario v. USCIS.
Another ensuing challenge encountered for asylum related

[[Page 8634]]

employment authorization applications was the Rosario litigation. On
May 22, 2015, Rosario v. USCIS was filed in the U.S. District Court for
the Western District of Washington under case no. 2:15-cv-00813
challenging the delays in processing initial EADs for asylum
applicants.\63\ On July 26, 2018, in a published order, the District
Court found that USCIS data revealed that ``from 2010 to 2017, USCIS
met its 30-day deadline in only 22% of cases--that is, out of 698,096
total applications, USCIS resolved only 154,629 applications on time.
In 2017, USCIS timely resolved only 28% of applications.'' \64\
---------------------------------------------------------------------------

\63\ 365 F. Supp. 3d 1156 (W.D. Wash. 2018).
\64\ Rosario, 365 F.Supp.3d at 1158.
---------------------------------------------------------------------------

However, the District Court recognized USCIS made some changes in
response to the need to more quickly adjudicate the (c)(8) EAD
applications. First, the court recognized that two years earlier, USCIS
had increased the validity period of an initial asylum EAD from one
year to two years.\65\ Second, the court recognized that the previous
year USCIS provided checklists on its websites to assist asylum
applicants seeking to submit (c)(8) EAD applications.\66\ The court
found one of the ``chief purposes'' of the 30-day asylum EAD processing
timeframe, as part of the larger INS regulatory amendments, was ``to
ensure that bona fide asylees are eligible to obtain employment
authorization as quickly as possible.'' \67\ The court noted that the
focus on expediency is reinforced by how the agency described the INS's
1994 proposed rule: ``The INS will adjudicate these applications for
work authorization within 30 days of receipt, regardless of the merits
of the underlying asylum claim.'' \68\ Ultimately, the court granted
the plaintiffs' motion for summary judgment, denied USCIS' motion for
summary judgment, found that USCIS was in violation of 8 CFR
208.7(a)(1), enjoined USCIS from further failing to adhere to the 30-
day asylum EAD processing timeframe as set forth in 8 CFR 208.7(a)(1),
and ordered USCIS to submit status reports every six months regarding
the rate of compliance with the 30-day EAD processing timeframe.\69\
USCIS still submits status reports in compliance with the court order
as of the publication of this NPRM.\70\
---------------------------------------------------------------------------

\65\ See USCIS, ``USCIS Increases Validity of Work Permits to
Two Years for Asylum Applicants, U.S. Citizenship and Immigration
Services'' (Oct. 6, 2016), https://www.uscis.gov/archive/uscis-increases-validity-of-work-permits-to-two-years-for-asylum-applicants.
\66\ See Form M-1162, ``Optional Checklist for Form I-765(c)(8)
Filings,'' Asylum Applications (With a Pending Asylum Application)
Who Filed for Asylum on or after January 4, 1995, (July 17, 2017),
https://www.uscis.gov/archive/optional-checklist-for-form-i-765-c8-filings.
\67\ See Rosario, 365 F.Supp.3d at 1160 (citing to 62 FR at
10318).
\68\ See Rosario, 365 F.Supp.3d at 1160 (citing to 50 FR at
14780).
\69\ See Rosario, 365 F.Supp.3d at 1163.
\70\ See generally, USCIS, ``Rosario Class Action,'' https://www.uscis.gov/laws-and-policy/other-resources/class-action-settlement-notices-and-agreements/rosario-class-action (last updated
Sept. 19, 2022).
---------------------------------------------------------------------------

Subsequent Regulatory Efforts and Litigation.
More recently, there have been multiple efforts to reform the
existing system, with the intent of relieving the agency of the burden
of adjudicating (c)(8) EADs within 30 days and diminishing the
incentive to file frivolous, fraudulent, or otherwise meritless
affirmative asylum applications. In recent years, DHS published two
regulations aimed at reforming the existing system and accomplishing
those goals. In 2020, DHS published the Removal of 30-Day Processing
Provision for Asylum Applicant-Related Form I-765 Employment
Authorization Applications (``Timeline Repeal Rule'') Final Rule, which
removed the regulatory provision stating that USCIS has 30 days from
the date an alien with a pending asylum application files the initial
application for employment authorization to grant or deny that
application. 85 FR 37502 (June 22, 2020). The rule also removed the
provision requiring that an application for renewal of a (c)(8) EAD
must be received by USCIS 90 days prior to the expiration of the
employment authorization. Id. In 2020, DHS also published the Asylum
Application, Interview, and Employment Authorization for Applicants
(``Broader Asylum EAD Rule'') Final Rule, which modified regulations
governing asylum applications, interviews, and eligibility for
employment authorization based on a pending asylum application. FR
38532 (June 26, 2020). Major provisions of that rule included removing
the ``deemed complete'' provision related to asylum application
filings, increasing the waiting period before asylum applicants were
eligible to file for and receive an EAD, and imposing other eligibility
requirements. Id. In January 2018, prior to the promulgation of these
rules, the affirmative asylum backlog stood at approximately 311,000
pending cases.\71\ By the end of FY 2022, the backlog had nearly
doubled to approximately 625,000 affirmative asylum applications, and
by the end of FY 2023, had tripled to more than 1 million pending
affirmative asylum cases.\72\ This drastic increase in the affirmative
asylum backlog highlights the dire situation USCIS finds itself in and
the urgent need for reform of the existing regulations and process.
---------------------------------------------------------------------------

\71\ 71 OIG, USCIS Faces Challenges Meeting Statutory Timelines
and Reducing Its Backlog of Affirmative Asylum Cases (July 3, 2024),
available at: https://www.oig.dhs.gov/sites/default/files/assets/2024-07/OIG-24-36-Jul24.pdf.
\72\ Id.
---------------------------------------------------------------------------

Litigation followed the publication of these two rules (``2020
Asylum EAD Rules''), including CASA \73\ in the U.S. District Court for
the District of Maryland, and Asylumworks \74\ in the U.S. District
Court for the District of Columbia. On September 11, 2020, the court in
CASA imposed a preliminary injunction requiring that USCIS not apply
the 2020 Asylum EAD Rules to members of CASA and Asylum Seeker Advocacy
Project (ASAP) organizations.\75\ The CASA preliminary injunction
applying only to members of the CASA and ASAP created a bifurcated and
operationally challenging application of the 2020 asylum rules in that
the rules were enjoined from applying to organizational members while
continuing to apply to non-member applicants. The CASA court made a
finding that was significant to this proposed rulemaking, when the
court determined the elimination of the 30-day Asylum EAD clock
(``Timeline Repeal Rule'') was arbitrary and capricious for two
different reasons. Specifically, the court found, first, that USCIS'
rationale for elimination of the 30-day processing timeframe belied the
evidence in the record and, second, that USCIS' responses to public
comments were conclusory and reflected that the agency did not consider
important policy alternatives (e.g., imposing a longer processing
timeframe).\76\ Specifically, the court found, ``But rather than giving
adequate consideration to this important alternative, the agency
provided a half-baked and internally contradictory explanation for
rejecting it. Its rationale does not pass muster.'' \77\ Relying on
Rosario, the court noted ``While the agency's difficulty in complying
with the 30-day deadline supports extending the timeline, it hardly
explains why there should be no timeline at all.'' \78\ In this
proposed rule, DHS seeks to

[[Page 8635]]

extend--rather than eliminate--the 30-day EAD processing timeline.
---------------------------------------------------------------------------

\73\ See CASA de Maryland, Inc. v. Wolf, 486 F. Supp. 3d 928 (D.
Md. 2020).
\74\ Asylumworks v. Mayorkas, 590 F. Supp. 3d 11 (D.D.C. Feb. 7,
2022).
\75\ CASA, 486 F. Supp. 3d at 973-74.
\76\ See id. at 961-63.
\77\ Id. at 963.
\78\ Id.
---------------------------------------------------------------------------

On February 7, 2022, the U.S. District Court for the District of
Columbia issued an order in Asylumworks vacating the 2020 Asylum EAD
Rules in their entirety.\79\ On September 22, 2022, DHS published a
final rule titled ``Asylum Application, and Employment Authorization
for Applicants; Implementation of Vacatur'' (87 FR 57795 (Sept. 22,
2022)) that implemented the court order in Asylumworks by removing the
changes made by the 2020 Asylum EAD Rules and restored the regulatory
text that predated the 2020 Asylum EAD Rules.
---------------------------------------------------------------------------

\79\ See Asylumworks v. Mayorkas, 590 F. Supp. 3d 11 (D.D.C.
Feb. 7, 2022) (``Asylumworks vacatur''). The vacatur decision in
Asylumworks effectively mooted the CASA case. The CASA court
acknowledged the case had become moot on May 18, 2023, when it
granted the government's motion to dismiss. See CASA de Maryland,
Inc. v. Mayorkas, No. 8:20-CV-2118-PX, 2023 WL 3547497 (D. Md. May
18, 2023).
---------------------------------------------------------------------------

As a result of the Asylumworks court order, since February 7, 2022,
USCIS has been required to process all initial (c)(8) EAD applications
within 30 days of filing. While the court ordered a return to a
regulatory requirement that had existed until 2020, the burden created
by the order was significant and continues to impact overall EAD
processing due to the surge in (c)(8) EAD applications. Following the
Asylumworks vacatur, at the end of February 2022, there were 93,639
pending EAD applications to which the 30-day processing timeframe
requirement applied, including those aliens who were CASA or ASAP
members who already benefited from the 30-day processing timeframe and
those who were not previously subject to the CASA injunction and for
whom USCIS was not subject to a processing timeframe prior to the
vacatur.\80\ To address the backlog of cases and comply with the
court's order, USCIS surged resources for the entire initial (c)(8)
workload, including adding staff (pulling from other EAD workloads as
well as new hires) and authorizing overtime.
---------------------------------------------------------------------------

\80\ See Asylumworks v. Mayorkas 1:20-cv-03815-BAH (D.D.C. Feb.
7, 2022) memorandum opinion explaining CASA and ASAP members
previously were granted a preliminary enjoined enforcement of both
2020 EAD rules; see also USCIS Stopped Applying June 2020 Rules
Pursuant to Court Order in Asylumworks v. Mayorkas (Sept. 21, 2022)
(noting CASA and ASAP members no longer need to provide evidence of
membership with their initial C8 EAD applications), https://www.uscis.gov/archive/uscis-stopped-applying-june-2020-rules-pursuant-to-court-order-in-asylumworks-v-mayorkas.
---------------------------------------------------------------------------

Changing EAD Validity Periods
Additionally, USCIS utilized a different method to help manage the
(c)(8) EAD operational workload. In an effort to control the (c)(8)
processing times, on several occasions USCIS has extended the validity
periods of (c)(8) EADs.
First, in 2016, USCIS increased the validity period of an initial
and renewal asylum EADs from one year to two years.\81\ This fact was
recognized by the Rosario Court in its grant of summary judgment.\82\
As data referenced in other parts of this proposed rulemaking
illustrate, this did not help with receipts or processing times. So, on
September 27, 2023, USCIS extended the validity period for (c)(8) EADs
(both initials and renewals) again, this time from two years to five
years. The stated justification was, ``[t]he increase in the EAD
validity period will reduce the frequency with which affected
noncitizens must file an Application for Employment Authorization (Form
I-765) with USCIS if they wish to renew their EAD.'' \83\ The purpose
of this policy change was to alleviate some operational pressure to
adjudicate renewals prior to expiration solely based on USCIS
processing times with an overall benefit of supporting all timely
adjudications of employment authorization, including initial
applications for (c)(8) EADs.
---------------------------------------------------------------------------

\81\ See USCIS, ``USCIS Increases Validity of Work Permits to
Two Years for Asylum Applicants, U.S. Citizenship and Immigration
Services'' (Oct. 6, 2016), https://www.uscis.gov/archive/uscis-increases-validity-of-work-permits-to-two-years-for-asylum-applicants.
\82\ See Rosario, 365 F.Supp.3d at 1158.
\83\ Id.
---------------------------------------------------------------------------

To date, the agency is still ascertaining the effectiveness of the
validity period extension. What is clear is that with some
fluctuations, monthly asylum application filings rose from 36,728 in
October 2023 to 53,182 in January 2025, before falling to 40,344 in
April 2025.\84\ Initial applications for (c)(8) EAD filings increased
almost every single month from 90,307 in October 2023 before reaching a
high of 152,341 in January 2025.\85\ Since that time, initial EAD
(c)(8) EAD receipts have somewhat decreased over recent months, but
rebounded to 153,888 in July 2025.\86\
---------------------------------------------------------------------------

\84\ USCIS National Production Dataset (NPD), May 27, 2025.
\85\ Id; USCIS OPQ Data, ``I-765, Application for Employment
Authorization, C08 Eligibility Category, Receipts from August 1,
2024-July 31, 2025'' (Aug. 26, 2025).
\86\ Id.
---------------------------------------------------------------------------

On December 4, 2025, USCIS issued policy guidance in the USCIS
Policy Manual to update the maximum EAD validity periods for certain
EAD categories, including aliens with pending asylum applications. See
USCIS, Policy Alert, ``Updating Certain Employment Authorization
Document Validity Periods'' (Dec. 4, 2025), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20251204-EmploymentAuthorizationValidity.pdf. Effective December 5, 2025, the
maximum EAD validity period for aliens with pending asylum applications
has been reduced to 18 months. Id. This change is intended to ensure
more frequent vetting of aliens applying for work authorization in the
United States and will better enable USCIS to deter fraud and detect
aliens with potentially harmful intent. Id.Second, in 2024, DHS
published the ``Increase of the Automatic Extension Period of
Employment Authorization and Documentation for Certain Employment
Authorization Document Renewal Applicants'' Final Rule which increased
the automatic extension period for expiring EADs for certain renewal
applicants from 180 to 540 days in order to prevent aliens from
experiencing lapses in employment authorization due to significant
delays in EAD processing times. 89 FR 101208 (Dec. 13, 2024).\87\ While
this rule extended authorization periods for a range of EAD categories,
it applied to (c)(8) applicants, and DHS discussed the surge in (c)(8)
applications as part of the support for that rule. See, e.g., id. at
101220.\88\
---------------------------------------------------------------------------

\87\ See also 87 FR 26614 (May 4, 2022) (temporary final rule on
this same topic); 89 FR 24628, 24634 (Apr. 8, 2024) (same).
\88\ On October 30, 2025, DHS ended the practice of
automatically extending the validity period for EADs in certain
categories, including aliens with pending asylum applications. 90 FR
48799 (Oct. 30, 2025). DHS explained that this change was designed
to ensure complete and thorough vetting of all EAD applicants and
that USCIS only issues EADs to aliens who are in fact eligible. 90
FR 48807-08.
---------------------------------------------------------------------------

During the (c)(8) EAD validity extension and the automatic
extensions, asylum application receipts increased while initial (c)(8)
EADs significantly increased. Reasonable minds can disagree on whether
it was prudent or appropriate from a program integrity perspective to
more than double the validity period of (c)(8) EADs to alleviate some
operational pressure on renewal based on USCIS processing times with an
overall benefit of supporting all timely adjudications of employment
authorization, including initial (c)(8) EAD applications. Nevertheless,
it is clear that DHS has attempted multiple solutions and attempted to
regain control over the

[[Page 8636]]

(c)(8) filings using regulatory, policy, and operational tools--but all
efforts have failed, and receipt volumes keep rising.
Frivolous, Fraudulent, and Meritless Filings
There are numerous and well-documented examples of frivolous,
fraudulent, and meritless asylum filings.\89\ Some asylum fraud schemes
have been perpetrated for the primary purpose of obtaining an asylum
EAD.\90\ While USCIS uses various methods to identify fraud in specific
affirmative asylum applications, a GAO Report concluded that despite
its robust methods USCIS actually had limited capability to detect
fraud in affirmative asylum applications.\91\ The GAO reported that
USCIS asylum officers encountered challenges with proving fraud in
asylum filings due to the nonadversarial, cooperative approach that
asylum officers are trained to take when interviewing asylum
applications.\92\ According to an Asylum Division Branch Chief cited in
the report, while the ``cooperative approach aims to protect genuine
asylees, it can also create favorable circumstances for ineligible
individuals who seek to file fraudulent claims'' and the GAO reported
that asylum officers ``in seven of the eight asylum offices we spoke
with told us that they have granted asylum in cases in which they
suspected fraud.'' \93\
---------------------------------------------------------------------------

\89\ See generally, DOJ, Press Release, ``Brooklyn Attorneys
Sentenced For Asylum Fraud Scheme'', Press Release, ``SoCal
Immigration Consultants Sentenced to Prison in Scheme That Filed
Bogus Asylum Applications for Hundreds of Chinese Nationals'' (May
6, 2014), https://www.ice.gov/news/releases/socal-immigration-consultants-sentenced-prison-scheme-filed-bogus-asylum-applications;
DOJ, Press Release, ``Three Defendants Sentenced in Manhattan
Federal Court for Roles in Immigration Asylum Fraud Scheme'' (Mar.
14, 2014), https://archives.fbi.gov/archives/newyork/press-releases/2014/three-defendants-sentenced-in-manhattan-federal-court-for-roles-in-immigration-asylum-fraud-scheme; DOJ, Press Release,
``Florida Resident Charged in Scheme to Submit Fraudulent Asylum
Applications'' (Jan. 24, 2025), https://www.justice.gov/usao-ndca/pr/florida-resident-charged-scheme-submit-fraudulent-asylum-applications; DOJ, Press Release, ``Executives of Immigration
Services Company Charged in Scheme to Submit Fraudulent Asylum
Applications'' (Oct. 11, 2024), https://www.justice.gov/usao-ndca/pr/executives-immigration-services-company-charged-scheme-submit-fraudulent-asylum; DOJ, Press Release, ``Twenty-Six Individuals,
Including Six Lawyers, Charged in Manhattan Federal Court with
Participating in Immigration Fraud Schemes Involving Hundreds of
Fraudulent Asylum Applications'' (Dec. 18, 2012), https://archives.fbi.gov/archives/newyork/press-releases/2012/twenty-six-individuals-including-six-lawyers-charged-in-manhattan-federal-court-with-participating-in-immigration-fraud-schemes-involving-hundreds-of-fraudulent-asylum-applications; DOJ, Press Release,
``Middlesex County, New Jersey, Man Admits Attempting to Obtain
United States Citizenship by Fraud'' (Apr. 8, 2019), https://www.justice.gov/usao-nj/pr/middlesex-county-new-jersey-man-admits-attempting-obtain-united-states-citizenship-fraud; DOJ, Press
Release, ``Broward Woman Charged in Scheme to Submit Fraudulent
Asylum Applications'' (Mar. 12, 2025), https://www.justice.gov/usao-sdfl/pr/broward-woman-charged-scheme-submit-fraudulent-asylum-applications.
\90\ See generally, USCIS, Press Release, ``Phony Immigration
Attorney Who Filed Hundreds of Fraudulent Asylum Applications
Sentenced to More Than 20 Years in Federal Prison'' (Apr. 13, 2021),
https://www.uscis.gov/archive/phony-immigration-attorney-who-filed-hundreds-of-fraudulent-asylum-applications-sentenced-to-more; DOJ,
Press Release, ``Thai National Admits to Running Immigration Fraud
Scheme'' (Feb. 7, 2017), https://www.justice.gov/usao-ri/pr/thai-national-admits-running-immigration-fraud-scheme.
\91\ GAO, Report to Congressional Requesters, ``Asylum:
Additional Actions Needed to Assess and Address Fraud Risks'' (Dec.
2015), https://www.gao.gov/assets/gao-16-50.pdf.
\92\ GAO, Report to Congressional Requesters, ``Asylum:
Additional Actions Needed to Assess and Address Fraud Risks'' (Dec.
2015), https://www.gao.gov/assets/gao-16-50.pdf.
\93\ GAO Report, ``Asylum: Additional Actions Needed to Assess
and Address Fraud Risks'' (Dec. 2015), https://www.gao.gov/assets/gao-16-50.pdf.
---------------------------------------------------------------------------

This is not a new revelation. As the former INS Commissioner noted
in 2000 regarding the asylum reforms, ``By 1993, the asylum system was
in a crisis, having become a magnet for abuse by persons filing
applications in order to obtain employment authorization.'' \94\ Even
more telling, during the same period, incentives to abuse the asylum
system reemerged as well. The number of EADs approved for aliens with
asylum applications pending for more than 180-days increased from
55,000 in FY 2016 to 270,000 in FY 2022. This increase in EAD approvals
may suggest that meritless asylum applications, filed for the purpose
of obtaining work authorization, have increased alongside asylum
application processing times.\95\
---------------------------------------------------------------------------

\94\ DOJ, News Release ``Asylum Reform: Five Years Later'' (Feb.
1, 2000), https://www.uscis.gov/sites/default/files/document/news/Asylum.pdf.
\95\ Doris Meissner, Faye Hipsman, & T. Alexander Aleinikoff,
``U.S. Asylum System in Crisis: Charting a Way Forward'' Migration
Policy Institute, (Sept. 2018).
---------------------------------------------------------------------------

All told, a myriad of factors contributed to the size and growth of
the backlog, which then feeds abuse of the system. There were certainly
external factors. Over the past decade, USCIS, along with other DHS
components, have been substantially taxed due to a surge of aliens
attempting to enter the United States at and between ports of entry and
expressing a fear of returning to their home countries, thereby
requiring a credible fear or reasonable fear screening. Starting in
2014, USCIS saw a surge in affirmative asylum filings. In 2012, the
Asylum Division received approximately 3,000 applications per
month.\96\ By FY 2014, that number doubled, reaching 6,000 filings per
month and steadily grew until the peak in March 2017.\97\ A 2020
Citizenship and Immigration Services Ombudsman's Report found ``Total
apprehensions of inadmissible aliens at the Southern border, after
reaching an all-time high of 1.6 million in FY 2000, rose again from
444,859 in FY 2015 to 977,509 in FY 2019.'' \98\
---------------------------------------------------------------------------

\96\ USCIS, ``Affirmative Asylum Statistics: July, August and
September 2014'' (Oct. 28, 2014), https://www.uscis.gov/sites/default/files/USCIS/Outreach/Upcoming%20National%20Engagements/PED_Affirmative_Asylum_July_August_September_2014.pdf.
\97\ Id.
\98\ CIS Ombudsman's Report 2020, at 43.
---------------------------------------------------------------------------

Additionally, COVID-19 exacerbated existing problems. On March 18,
2020, USCIS suspended routine in-person services to help slow the
spread of COVID-19.\99\ ``This included USCIS asylum offices and ASCs
used for collecting biometrics. On average, USCIS asylum offices
conduct between 2,000 to 4,500 interviews a month; these interviews
were not taking place during the period the offices remained closed.''
\100\
---------------------------------------------------------------------------

\99\ USCIS, ``USCIS Temporarily Closing Offices to the Public
March 18-April 1'' (Mar. 17, 2020), https://www.uscis.gov/archive/uscis-temporarily-closing-offices-to-the-public-march-18-april-1.
\100\ CIS Ombudsman's Report 2020, at 47.
---------------------------------------------------------------------------

USCIS policy and processing changes also led to growth in the
backlog. INS developed ``Last-in, First-out'' (LIFO) processing in the
mid-1990s. The LIFO system is designed to allow employment
authorization for asylum seekers while discouraging aliens from
potentially filing meritless asylum applications to take advantage of
the backlog to obtain employment authorization during the period in
which their cases are pending in the backlog. In other words, by giving
priority to the newest cases, the intent was that aliens who may have
filed asylum applications solely to obtain work authorization would
have their cases heard more quickly and denied during the waiting
period, meaning that any efforts to file solely to obtain work
authorization would be fruitless. LIFO remained in place for years.
Then on December 26, 2014, USCIS began prioritizing working
affirmative asylum cases in the order which they were received; this
``First-In, First-Out'' (FIFO) processing was a deviation from past
agency practice.\101\ As a result of this change the asylum backlog
grew more than 1750 percent between 2013

[[Page 8637]]

and 2018.\102\ As such, to ``stem the growth of the agency's asylum
backlog'' and ``deter those who might try to use the existing backlog
as a means to obtain employment authorization,'' in January 2018 USCIS
returned to LIFO processing that had been in place for nearly 20 years
from 1995 to 2014.\103\ USCIS' announcement explained that returning to
LIFO would ``allow USCIS to identify frivolous, fraudulent or otherwise
non-meritorious asylum claims earlier and place those individuals into
immigration proceedings.'' \104\ However, the damage was already done.
As the former Commissioner of the INS noted, ``Beginning in 2010, and
especially since 2014, affirmative applications, credible-fear claims,
and backlogs--in both the immigration courts and the Asylum Division--
have ballooned.'' \105\ In FY2010, USCIS received 28,000 affirmative
asylum applications, but by FY2017, USCIS received 143,000 asylum
applications (a 402% increase).\106\
---------------------------------------------------------------------------

\101\ USCIS, Press Release ``USCIS Processing of Asylum Cases''
(Nov. 6, 2020), https://www.uscis.gov/archive/uscis-processing-of-asylum-cases.
\102\ Id.
\103\ USCIS, Press Release, ``USCIS to Take Action to Address
Asylum Backlog'' (Jan. 31, 2018); https://www.uscis.gov/news/news-releases/uscis-take-action-address-asylum-backlog.
\104\ Id.
\105\ Doris Meissner, Faye Hipsman, & T. Alexander Aleinikoff,
``U.S. Asylum System in Crisis: Charting a Way Forward'' Migration
Policy Institute, (Sept. 2018).
\106\ Id.
---------------------------------------------------------------------------

FDNS Directorate is responsible for safeguarding the integrity of
the nation's lawful immigration system by leading agency efforts to
combat fraud, detecting national security and public safety threats,
and maximizing law enforcement and Intelligence Community partnerships.
FDNS's case management system, FDNS NexGen, tracks certain records
actions relevant to USCIS adjudications. Specifically important for
this proposed rule, NexGen contains relevant data on pending and
adjudicated asylum applications with a ``Fraud Found'' Statement of
Findings (SOF). NexGen data reveals that FDNS has identified 8,392
aliens who filed an asylum application and also had a ``Fraud Found''
SOF relating to that alien.\107\ Further, NexGen data reveals 1,240
aliens who had attorneys or representatives, filed an asylum
application, and also had a ``Fraud Found'' SOF relating to that
alien.\108\ Of course, this is not an exhaustive list of fraud among
all asylum applications, since only cases where fraud is suspected are
even referred to FDNS for investigation.
---------------------------------------------------------------------------

\107\ It must be noted that not all of these Fraud Found SOFs
related to the asylum application, however this is to be expected.
Sometimes fraud and other irregularities are not discovered until
after an immigration benefit is approved and this is not exclusive
to asylum. For example, INA 318 establishes as a requirement for
naturalization that an alien was lawfully admitted as a permanent
resident, which is a specific requirement for naturalization that
every alien should have already complied with when they obtained
their permanent resident status. In the context of this data, asylum
fraud may not be discovered until an alien filed for adjustment of
status or naturalization--which is why the ``Fraud Found'' SOF may
relate to another application filed by the same alien who submitted
the application for asylum.
\108\ FDNS analysis of NexGen data, May 22, 2025.
---------------------------------------------------------------------------

USCIS recognizes that occasionally attorneys and representatives
are the source of asylum fraud. Within USCIS' Office of the Chief
Counsel is the USCIS Disciplinary Counsel, an office tasked with
tracking attorneys and representatives who engage in fraud or other
unscrupulous practices. According to USCIS Disciplinary Counsel, there
are numerous practitioners and former practitioners who engage in
fraudulent practices with asylum cases filed before USCIS.\109\ EOIR
publishes a list of disciplined practitioners who are not permitted to
appear before EOIR or DHS.\110\
---------------------------------------------------------------------------

\109\ See generally, Advance Local Media, ``Disbarred attorney
on trial for taking money from Hispanic clients found guilty'' (Apr.
11, 2017), https://www.al.com/news/birmingham/2017/04/disbarred_attorney_who_took_mo.html; Office of the Massachusetts
Attorney General, ``Immigration Attorney Barred From Running Asylum
Scam, Ordered to Pay More Than $240,000 Following AG Lawsuit'' (Mar.
24, 2022), https://www.mass.gov/news/immigration-attorney-barred-from-running-asylum-scam-ordered-to-pay-more-than-240000-following-ag-lawsuit; Commonwealth of Massachusetts Board of Bar Overseers of
the Supreme Judicial Court, ``In re: Matter of George Maroun, Jr.,
BBO No. 674213'' (Oct. 21, 2024), https://bbopublic.massbbo.org/web/f/HRPT-1-22-00273564_et_al.pdf; NPR, ``Thousands Could Be Deported
As Government Targets Asylum Mills' Clients'' (Sept. 28, 2018),
https://www.npr.org/sections/money/2018/09/28/652218318/thousands-could-be-deported-as-government-targets-asylum-mills-clients
(detailing Operation Fiction Writer in which over 3,500 primarily
Chinese immigrants unlawfully obtained asylum, ``During that probe,
federal prosecutors in New York rounded up 30 immigration lawyers,
paralegals and interpreters who had helped immigrants fraudulently
obtain asylum in Manhattan's Chinatown and in Flushing, Queens'');
DOJ, Press Release, ``Defendants at Two New York City Firms Prepared
Coached Clients to Lie During Immigration Proceedings'' (Feb. 18,
2021), https://www.justice.gov/usao-sdny/pr/attorneys-and-managers-fraudulent-asylum-scheme-charged-manhattan-federal-court; Matter of
Sofer, 2023 NY Slip Op 00033 Decided on January 05, 2023 Appellate
Division, First Department (Jan. 5, 2023), https://law.justia.com/cases/new-york/appellate-division-first-department/2023/motion-no-2022-03963-case-no-2022-00928.html (``On or about March 7, 2022, the
Attorney Grievance Committee (Committee) filed a notice of petition
and petition of charges pursuant to Judiciary Law Sec. 90(2) and
the Rules for Attorney Disciplinary Matter (22 NYCRR) Sec. 1240.8
seeking an order that respondent be disciplined for professional
misconduct related to his representation of six clients with regard
to their immigration matters, particularly in filing asylum
applications and/or cancellation of removal relief.''); Supreme
Court of New Jersey Disciplinary Review Board, ``In the Matter of
Douglas Andrew Grannan, an Attorney at Law'' Docket No. DRB 20-236
(June 2, 2021), https://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1142939; Supreme Judicial Court of
Massachusetts, ``In re: Stephen A. Lagana'' No. BD-2010-072 from
hearing by the Massachusetts Board of Bar Overseers (Aug. 8, 2010),
https://bbopublic.massbbo.org/web/f/bd10-072.pdf.
\110\ See EOIR, DOJ, ``List of Currently Disciplined
Practitioners'' (May 14, 2025), https://www.justice.gov/eoir/list-of-currently-disciplined-practitioners; see also 8 CFR 1003.101.
---------------------------------------------------------------------------

In an effort to correlate disciplined or suspended attorneys to
frivolous, fraudulent, or meritless asylum filings, FDNS searched
asylum applications that were filed by, or associated with, these
disciplined or suspended attorneys and representatives. According to
USCIS data, the 1,074 (at the time USCIS reviewed) disciplined or
suspended attorneys and representatives were associated with 84,586
asylum applications in GLOBAL, USCIS' case management system for
asylum.\111\ This search was conducted by the attorney or
representative's name and, as such, could have yielded a small degree
of false positives when the attorney or representative has a common
name. At the same time, DHS recognizes that certain unscrupulous
attorneys or representatives may continue to file immigration benefit
requests for clients after being disciplined or suspended, in such
cases the attorney or representative simply does not file a G-28 for
the alien. In those cases, the FDNS name search for attorney or
representative would have underrepresented the actual number of asylum
applications filed by this population of disciplined or suspended
attorneys. DHS notes that this is a recognized problem and even the
American Immigration Lawyers Association (AILA) has issued guidance to
its practitioners regarding ethical concerns to be considered when an
attorney decides whether to file an affirmative application for asylum,
knowing the alien is not eligible for asylum, and the attorney is
acting solely for the purpose of having the alien deliberately placed
in removal proceedings.\112\ The AILA guidance notes that, depending on
the facts of a particular case, an attorney's conduct could be
considered frivolous under the
---------------------------------------------------------------------------

\111\ USCIS FDNS Systems and Integration Division Data, ``DOJ
EOIR Disbarred Attorney Match to Global Asylum Receipts'' (May 28,
2025).
\112\ Matthew Blaisdell and Michele Carney, ``Ethical
Considerations Related to Affirmatively Filing an Application for
Asylum for the Purpose of Applying for Cancellation of Removal and
Adjustment of Status for a Nonpermanent Resident'' American
Immigration Lawyers Association, (updated July 31, 2020) https://www.aila.org/library/submitting-an-affirmative-asylum-app-ethical-qs.

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[[Page 8638]]

asylum-specific definition within 8 CFR, the American Bar Association's
Model Rules, and the more general definition of ``frivolous'' found in
8 CFR; violate the requirement that an attorney provide candor to the
tribunal; undercut the requirement that an attorney exhibit competence
and diligence; and, in certain circumstances, rise to the level of
criminal liability per 18 U.S.C. 1001 (knowing false statements) and 18
U.S.C. 1546 (fraud and misuse of visas and other immigration
documents).\113\
---------------------------------------------------------------------------

\113\ Id.
---------------------------------------------------------------------------

However, these cases with ``Fraud Found'' SOFs, or other fraud
possibilities relating to aliens or attorneys/representatives, are not
the only concern. One of the purposes of this rule is to combat
``frivolous, fraudulent, and meritless'' asylum applications and their
associated applications for employment authorization, but the FDNS
``Fraud Found'' data arguably only accounts for the ``fraudulent''
applications and likely not the ``frivolous'' or ``meritless''
applications. When FDNS finds fraud after an administrative
investigation, the record contains sufficient evidence to conclude
there was a knowingly false representation of a material fact with the
intent to deceive.\114\ While the ``Fraud Found'' data is not
exhaustive, it is the best direct data USCIS has on these cases; USCIS
could not track fraudulent cases that were not identified or cases with
fraud indicators that were not referred internally to FDNS. Quantifying
``meritless'' cases seems even more difficult. In these cases, the
alien's filing does not have to rise to the level of fraud or willful
misrepresentation under INA 212(a)(6)(C)(i); rather, ``meritless''
cases are simply cases that have no value or, possibly, that do not
meet the substantive requirements for asylum. ``Frivolous'' and
``meritless'' cases, by their definition, cannot be approved. However,
these cases remain in the pending affirmative asylum caseload, and the
aliens who filed them are eligible to apply for (c)(8) EADs as a
result.
---------------------------------------------------------------------------

\114\ See USCIS, ``Policy Manual,'' https://www.uscis.gov/policy-manual/volume-8-part-j-chapter-2 (last updated May 13, 2025).
---------------------------------------------------------------------------

USCIS data from FY2015 to present helps scope this problem and
reveals some startling trends. Of course, asylum applications have
risen incredibly since FY2015, when USCIS received 83,463 new asylum
applications and the number of pending cases was 118,217 cases.\115\ In
FY 2017, the new receipts reached 142,254 with a pending caseload of
306,078.\116\ Then, receipts in FY 2018 began to drop for four
consecutive years until 2021, when receipts were 65,518 with a pending
caseload of 452,181.\117\ In FY2022, new asylum receipts jumped to
247,790 with a pending caseload of 664,290.\118\ In FY2023, new asylum
receipts jumped again to 464,398, with a pending caseload of
1,081,440.\119\ In FY2024, new asylum receipts dipped from the previous
year slightly to 422,457; however the pending caseload continued to
grow, reaching a high total of 1,374,006.\120\ Through most of FY2025,
new receipts are 331,883, and the pending caseload has grown to
1,525,933.\121\ DHS provides in Table 2 data applicable to Form I-589,
Application for Asylum and for Withholding of Removal (principals only)
by FY, data type, and denial/referral reasons, FY2015-2025 (through May
22, 2025).
---------------------------------------------------------------------------

\115\ USCIS OPQ DATA, ``By Fiscal Year, Data Type, and Deny/
Referral Reasons'' (May 22, 2025).
\116\ Id.
\117\ Id.
\118\ Id.
\119\ Id.
\120\ Id.
\121\ Id.

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[[Page 8639]]

[GRAPHIC] [TIFF OMITTED] TP23FE26.017

Since 2015, new asylum receipt volumes have varied from a low of
65,518 in FY2021 to a high of 422,457 in FY2024--a 545% increase in
four FYs. Over the same ten-year period, approval numbers also varied
but not as wildly as new receipt volumes; approvals reached a low of
5,793 and a high of 17,175, also in FY2021 and FY2024, respectively (an
increase of just under 200 percent). However, denials and referrals
followed a different pattern. Since 2015, denials and referrals reached
a high of 42,213 in FY2019 and a low of 5,709 in FY2024. Table 3
presents data applicable to Form I-589, Application for Asylum and for
Withholding of Removal (principals only), by FY, from FY2015-2025
(through May 22, 2025), applicable to denials/referrals with a
previously approved (c)(8) EAD.

[[Page 8640]]

[GRAPHIC] [TIFF OMITTED] TP23FE26.018

When cross-referencing all asylum application denials with asylum
application denials where the alien had a previously approved
application for employment authorization in the (c)(8) category, a
notable pattern emerges. In FY2015, USCIS issued 15,515 denials or
referrals to asylum applicants, but only 4,578 (29.5%) had one or more
previously approved (c)(8) EAD.\122\ By FY2023, USCIS issued 5,963
denials or referrals to asylum applicants, but 4,351 (73%) had one or
more previously approved (c)(8) EAD.\123\ In FY2024, USCIS issued 5,709
denials or referrals to asylum applicants, but 5,087 (89%) had one or
more previously approved (c)(8) EAD.\124\ In FY2025 (through May 22,
2025), USCIS issued 11,872 denials or referrals to asylum applicants,
and 9,475 (79.8%) had one or more previously approved (c)(8) EAD.\125\
These data are significant.
---------------------------------------------------------------------------

\122\ USCIS OPQ DATA, ``Form I-589, Application for Asylum and
for Withholding of Removal (Principals only), Pending/Denial/
Referral with a previously approved I-765(c)(8) by FY for FY2015-
2025 (through May 22, 2025)''.
\123\ Id.
\124\ Id.
\125\ Id.
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At the simplest level, if there were no asylum backlog and each
asylum application received was adjudicated within 180 days, none of
those aliens whose asylum applications were denied would have been
granted an employment authorization. Looking at the percentages, it is
clear there is an increasing correlation between asylum denials and
previously approved (c)(8) EADs. Not only do these data serve as
evidence that current asylum processing is not functioning properly,
but it is also evidence that the processing is worsening. The INS's
original intention of discouraging aliens from filing meritless asylum
claims cannot be fulfilled given the backlog volume is at an all-time
high and nearly 90% of asylum denials last FY had a previously approved
(c)(8) EAD. USCIS notes that it is not necessarily assigning, and does
not need to assign, any fraudulent or bad intent to this population.
These are simply cases where the alien was ultimately found ineligible
for asylum, but, due to current agency regulations, policies, and
processes, was able to derive employment authorization despite asylum
ineligibility.
Despite the relative lack in changes for the adjudication of EADs
for aliens with pending asylum applications since the 1994 regulatory
reform, the number of asylum applications, and with it the number of
requests for employment authorization have increased exponentially,
fueling a massive asylum backlog. In FY 1994, the year the then-INS
promulgated the requirement that employment authorizations for aliens
with pending asylum applications be adjudicated within 30 days, the INS
received 144,577 applications for affirmative asylum.\126\ In FY 1996,
the year IIRIRA provided that, in the absence of exceptional
circumstances, final administrative adjudications of asylum
applications ``shall'' be completed within 180 days after the date
applications are filed,\127\ the INS received 107,130 applications for
affirmative asylum and had a backlog of 453,580 pending at the end of
the fiscal year.\128\ In FY 2024, USCIS received more than 419,000
applications for affirmative asylum, and adjudicated or closed more
than 126,000 affirmative asylum applications.\129\ At the end of FY
2024, the number of affirmative asylum applications pending with USCIS
grew to more than 1.35 million.\130\
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\126\ INS, DOJ, ``1994 Statistical Yearbook of the Immigration
and Naturalization Service'' (Feb. 1996), p. 83.
\127\ IIRIRA sec. 604, Public Law 104-208, 110 Stat. 3009, 3009-
694, codified at INA sec. 208(d)(5)(A)(iii), 8 U.S.C.
1158(d)(5)(A)(iii).
\128\ INS, DOJ, ``1996 Statistical Yearbook of the Immigration
and Naturalization Service'' (Oct. 1997), p. 90-91.
\129\ USCIS, ``All USCIS Application Petition Form Types (Fiscal
Year 2024, Quarter 4)'' (Dec. 18, 2024), https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q4.xlsx.
\130\ USCIS, ``All USCIS Application Petition Form Types (Fiscal
Year 2024, Quarter 4)'' (Dec. 18, 2024), https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q4.xlsx.
---------------------------------------------------------------------------

As asylum caseloads both before USCIS and DOJ's EOIR have grown, so
have employment authorization applications for aliens with pending
asylum applications. For example, in FY 2013, USCIS received 41,000
initial (c)(8) EAD applications from aliens with pending asylum
applications before

[[Page 8641]]

USCIS or EOIR; in the month of January 2025 alone, USCIS received
approximately 152,000 initial (c)(8) EAD applications for the same
population, in addition to nearly 60,000 renewal (c)(8) EAD
applications from aliens with pending asylum applications.\131\ The
large influx has consumed an extraordinary amount of USCIS resources.
---------------------------------------------------------------------------

\131\ USCIS, ``Form I-765, Application for Employment
Authorization, Eligibility Category and Filing Type (Fiscal Year
2025, Quarter 1)'' (April 30, 2025), https://www.uscis.gov/sites/default/files/document/data/i765_application_for_employment_fy2025_q1.xlsx.
---------------------------------------------------------------------------

As a result of all these factors, DHS finds itself in a
comparatively worse position to that of the INS in the early 1990s.
Asylum application filings, and with them the asylum backlog, have
grown to an unmanageable size. The asylum program continues to attract
frivolous, fraudulent, or otherwise meritless claims, likely
incentivized by the decades long processing times and access to
employment authorization. Many modern asylum applicants are fleeing
generalized violence and poor economic conditions in their home
countries, but these, in and of themselves, are not grounds for
asylum.\132\
---------------------------------------------------------------------------

\132\ See Congressional Research Service, ``Central American
Migration: Root Causes and U.S. Policy'' (Oct. 30, 2024), https://www.congress.gov/crs-product/IF11151; Congressional Research
Service, ``Asylum Eligibility for Applicants Fleeing Gang and
Domestic Violence: Recent Developments'' (Aug. 6, 2021), https://www.congress.gov/crs_external_products/LSB/PDF/LSB10617/LSB10617.3.pdf, discussing whether fleeing generalized violence or
domestic violence is a legitimate basis for asylum relief; Council
on Foreign Relations, ``Why Six Countries Account for Most Migrants
at the U.S.-Mexico Border'' (July 9, 2024), https://www.cfr.org/article/why-six-countries-account-most-migrants-us-mexico-border;
Council on Foreign Relations, ``Central America's Turbulent Northern
Triangle'' (July 12, 2023), https://www.cfr.org/backgrounder/central-americas-turbulent-northern-triangle; United Nations High
Commissioner for Refugees, ``El Salvador, Guatemala and Honduras:
Global Appeal 2025 Situation Overview'' (2025), https://reporting.unhcr.org/sites/default/files/2024-11/El%20Salvador%2C%20Guatemala%20and%20Honduras%20Situation%20Overview.pdf.
---------------------------------------------------------------------------

Protecting Americans Workers
In addition to all the factors discussed at length above, such as
overall asylum program integrity and specifically disincentivizing
frivolous, fraudulent, and meritless asylum applications, DHS
recognizes the importance of U.S workers as well. DHS notes that when
adjudicating certain employment-based visas, statutory authorities
mandate that such alien workers not displace qualified, available
American workers who are capable of performing such services or labor,
and similarly that such alien employment not adversely affect the wages
and working conditions of workers in the United States.\133\ DHS is in
no way equating asylum applicants with temporary nonagricultural
workers; rather DHS merely notes the mandatory consideration for
American workers in certain visa programs. DHS recognizes there is
historical precedent to consider American workers when DHS exercises
discretion to determine the availability and scope of employment
authorization for aliens.
---------------------------------------------------------------------------

\133\ See INA sec. 101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b); see also 8 CFR 214.2(h)(6)(i).
---------------------------------------------------------------------------

For example, in 1974 the former INS Commissioner Leonard F.
Chapman, Jr. announced a significant change to the summer program
policy for foreign students.\134\ Under the new policy, foreign
students seeking summer employment had to apply and obtain permission
from the INS.\135\ In changing the long-standing student employment
policy, the INS recognized the foreign policy benefits for young aliens
studying in the United States, but determined that the protection of
job opportunities for American workers should be the ultimate
consideration.\136\ The following year, INS General Counsel Sam Bernsen
gave a presentation detailing this INS' decision further.\137\ He
recognized that F-1 student work was not banned by statute, but was
concerned that ``a United States citizen or a United States lawful
permanent resident [could] be fired from a campus job to provide
employment for a nonimmigrant student.'' \138 \Continuing, Bernsen
stated ``INA had to weigh the adverse effect on foreign relations
against the adverse effect on the labor market.'' \139\ This ultimately
meant students who wanted employment had to apply before the INS and
establish eligibility under the prescribed rules.
---------------------------------------------------------------------------

\134\ See American Council for Nationalities Service,
Interpreter Releases, ``Foreign Student Work Policy Changed'' (May
14, 1974) Vol. 51, No. 16.
\135\ Id.
\136\ Id.
\137\ See Sam Bernsen, General Counsel, INS, DOJ, ``Leave to
Labor'' (September 2, 1975), American Counsel for Nationalities
Service Interpreter Releases, Vol. 52, No 35.
\138\ See Sam Bernsen, General Counsel, INS, DOJ, ``Leave to
Labor'' (September 2, 1975), American Counsel for Nationalities
Service Interpreter Releases, Vol. 52, No 35.
\139\ Id.
---------------------------------------------------------------------------

Unfortunately, Department of State (DOS) data on F-1 student visa
admissions only goes back to 1987,\140\ so official data for 1974 F-1
visa admissions is not available from DOS. However, that data is
available from the Government Accountability Office (GAO).\141\
According to the GAO, there were approximately 154,580 F-1 students in
1974.\142\ If every single one of the F-1 students displaced an
American worker that is a relatively small number compared to DHS's
current situation with (c)(8) EAD applications. USCIS received 422,457
Form I-589s and 1.2 million applications for initial (c)(8) EADS in FY
2024.\143\ DHS notes that, if INS was justified in terminating a form
of work authorization in 1974 in order to prevent the possible
displacement of approximately 150,000 American workers, DHS would
similarly be justified today to consider the potential impact on up to
1.2 million American workers when reviewing a discretionary EAD
category like the (c)(8)s.
---------------------------------------------------------------------------

\140\ See https://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/NIVClassIssuedDetailed/NIVClassIssued-DetailedFY1987-1991.pdf.
\141\ See GAO, ``Controls Over Foreign Students in U.S.
Postsecondary Institutions Are Still Ineffective'' (Mar. 10, 1983),
https://www.gao.gov/products/hrd-83-27.
\142\ Id.
\143\ USCIS, ``All USCIS Application Petition Form Types (Fiscal
Year 2024, Quarter 4)'' (Dec. 18, 2024), https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q4.xlsx.
---------------------------------------------------------------------------

Building an Efficient Asylum System
As the INS did in 1994, DHS is implementing limitations on the
availability of employment authorization and more stringent
requirements for eligibility for employment authorization, in order to
protect U.S. national security and public safety, better manage the
asylum caseload, and disincentivize aliens who do not have meritorious
asylum claims from exploiting the asylum program to seek economic
opportunity in the United States. 59 FR 14779 (Mar. 30, 1994); 59 FR
62284 (Dec. 5, 1994).
As it currently functions, the asylum system is overwhelmed,
unresponsive, and vulnerable to abuse. Congress gave the Executive
Branch the discretion to make employment authorization available to
asylum applicants by regulation.\144\ Employment authorization for
aliens seeking asylum is not an entitlement under statute. DHS believes
that this rule is key to disincentivizing aliens from using asylum
primarily as a path to seek employment authorization in the United
States and to ensuring more timely processing of asylum applications.
By allowing DHS to focus resources on reducing the asylum backlog,
ensuring that asylum applications are processed in a fair and timely
manner, and divorcing the filing of an asylum application with a near
automatic grant

[[Page 8642]]

of employment authorization, this regulation will help reverse the
course of an overwhelmed system that has invited abuse.
---------------------------------------------------------------------------

\144\ INA sec. 208(d)(2).
---------------------------------------------------------------------------

DHS is now focusing on this regulation after years of different
efforts to address the building backlog and significant program
integrity concerns within the asylum program. The number of asylum
officers USCIS employs increased from 349 in 2015 to 979 in 2025, but
the asylum backlog has increased exponentially in spite of this. In the
last decade, USCIS has built or expanded asylum offices in 11 cities to
provide dedicated workspaces to accommodate the rapid growth in
staffing.\145\ USCIS has also implemented a number of operational
changes designed to realize efficiency gains. These changes include
post-interview case processing goals, the development of new
technology, and the expansion of digitization to modernize case
management.\146\ Additionally, in 2024, USCIS first used innovative
technology to identify asylum applications filed by aliens in removal
proceedings and launched an automated process to administratively close
those cases, thereby using fewer asylum staffing resources to quickly
remove those cases from the pending caseload while permitting officers
to focus on other pending cases. Subsequently, USCIS expanded its
technological capabilities to start rejecting asylum applications filed
by online applicants in removal proceedings, consistent with existing
procedures to reject paper asylum applications filed by aliens in
removal proceedings.\147\ USCIS also used FY 2024 appropriated funds to
support technology initiatives to digitize existing paper-filed asylum
applications in the backlog, automate additional case processing steps,
improve interview scheduling, and automatically identify multiple
asylum applications filed by the same principal applicant using
different A-numbers, all of which supported backlog reduction and
decreased overall processing times.\148\
---------------------------------------------------------------------------

\145\ USCIS, DHS, ``Asylum Application Processing Fiscal Year
2023'' (Nov. 1, 2023), https://www.dhs.gov/sites/default/files/2024-01/2023_1101_uscis_asylum_application_processing_fy2023.pdf.
\146\ Id.
\147\ DHS Office of Inspector General, ``USCIS Faces Challenges
Meeting Statutory Timelines and Reducing Its Backlog of Affirmative
Asylum Claims'' (July 3, 2024), https://www.oig.dhs.gov/sites/default/files/assets/2024-07/OIG-24-36-Jul24.pdf.
\148\ Letter from Representative Ra[uacute]l M. Grijalva (July
11, 2024) and DHS response (Aug. 16, 2024), https://www.uscis.gov/sites/default/files/document/foia/AffirmativeAsylum-RepresentativeGrijalva.pdf.
---------------------------------------------------------------------------

Despite DHS's fervent efforts to address the backlog, the recent,
drastic increase in both affirmative and defensive asylum filings has
prevented the agency from seeing any gains. For example, from FY 2022
to FY 2023, the number of affirmative asylum filings nearly doubled
from 247,074 to 463,320 applications.\149\ The total number of
defensively filed asylum applications also nearly doubled from 2022 to
2023, from 260,830 to 488,620 applications.\150\ In July 2024, the DHS
Office of Inspector General found that more than 786,000 affirmative
asylum applications were pending more than 180 days.\151\ In addition,
a concurrent and massive increase in border encounters also contributed
to the growth of the backlog because USCIS has had to divert resources
and asylum officers from processing affirmative asylum backlog cases to
address the high volume of credible fear and reasonable fear cases
\152\ that require interviews in a very short period of time. In
periods of peak credible fear and reasonable fear volumes, all
available USCIS Asylum Division staff were temporarily assigned to
these caseloads, reducing the number of asylum officers available to
conduct affirmative asylum interviews.\153\ In 2023, USCIS also trained
more than 1,000 employees from across USCIS to assist with the credible
fear workload as needed.\154\ This diversion of resources to screening
interviews further prevented USCIS from making meaningful progress to
reduce or eliminate the affirmative asylum backlog. As affirmative
asylum cases slowly wind their way through the immigration system,
aliens continue to receive EADs, even though many or most will be found
ineligible for asylum.\155\
---------------------------------------------------------------------------

\149\ Noah Schofield and Amanda Yap, Office of Homeland Security
Statistics, ``Asylees: 2023'' (Oct. 2024), https://ohss.dhs.gov/sites/default/files/2024-10/2024_1002_ohss_asylees_fy2023.pdf.
\150\ Id.
\151\ Office of Inspector General, DHS, ``USCIS Faces Challenges
Meeting Statutory Timelines and Reducing Its Backlog of Affirmative
Asylum Claims'' (July 3, 2024), https://www.oig.dhs.gov/sites/default/files/assets/2024-07/OIG-24-36-Jul24.pdf.
\152 \ See 8 CFR 208.31, 8 CFR 235.3(b)(4). Any alien who
indicates a fear of persecution or torture, a fear of return, or an
intention to apply for asylum during the course of the expedited
removal process is referred to an asylum officer for an interview to
determine whether the alien has a credible fear of persecution or
torture in the country of return. Aliens with prior removal orders
for illegal entry or who are issued an administrative removal order
for having been convicted of an aggravated felony may be referred to
the asylum officer for a determination of whether the alien has a
reasonable fear of persecution or torture. These screening
interviews are required to be conducted by USCIS within a designated
timeframe.
\153\ See USCIS, DHS, ``Asylum Application Processing Fiscal
Year 2023 Report to Congress'' at 4, (Nov. 1, 2023), https://edit.dhs.gov/sites/default/files/2024-01/2023_1101_uscis_asylum_application_processing_fy2023.pdf.
\154\ See email entitled ``Message from the Director--USCIS to
Support Credible Fear Screening'', April 25, 2023, located in the
administrative record.
\155\ EOIR, Asylum Decisions (Apr.4, 2025), https://www.justice.gov/eoir/media/1344851/dl?inline.
---------------------------------------------------------------------------

Another consequence of the asylum backlog is that many aliens who
will ultimately be denied asylum are able to remain in the United
States and obtain employment authorization. As discussed above, DHS
believes that imposing stricter requirements for (c)(8) EAD eligibility
will disincentivize some economic migrants and others who would
ultimately not qualify for asylum from applying and possibly from
making the arduous journey to the United States. For example, in
addition to the current regulatory language that excludes an alien with
an aggravated felony conviction as described under INA 101(a)(43), DHS
proposes to codify in regulation that it will exclude from (c)(8) EAD
eligibility any alien where there is reason to believe that the alien
may be barred from a grant of asylum due to one of the criminal bars to
asylum under sections 208(b)(2)(A)(ii)-(iii). These are also grounds
for denial of the alien's underlying asylum application. See INA
208(b)(2) and 8 U.S.C. 1158(b)(2). This would be a sensible and logical
change. Further, the change would increase program integrity by
ensuring that an alien who is statutorily ineligible for asylum cannot
file a frivolous or meritless asylum application in order to receive a
(c)(8) EAD and take advantage of current USCIS processing backlogs to
obtain employment authorization. Rather, under these proposed changes,
aliens who are ineligible for asylum would likewise be ineligible for a
``pending asylum'' EAD. As detailed above, the 1994 INS's final
regulatory asylum reform made clear, ``[t]his rule will discourage
applicants from filing meritless claims solely as a means to obtain
employment authorization. . . . When the system is fully operational,
asylum officers are expected to grant or refer affirmative claims
within about 60 days. . . . All applicants could have work
authorization after 180 days, unless their claims have been denied by
an Immigration Judge.'' 59 FR at 62290-91.
This is a significant point that is frequently lost given the
current size of the asylum and asylum EAD backlogs: the INS designed
the current regulatory landscape to be a means of primarily
adjudicating the underlying asylum application. The intent was to give
INS--today USCIS--180 days to

[[Page 8643]]

adjudicate the underlying asylum application and, if that could not be
accomplished, then the alien was not harmed because they were eligible
for employment authorization after 180 days. USCIS aimed to adjudicate
referrals of asylum applications within 60 days from the date a
complete asylum application was filed with USCIS, which would then
leave 120 remaining days for EOIR to complete processing of the
referred asylum application.\156\ As designed, the alien's asylum
application would be approved and any pending or approved application
for employment authorization was rendered moot by the grant of asylum
or the alien's asylum application would be denied and any application
for employment authorization was denied since the alien's asylum
application was no longer pending--but one of those two outcomes was
supposed to be reached within 180 days of filing. At the time, the
application for employment authorization was an interim or ``bridge''
benefit only until the asylum application was adjudicated.
---------------------------------------------------------------------------

\156\ USCIS, Affirmative Asylum Procedures Manual (Feb. 2025),
sec. III.F.2.b., available at https://www.uscis.gov/sites/default/files/document/guides/AAPM.pdf; USCIS, USCIS Asylum Division
Quarterly Stakeholder Meeting (Feb. 2019), p. 2, available at
https://www.uscis.gov/sites/default/files/document/outreach-engagements/PED_StakeholderPrivateAgenda_02222019.pdf.
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Due to the size of the current affirmative asylum pending caseload,
adjudication of the asylum application within 180 days of filing in
accordance with INA 208(d)(5)(A)(iii) is extremely difficult. In
FY2022, FY2023, and FY2024, the average processing time for asylum
applications that received a final decision (approval, administrative
closure, or denial/referral) was 35.5 months, 25.0 months, and 22.8
months, respectively.\157\ The processing times far exceed the 180-day
statutory requirement, but are nevertheless trending the right
direction. However, DHS believes that the level of effort currently
going into asylum and related EAD adjudications is not sustainable,
which is one reason DHS needs these proposed regulatory changes. If
USCIS were no longer governed by the 30-day processing timeframe, it
would permit the agency to focus resources on the pending asylum
applications, which in and of itself would reduce (c)(8) EAD
application filings. These cases drain agency resources from other
adjudications. Regardless of the backlog, the age of cases, or any
asylum application processing changes, under 8 CFR 208.7(a)(1) USCIS is
currently still required to adjudicate pending asylum applications for
employment authorization within 30 days of filing. The changes proposed
in this rule, specifically the pausing of (c)(8) EAD application
acceptances and the 365-day wait to file an application for employment
authorization, would allow USCIS to focus more on the underlying asylum
applications--just as the INS attempted to do with the 1994 regulatory
reforms.
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\157\ USCIS OPQ DATA, ``I-589 Processing Time With and Without
Admin Closed by Fiscal Year (FY2022-2025) (May 27, 2025). DHS notes
these processing times are under LIFO processing so these are still
the ``newer'' cases being adjudicated. Further, these adjudications
are not reducing the overall size of the asylum backlog.
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Misalignment of Eligibility Requirements
Another problem unrelated to the pending affirmative asylum
caseload that further acts as an incentive for frivolous, fraudulent,
and meritless filings is the fact that eligibility requirements between
the asylum application and the pending asylum application for
employment authorization do not align. Currently, an asylum application
will be denied if the alien was a persecutor, convicted of a
particularly serious crime, committed a serious non-political crime
outside the United States, or is a danger to the security of the United
States, among other reasons. See INA 208(b)(2), 8 U.S.C. 1158(b)(2).
However, an alien applying for employment authorization based on a
pending asylum application is only ineligible based on an aggravated
felony conviction.\158\ See 8 CFR 208.7(a)(1). The disparity between
eligibility requirements for the asylum application and the (c)(8) EAD
renders aliens who under no set of circumstances could be approved for
asylum (e.g., persecutors, aliens convicted of particularly serious
crimes, etc.) eligible for employment authorization while waiting for
their asylum application to be denied. This, in turn, incentivizes more
aliens to file frivolous, fraudulent, or meritless asylum applications
since they will obtain employment authorization 180 days after filing
the asylum application--even if statutorily ineligible for asylum--and
the alien's asylum application will likely remain pending for years
given the asylum backlog. Previously, neither form had an associated
filing fee,\159\ so there was no downside to filing this way because,
even if USCIS denied the asylum application years later, the alien was
employment authorized during that time. DHS's proposed rulemaking
attempts to align the eligibility requirements and end the incentive to
abuse the asylum system. Under this proposal, aliens would still apply
for employment authorization but DHS would, as part of the screening
and vetting of the alien as part of the (c)(8) EAD adjudication,
essentially determine if the alien was statutorily or regulatorily
ineligible or barred from asylum approval and, if so, DHS would deny
the application for employment authorization.
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\158\ This is not the only grounds for denial, rather it renders
the alien ineligible. As stated above, the alien can be denied for
filing the application for employment authorization before 150 days
have passed since filing the asylum application. 8 CFR 208.7(a)(1).
\159\ See USCIS, ``G-1055, Fee Schedule,'' (Apr. 18, 2025),
https://www.uscis.gov/g-1055.
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The need to determine whether the alien applying for employment
authorization is also not ineligible for asylum justifies an additional
and related change being made in this rule as well, the mandatory
collection of biometrics for both initial and renewal (c)(8) EAD
applications and the requirement that applicants for an EAD submit all
records of charges, arrests, and convictions as part of their EAD
application. DHS would not be able to meaningfully screen and vet these
aliens in order to determine whether they are ineligible or barred from
asylum approval without biometrics and evidence of any criminal
history. DHS already requires biometrics from asylum applicants; for
the same reason DHS now proposes to collect biometrics on the pending
application for employment authorization. Requiring asylum applicants
submit biometrics and provide all records of charges, arrests, and
convictions as part of their EAD application helps ensure that DHS has
accurate and complete information before making a decision on the
employment authorization application.\160\ DHS is committed to
enforcing our immigration laws by securing our borders, disrupting
criminal organizations that bring people, drugs, and goods across the
border illegally, and reducing abuse of our processes and laws.
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\160\ USCIS criminal history record information requests to the
FBI are not always complete or up-to-date, depending on the
jurisdiction reporting the information. See generally National Crime
Prevention and Privacy Compact, 34 U.S.C. 40311-40316 (formerly
cited as 42 U.S.C. 14611-14616), including the definitions of
``party state'' and ``nonparty state'' found therein.
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DHS believes the provisions of this proposed rule will enable
meritorious applications to be granted sooner and meritless
applications to be referred or

[[Page 8644]]

denied sooner. DHS recognizes that these reforms will apply equally to
aliens with meritorious and meritless asylum claims and that either
population may experience some degree of economic hardship as a result
of heightened requirements for an EAD, the extended waiting period, and
the pauses in USCIS' acceptance of EAD applications from asylum
applicants. DHS also recognizes that some aliens whose asylum
applications would have been found meritorious--i.e., those who would
be able to show a well-founded fear of persecution in their country of
nationality (or last habitual residence) on account of a protected
ground--may abandon their applications or decide not to file
applications and forego the protection that asylum would provide
because they would not be able to support themselves while their asylum
application is adjudicated. DHS recognizes that extending the
processing time for employment authorization may also factor into a
potentially meritorious applicant's decision-making process before
applying for asylum. Due to this rule's proposed increased waiting
periods before an alien may receive employment authorization, there may
be aliens with potentially meritorious asylum claims who instead return
to a country where they may fear harm. DHS has seriously considered the
potential harm to this population and has determined that the benefits
of this rule outweigh these concerns: increasing program integrity,
focusing USCIS resources on the underlying asylum backlog, ensuring
aggravated felons and criminal aliens are not granted work
authorization, biometrically verifying the identity of all (c)(8) EAD
applicants and identifying any criminal history, if applicable, and
disincentivizing asylum as a means to file a frivolous, fraudulent, or
meritless application solely to obtain work authorization. Objectively
speaking, the asylum system is overwhelmed and in need of additional
reforms. The backlog of asylum cases weakens the integrity of the
system, allowing thousands of non-meritorious cases to languish and
obstructing the agency from addressing potential public safety and
national security concerns until years down the road when the cases are
finally adjudicated. The security of the United States and the
integrity of our immigration processes outweighs the potential harm to
a subset of the asylum applicant population. DHS has also considered
potential hardship caused by a lengthier wait before filing an
application for employment authorization or receiving employment
authorization, which may lead some aliens to attempt to work without
authorization. In order to minimize unauthorized employment, DHS has
instituted certain compliance measures through the Immigration Reform
and Control Act (IRCA), which requires employers to verify the identity
and employment eligibility of their employees and sets forth criminal
and civil sanctions for employment-related violations. See Public Law
99-603, 100 Stat. 3445 (1986). Additionally, section 274A(b) of the
INA, 8 U.S.C. 1324a(b), requires employers to verify the identity and
employment eligibility of all aliens hired in the United States. The
Employment Eligibility Verification form (Form I-9) is used by
employers to document this verification. Employers who fail to properly
complete Forms I-9 are subject to civil money penalties for paperwork
violations.\161\ This process serves to protect the public and aliens
who may attempt to work without authorization, which makes those aliens
vulnerable to exploitation by their employers. Aliens who still choose
to engage in unauthorized employment should be aware that this may
render them removable and ineligible for future benefits such as
adjustment of status.\162\ Finally, DHS acknowledges there may be
unknown impacts to the above populations, but DHS's responsibility to
safeguarding national security and public safety takes precedence and
justifies the approach proposed here.
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\161\ See INA sec. 274A(e)(5), 8 U.S.C. 1324a(e)(5).
\162\ See, e.g., INA sec. 237(a)(1)(C), 8 U.S.C. 1227(a)(1)(C);
8 CFR 214.1(e); INA sec. 274A, 8 U.S.C. 1324a.
---------------------------------------------------------------------------

DHS's ultimate goal is to strengthen the benefit integrity of the
asylum process and help ensure that the system is not being exploited.
DHS has determined that the current model for obtaining employment
authorization as an asylum applicant is no longer practicable, but also
inconsistent with the original intent of the asylum system. The intent
has always been that once an asylum claim is filed, a decision is made
in a timely manner so that there is no need for an employment
authorization document until the alien has received the benefit. DHS
has determined it is reasonable to require additional time and security
requirements on asylum applicants before they may apply for and receive
an EAD. The urgency to protect national security, public safety, and
maintain the integrity of the U.S. asylum and immigration system
outweighs the hardship that may be imposed by an additional waiting
period the meritorious asylum applicant population would experience
prior to receiving an EAD.
1. Other Regulatory Alternatives Considered
DHS considered several alternatives before deciding on the changes
ultimately proposed in this rule and also recently implemented new
filing fees that impact both asylum applications and pending asylum
application-based applications for employment authorization.
On July 22, 2025, USCIS published the H.R.-1 Federal Register
Notice to inform the public of a new series of fees for various
immigration-related forms established in the OBBBA.\163\ USCIS recently
implemented statutorily-mandated filing fees, including a $100 non-
waivable filing fee for the asylum application and $100 annual fee for
every year the applicant's asylum application is pending, as well as a
$550 non-waivable filing fee for the initial (c)(8) employment
authorization application.\164\ Per statute, 50 percent of the asylum
application fee is credited to DHS. None of the annual fee revenue is
credited to USCIS and 25-percent of the (c)(8) employment authorization
application fees are credited to USCIS.
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\163\ USCIS Immigration Fees Required by HR-1 Reconciliation
Bill, 90 FR 34511 (Jul. 22, 2025); see H.R.1--One Big Beautiful Bill
Act (OBBBA), Public Law 119-21, Title X, 139 Stat. 72. See USCIS
Immigration Fees Required by HR-1 Reconciliation Bill, 90 FR 34511
(July 22, 2025).
\164\ On Oct. 30, 2025, USCIS paused the implementation of the
annual asylum fee, as required by an order issued in in Asylum
Seeker Advocacy Project v. United States Citizenship and Immigration
Services, et al., SAG-25-03299 (D. Md.). That order does not affect
this rule. See Asylum Seekers Advocacy Project v. United States
Citizenship and Immigration Svcs., No. 25-03299 (D.Md. Oct. 30.
2025).
---------------------------------------------------------------------------

Historically, fee changes alone have not caused significant changes
in benefits requests, particularly when there are no alternatives.\165
\Therefore, DHS does not think that the new asylum application fees
from H.R.-1 alone are sufficient to dissuade the unsustainable volumes
of meritless asylum claims identified in this rule, although DHS
believes that it is possible that the fees may enhance the effects of
this proposed rule to deter frivolous, fraudulent, or otherwise
meritless asylum applications. Furthermore, as described in sections
III.B and III.C of this proposed rule, and discussed by recent USCIS
rulemakings 89 FR 101210 (Dec. 13, 2024), USCIS efforts to apply

[[Page 8645]]

additional resources toward faster processing of asylum and (c)(8)
employment authorization applications have consistently failed to match
rapid growth in volumes. DHS argues this is because the employment
authorization for longer durations caused by persistent asylum backlogs
have incentivized more asylum claims.\166\
---------------------------------------------------------------------------

\165\ See USCIS, FY 2022-2023 Fee Review Regulatory Impact
Analysis (RIA), https://www.regulations.gov/document/USCIS-2021-0010-0031; See also USCIS, FY 2022-2023 Fee Rule Price Elasticity
Regression Analysis, https://www.regulations.gov/document/USCIS-2021-0010-0033.
\166\ See USCIS, Increase of the Automatic Extension Period of
Employment Authorization Final Rule's Background section detailing
efforts to address EAD backlogs over the last 5 years. Section B.4
acknowledges asylum backlogs grew in FY23 despite USCIS's best
efforts, and that this further contributed to an unsustainable
quantity of (c)(8) EAD renewals in FY24. https://www.federalregister.gov/documents/2024/12/13/2024-28584/increase-of-the-automatic-extension-period-of-employment-authorization-and-documentation-for-certain.
---------------------------------------------------------------------------

One alternative DHS considered and evaluated was the possibility of
re-publishing the elimination of the 30-day EAD processing timeframe
rule (``Timeline Repeal Rule'') from 2020, but with updated filing
data, more recent economic analysis, and additional justification for
the proposed changes. DHS recognizes that any such changes are within
the Secretary's authority under INA 274A(h)(3)(B) (8 U.S.C.
1324a(h)(3)(B)), INA 208(d)(1) and (d)(5)(B) (8 U.S.C. 1158(d)(1) and
(d)(5)(B)), and INA 208(d)(2) (8 U.S.C. 1158(d)(2)). However, DHS is
mindful of the CASA de Maryland, Inc. v. Wolf holding that determined
the elimination of the 30-day Asylum EAD clock (``Timeline Repeal
Rule'') was arbitrary and capricious for multiple different reasons.
That court found that USCIS' rationale for elimination of the 30-day
processing timeframe belied the evidence in the record and USCIS'
responses to public comments were conclusory and reflected that the
agency did not consider important policy alternatives.\167\
Specifically, the court was not convinced that USCIS considered
imposing a longer processing timeframe instead of removing the
timeframe altogether.\168\ Despite the fact that DHS still believes
there should be no processing timeframe on (c)(8) EADs--just as there
are currently no processing timeframes on any other EAD category--DHS
was uncertain if a second proposed outright elimination of the (c)(8)
EAD processing timeframe would be successful even with updated filing
data, more recent economic analysis, additional consideration of
alternatives, and additional justifications. A significant amount of
work goes into regulatory changes, and DHS would rather not risk
another years long effort merely to be subject to adverse court action
and, in the end, still be required to adjudicate pending asylum
applications and associated employment authorization applications under
the current, and flawed, regulatory authorities and timeframes.
---------------------------------------------------------------------------

\167\ See CASA de Maryland, Inc. v. Wolf, 486 F.Supp.3d 928,
961-963 (D. Md. 2020).
\168\ See id.
---------------------------------------------------------------------------

A second alternative DHS considered and evaluated was extending the
waiting period for filing an application for employment authorization
based on a pending asylum application from the current 150 days to a
significantly longer period, something closer to four or five years.
Extending this waiting period would be well within the Secretary's
authority under INA 274A(h)(3)(B) (8 U.S.C. 1324a(h)(3)(B)), INA
208(d)(1) and (d)(5)(B) (8 U.S.C. 1158(d)(1) and (d)(5)(B)), and INA
208(d)(2) (8 U.S.C. 1158(d)(2)), which clearly recognize the
discretionary authority to extend employment authorization to aliens,
the authority to establish regulations concerning the procedures and
conditions on asylum applications, and the discretion to grant
employment authorization to aliens applying for asylum if 180 days have
passed since filing the application for asylum. The benefits of such an
extension are that it would essentially remove all screening and
vetting roadblocks discussed above (e.g., ASC appointment delays, 60
day-pause for referrals to ICE, etc.) and it would also remove any
incentive for aliens to file frivolous, fraudulent, or otherwise
meritless asylum applications in order to receive employment
authorization. Under such a proposal, very few aliens would actually
wait five years for their initial employment authorization because
asylum cases are currently worked under LIFO processing, so the
overwhelming majority of recent asylum applicants would receive a final
adjudication in less than five years. Even without the proposed
regulatory changes DHS needs to improve operations as well as screening
and vetting, in FY2022, FY2023, and FY2024, the average processing time
for asylum applications that received a final decision (approval,
administrative closure, denial/referral) was 35.5 months, 25.0 months,
and 22.8 months, respectively.\169\ While the processing times far
exceed the 180-day target provided in INA 208(d)(5)(A)(iii), they are
trending in the right direction and are less than the four or five year
alternative proposal considered.
---------------------------------------------------------------------------

\169\ USCIS OPQ DATA, ``I-589 Processing Time With and Without
Admin Closed by Fiscal Year (FY2022-2025) (May 27, 2025).
---------------------------------------------------------------------------

DHS ultimately decided not to extend the 150-day EAD clock this far
for several reasons. While a four to five year waiting period would be
a strong disincentive for frivolous, fraudulent, or meritless
applications, this would likely lead to strong opposition from
immigration advocates and asylum applicants who may view this fixed and
lengthy change in the waiting period as unduly harsh. While the
proposed pause and restart method will likely lead to a years-long wait
as well, that pause can be lifted, unlike the change proposed in this
second alternative. In the end, DHS determined that while a very strong
disincentive for meritless filings, there would be numerous and strong
public comments that did not support such a change, and the
justification for such an extension of that duration may not be
supported by data.
Another alternative considered by DHS was ending employment
authorization for pending asylum applicants altogether, in other words,
terminating the (c)(8) EAD category. Eliminating the (c)(8) EAD
category would be well within the Secretary's authority under INA
274A(h)(3)(B) (8 U.S.C. 1324a(h)(3)(B)), INA 208(d)(1) and (d)(5)(B) (8
U.S.C. 1158(d)(1) and (d)(5)(B)), and INA 208(d)(2) (8 U.S.C.
1158(d)(2)), which clearly recognize the discretionary authority to
extend employment authorization to aliens, the authority to establish
regulations concerning the procedures and conditions on asylum
applications, and the discretion to grant employment authorization to
aliens applying for asylum if 180 days have passed since filing the
application for asylum. An alien with a pending asylum application is
not entitled to employment authorization by statute, but Congress
granted the Secretary discretion to authorize employment, through
regulations, for these aliens while the asylum application is pending
adjudication. See INA 208(d)(2), 8 U.S.C. 1158(d)(2). This alternative
would obviate the need to screen and vet because there would be no
application for employment authorization submitted by the alien. This
alternative would really be the strongest disincentive possible for
filing frivolous, fraudulent, or meritless asylum filings, not by
adding a delay but by completely eliminating temporary employment
authorization as an incentive for filing an asylum application. This
option would eliminate any benefit to having a pending, but meritless
asylum application in the backlog for years.

[[Page 8646]]

Under such a proposal, with no (c)(8) EAD to apply for, aliens with
pending asylum applications would not be employment authorized until
USCIS approved the underlying asylum application.
DHS ultimately decided not to pursue such an alternative at this
time. First, DHS has already established that the primary problem is
the processing of the volume of cases in the backlog. Second, because
employment authorization for pending asylum applicants has been
available for decades, since prior to the INS's 1994 asylum reform
rulemakings, it is not clear at this time whether data exists to
support such a change. Moreover, DHS was concerned with the anticipated
public comments that did not support such a change. Additionally, DHS
believes that the proposed provision of this rule tethering employment
authorization to asylum processing times by pausing the acceptance of
initial (c)(8) EADs if average asylum processing rises above 180 days
for 90 consecutive days would achieve the same positive impact that
terminating the (c)(8) EAD category altogether would achieve but
through less severe means.
Should this rule prove ineffective or be enjoined, DHS will likely
re-evaluate one or more of these alternative options for future asylum
applications and their associated employment authorization applications
given the ongoing incentive they represent for illegal entry to the
United States and abuse of the asylum system to the detriment of
meritorious asylum seekers.

D. Background

1. 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. INA sec. 208(b)(1), 8 U.S.C. 1158(b)(1) (providing that the
Attorney General and Secretary ``may'' grant asylum to refugees); INA
sec. 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A) (defining ``refugee''). The
INA bars certain aliens from obtaining asylum, including aliens who are
persecutors, have been convicted of a particularly serious crime (which
includes aggravated felonies), have committed serious nonpolitical
crimes outside of the United States, are a danger to the security of
the United States, have engaged in certain terrorism-related activities
or are members of terrorist organizations, or were firmly resettled in
a third country.\170\
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\170\ INA sec. 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A).
---------------------------------------------------------------------------

The INA also bars certain aliens from applying for asylum.\171\
Aliens generally must apply for asylum within 1 year from the date of
their last arrival in the United States.\172 \ An alien who files for
asylum after the 1-year filing deadline is not eligible to apply for
asylum unless the alien demonstrates that changed circumstances
materially affected the alien's eligibility for asylum or extraordinary
circumstances delayed filing during the 1-year period, and that the
application was filed within a reasonable period of time given the
changed or extraordinary circumstances.\173\ Even if an alien meets all
the criteria for asylum, including establishing past persecution or a
well-founded fear of future persecution and any exceptions to late
filing, the Secretary or Attorney General can still deny asylum as a
matter of discretion.\174\
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\171\ INA sec. 208(a)(2), 8 U.S.C. 1158(a)(2).
\172\ INA sec. 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B). The 1-year
filing deadline does not apply to an alien who is a UAC, as defined
in 6 U.S.C. 279(g). INA sec. 208(a)(2)(E), 8 U.S.C. 1158(a)(2)(E).
\173\ INA sec. 208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D).
\174\ See INA secs. 208(b)(1) and 240(c)(4)(A)(ii); 8 U.S.C.
1158(b)(1) and 1229a(c)(4)(A)(ii).
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Aliens who are granted asylum cannot be removed or returned to
their country of nationality or last habitual residence, are employment
authorized incident to their asylee status, and may be permitted to
travel outside of the United States with prior consent from the
Secretary.\175\ 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.\176\
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\175\ INA sec. 208(c)(1), 8 U.S.C. 1158(c)(1).
\176\ INA sec. 208(c)(2), 8 U.S.C. 1158(c)(2).
---------------------------------------------------------------------------

Aliens may include their spouse and children who are physically
present in the United States as dependents on their asylum application
at the time they file or at any time until a final decision is made on
the application.\177\ The alien and their dependents are considered
asylum applicants, and each applicant may individually file an
application for a (c)(8) EAD.
---------------------------------------------------------------------------

\177\ INA sec. 208(b)(3). See also USCIS, ``Asylum,'' https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum (last updated
Jan. 24, 2025).
---------------------------------------------------------------------------

2. Affirmative vs. Defensive Filings
To request asylum, an alien must file Form I-589, Application for
Asylum and for Withholding of Removal, with either USCIS or the
immigration court (EOIR). Asylum applications are characterized as
``affirmative'' or ``defensive'' based on which agency has jurisdiction
over the alien's case. Generally, if an alien is physically present in
the United States, 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 Immigration Judge (IJ).\178\ These applications are known as
``defensive'' filings and include aliens the USCIS asylum officer
refers to the IJ for de novo review of their asylum claim.\179\
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\178\ Where an asylum application is filed by a UAC, USCIS has
initial jurisdiction over that application, even if the alien 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, sec. 235(d)(7), 122 Stat.
5044, 5081.
\179\ See 8 CFR 208.14(c).
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USCIS is responsible for initial adjudication of asylum
applications filed by UACs. This is because an asylum application filed
by a UAC must be processed according to requirements established in the
TVPRA, Public Law 110-457, 122 Stat. 5044, and the settlement agreement
in J.O.P. v. U.S. Dept of Homeland Security, 8:19-cv-01944 (D. Md.)
(approved Nov. 25, 2024) (J.O.P. Settlement Agreement). The provisions
of the TVPRA that apply to UACs took effect on March 23, 2009 and
provide USCIS with initial jurisdiction over all asylum applications
filed by UACs. Thus, even UACs who have been issued a Notice to Appear
in immigration court can have their application for asylum heard by
USCIS if they were UACs on the date they first filed for asylum. The
TVPRA also provides an opportunity for UACs, who did not previously
file for asylum with USCIS and who had a pending claim in immigration
court, on appeal to the Board of Immigration Appeals, or in federal
court, to have their asylum claim heard and adjudicated by a USCIS
Asylum Officer in a non-adversarial setting.\180\ Furthermore, under
the terms of the J.O.P. Settlement Agreement, USCIS will not rely on
any determination by DOJ that an alien is not a UAC.\181\ Rather, USCIS
exercises initial jurisdiction over the adjudication of the UAC's
asylum application and renders its own jurisdictional
determination.\182\ Therefore, if a UAC's

[[Page 8647]]

pending asylum application remains pending before USCIS, his or her
(c)(8) EAD will not automatically terminate even if his or her asylum
application was denied by an IJ, BIA, or a Federal court.
---------------------------------------------------------------------------

\180\ William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008 (TVPRA), Public Law 110-457 (Section 235
(d)(7)).
\181\ J.O.P. v. U.S. Dept of Homeland Security, 8:19-cv-01944,
Part III.D. (D. Md.) (approved Nov. 25, 2024), https://www.ice.gov/doclib/legalNotice/jopSettlementAgreement.pdf.
\182\ J.O.P. v. U.S. Dept of Homeland Security, 8:19-cv-01944,
Part III.C.1. (D. Md.) (approved Nov. 25, 2024), https://www.ice.gov/doclib/legalNotice/jopSettlementAgreement.pdf.
---------------------------------------------------------------------------

Aliens who present themselves at a U.S. port of entry (air, sea, or
land) are generally deemed applicants for admission.\183\ INA sec.
235(a)(1), 8 U.S.C. 1225(a)(1). If an immigration officer determines
that an alien is inadmissible under section 212(a)(6)(C) or 212(a)(7)
of the Act, 8 U.S.C. 1182(a)(6)(C) or 1182(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). Expedited removal may also be applied to certain other
aliens who have not been admitted or paroled into the United States and
who cannot show that they have been continuously physically present in
the United States for the two years prior to the date of determination
of inadmissibility. INA sec. 235(b)(1)(A)(iii), 8 U.S.C.
1225(b)(1)(A)(iii). Aliens in expedited removal proceedings who
indicate an intention to apply for asylum, express a fear of
persecution or torture, or a fear of return to their home country are
referred to an asylum officer to determine whether the alien has a
credible fear of persecution or torture.\184\ INA sec. 235(b)(1), 8
U.S.C. 1225(b)(1); 8 CFR 208.30(b); 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 the application for asylum.'' INA sec.
235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii).
---------------------------------------------------------------------------

\183\ 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 alien for admission (e.g., abandoned residence,
continuous absence of 180 days, illegal activity after departure
from the United States).
\184\ Except for certain aliens who entered on or after January
20, 2025, who are restricted from invoking provisions of the INA
that permit their continued presence in the United States, including
but not limited to section 208 of the INA, 8 U.S.C. 1158.
---------------------------------------------------------------------------

Asylum applications based initially on a positive credible fear
determination are under the jurisdiction of EOIR once a Notice to
Appear (NTA) is filed with the court and are considered ``defensively
filed'' applications. Similarly, if an alien has a positive credible
fear determination, but is released from detention by U.S. Immigration
and Customs Enforcement (ICE), the alien is still considered to be
under EOIR jurisdiction once the NTA is filed and must file the
application for asylum with the court.
3. Employment Authorization for Asylum Applicants
An alien may be authorized for employment in the United States
based on the alien's immigration status or other conditions, as
established by statute or by regulation. See 8 CFR 274a.12. An asylum
applicant is not entitled to employment authorization by statute, but
Congress granted the Secretary discretion to authorize employment,
through regulations, for these aliens while the asylum application is
pending adjudication. See INA sec. 208(d)(2), 8 U.S.C. 1158(d)(2).
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(a). The
regulations at 8 CFR 208.7 and 274a.12(c)(8) govern employment
authorization for asylum applicants.
a. 180-Day Asylum EAD Clock
Under the current statute and regulations, the Secretary cannot
grant employment authorization to an asylum applicant until 180 days
after the filing of the asylum application. INA sec. 208(d)(2), 8
U.S.C. 1158(d)(2), 8 CFR 208.7(a)(1). This 180-day period is commonly
called the ``180-day Asylum EAD Clock.'' \185\ The 180-day Asylum EAD
Clock begins to run after USCIS or EOIR, as applicable, accepts the
asylum application for processing. 8 CFR 208.7(a)(1). Existing
regulations provide that USCIS or EOIR should return an incomplete
application to the alien within 30 days of receipt of the application,
but if USCIS or EOIR has not returned the incomplete asylum application
within that time, the application is automatically deemed complete. 8
CFR 208.3(c), 1208.3(c)(3) (as effective).\186\ Once the asylum
application is accepted, the alien must wait 150 days before they may
file the application for employment authorization. 8 CFR 208.7(a)(1).
USCIS has 30 days from the filing date of the EAD application to
adjudicate the application. Id. The 180-day Asylum EAD Clock therefore
includes the 150-day waiting period for filing the (c)(8) EAD
application and the additional 30-day period that USCIS has to
adjudicate the EAD application.
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\185\ USCIS, ``The 180-Day Asylum EAD Clock Notice,'' https://www.uscis.gov/sites/default/files/document/notices/Applicant-Caused-Delays-in-Adjudications-of-Asylum-Applications-and-Impact-on-Employment-Authorization.pdf (last updated Mar. 2025).
\186\ Paragraph (c)(3) of 8 CFR 1208.3 was amended by the rule
Procedures for Asylum and Withholding of Removal, 85 FR 81698 (Dec.
16, 2020), which was preliminarily enjoined and had its effective
date stayed. See Nat'l Immigrant Justice Ctr. v. Exec. Office for
Immigration Review, No. 21-56 (RBW) (D.D.C. Jan. 14, 2021). Thus,
the currently operative version is the version in effect on January
1, 2021, before the rule took effect. EOIR subsequently amended
paragraph (c)(3) in a rule that remains operative--Procedures for
Credible Fear Screening and Consideration of Asylum, Withholding of
Removal, and CAT Protection Claims by Asylum Officers, 87 FR 18078
(Mar. 29, 2022)--but that amendment does not change the paragraph's
meaning.
---------------------------------------------------------------------------

Delays requested or caused by the alien stop the 180-day Asylum EAD
Clock, and it does not run again until the alien cures the delay or
until the next scheduled case event, such as a rescheduled interview or
a continued hearing. 8 CFR 208.7(a)(2). For example, if an alien fails
to appear for a required biometrics appointment on their asylum
application, the 180-day Asylum EAD Clock will stop and not recommence
until the alien appears for his or her biometrics appointment. Id.
Similarly, if an alien asks to amend or supplement his or her asylum
application, fails to provide a competent interpreter at the asylum
interview, or reschedules the asylum interview for a later date, all of
these actions will stop the 180-day Asylum EAD Clock, and the clock
will not restart until the required action is completed.\187\ 8 CFR
208.7(a)(2). USCIS will deny an EAD application if the asylum
application is still subject to an unresolved alien-caused delay that
prevents the alien from accumulating 180 days at the time USCIS
adjudicates the initial (c)(8) EAD application.\188\ As a result, some
asylum applicants may wait longer than 180 days before they can be
granted employment authorization.
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\187\ See ``The 180-Day Asylum EAD Clock Notice'' for additional
examples of actions that can affect the 180-day Asylum EAD Clock.
\188\ See, USCIS, ``The 180-Day Asylum EAD Clock Notice,''
https://www.uscis.gov/sites/default/files/document/notices/Applicant-Caused-Delays-in-Adjudications-of-Asylum-Applications-and-Impact-on-Employment-Authorization.pdf (last updated Mar. 2025).
---------------------------------------------------------------------------

b. 30-Day Processing Timeframe
Under current regulations at 8 CFR 208.7(a)(1), USCIS must
adjudicate initial employment authorization applications under the
(c)(8) category within 30 days of when the alien files the Form I-
765.\189\ The 30-day

[[Page 8648]]

processing timeframe in 8 CFR 208.7(a)(1) was established more than 25
years ago, when the former INS adjudicated EAD applications at local
INS offices, but EAD applications are now adjudicated at USCIS Service
Centers. As a result of numerous factors, including a massive growth in
EAD application volume, the need for ASC appointment scheduling,\190\
the identification of more national security and public safety
concerns, and an increase in the level and complexity of fraud
concerns, USCIS was unable to match the pace of adjudications to the
volume of receipts. As result, 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 processing timeframe of 8 CFR
208.7(a)(1).\191\ On July 26, 2018, the court enjoined USCIS from
further failing to adhere to the 30-day processing timeframe for
adjudicating EAD applications. As of March 2025, USCIS completed 86.4
percent of initial (c)(8) EAD applications within 30 days and completed
98.3 percent of initial (c)(8) applications within 60 days. However,
compliance with the court order places significant strain on already
limited agency resources, especially considering that initial (c)(8)
EAD applications (except those filed under the special ABC procedures)
are free of cost, and USCIS will not be able to continue to sustain
this burden in the long-term without adding additional agency resources
or negatively impacting processing times for other applications,
petitions, and benefit requests, including other EAD categories. Full-
time equivalent officer hours allocated to initial (c)(8) EAD
applications have increased from approximately 50 to a high-water mark
of over 800 in March of 2025 in order to keep pace with the drastic
increase in initial (c)(8) EAD application receipts. Given that there
was previously no fee for initial (c)(8) EAD applications (except those
filed under the special ABC procedures), the costs of intake,
adjudication, and customer service and other support functions were
historically borne by other benefit requestors who pay fees.
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\189\ The regulations at 8 CFR 208.7(a)(1) currently provide
that if the asylum application is not denied, USCIS will have 30
days from the date of filing of the request for employment
authorization to grant or deny the employment authorization request.
Certain events may suspend or restart the 30-day adjudication
period. For instance, the time between the issuance of a request for
evidence and the receipt of the response, or a delay requested or
caused by the alien, is not counted as part of the 30-day period. 8
CFR 208.7(a)(2).
\190\ At the time the INS published the current 30-day Asylum
EAD clock regulation, Application Support Centers (ASCs) did not
exist. All adjudications were essentially 30-45 days quicker prior
to the statutory creation of the ASCs. See Section III.C., above.
\191\ The court in Rosario also sought to compel USCIS to comply
with the 90-day rule for (c)(8) renewals based on the EAD
adjudicative timeframe in 8 CFR 274a.13(d). USCIS' failure to comply
with either the 30-day timeframe for initial (c)(8) EAD applications
or the 90-day timeframe for (c)(8) renewals meant USCIS should have
issued interim employment authorization under (then current) 8 CFR
274a.13(d) (2015).
---------------------------------------------------------------------------

c. Impact of Denial of the Asylum Application on Employment
Authorization
Denial of the asylum application impacts the alien's ability to
apply for and retain employment authorization in different ways,
depending on when and where the denial occurred.
If the asylum application is denied by an asylum officer or IJ
within the 150-day waiting period after applying for asylum, the alien
may not apply for employment authorization. 8 CFR 208.7(a)(1). If the
application for employment authorization is filed after the 150-day
waiting period and the asylum application is denied prior to
adjudication of the application for employment authorization,
employment authorization will be denied. Id.
If the alien applies for and is granted an EAD based on a pending
affirmative asylum application and the asylum application is denied by
the asylum officer, the EAD will either terminate on its expiration
date or 60 days after the denial of the asylum application, whichever
is later. 8 CFR 208.7(b)(1). If the alien receives an EAD and the
asylum application is later referred by USCIS to EOIR, employment
authorization will remain valid through the expiration date on the EAD.
8 CFR 208.7(b)(2).
If the IJ, BIA, or Federal court denies the asylum application and
the alien does not file the appropriate request for administrative or
judicial review, employment authorization will expire on the date
printed on the EAD. 8 CFR 208.7(b)(2). If the IJ, BIA, or Federal court
denies the asylum application and the alien chooses to file the
appropriate request for administrative or judicial review, employment
authorization will remain valid through the EAD expiration date, and
the alien will be eligible to file for a renewal EAD upon its
expiration. 8 CFR 208.7(c).

IV. Related Rulemaking

Simultaneously with this rule, DHS is engaging in other rulemaking
actions that are in various stages of development. DHS has considered
and analyzed these other rules for peripheral, overlapping, or
interrelated effects on this rule and has incorporated their effects,
if any, into the supporting documentation, policies, and regulatory
text for this proposed rule.

A. Discretionary EAD NPRM

In a separate notice of proposed rulemaking (NPRM), DHS is will
propose amendments to regulations governing discretionary employment
authorization for certain aliens who: have final orders of removal, but
are temporarily released from custody on orders of supervision (OSUP);
are paroled into the United States temporarily for urgent humanitarian
reasons or significant public benefit; or have been granted deferred
action. DHS proposes to limit and clarify eligibility to apply for
these categories of discretionary employment authorization. DHS further
proposes to specify that aliens applying for discretionary employment
authorization: (1) who admit committing a violent or dangerous crime
even if he or she has never been formally arrested, charged, indicted,
or convicted; (2) who have been arrested for, charged with (without
disposition), indicted for, or convicted of any criminal acts; or (3)
for whom there is evidence of the alien's membership in a gang or
terrorist organization, generally do not warrant a favorable exercise
of discretion unless there are significant countervailing public
interests. DHS notes that this proposed rule will be listed in the
publicly available Fall 2025 Unified Agenda of Federal Regulatory and
Deregulatory Actions.
DHS considered the possible combined effects of this Asylum EAD
Reform NPRM and the Discretionary EAD NPRM. As some of the proposed
amendments made in the Asylum EAD Reform NPRM and the Discretionary EAD
NPRM generally overlap, the combined effects are generally mitigated by
the inclusion of similar amendments between the two proposed rules.
While the Asylum EAD Reform NPRM does intersect with the Discretionary
EAD NPRM, DHS is using current regulatory text as the basis for
changes, as any changes proposed by the Asylum EAD Reform NPRM at this
point in the process are just that--proposed. Further, while the
Discretionary EAD NPRM will include changes related to all employment
authorization under 8 CFR 274a.12(c), it will not include any changes
to 8 CFR 274a.12(c)(8). This will allow the Asylum EAD Reform NPRM to
fully address (c)(8) issues, and the Asylum EAD Reform NPRM will not
make changes to categories addressed in the Discretionary EAD NPRM. DHS
acknowledges that, if the Discretionary EAD Final Rule goes into effect
prior to the Asylum EAD Reform NPRM, it may

[[Page 8649]]

be necessary to amend the appropriate regulatory text to reflect the
corresponding changes in the Discretionary EAD Final Rule.

B. Biometrics NPRM

In another separate rulemaking, DHS is proposing to amend DHS
regulations governing the use and collection of biometrics by DHS. DHS
will propose, among other things, updates to the regulatory definition
of biometrics to ensure it captures accepted modalities and to expand
the population of individuals required to submit biometrics. As
relevant to this Asylum EAD Reform NPRM, which would establish a
general biometrics requirement for asylum applicants seeking a (c)(8)
EAD, the Biometrics NPRM will propose to require biometrics from all
individuals filing for, or associated with, an immigration or
naturalization benefit request, other request, or collection of
information, unless DHS exempts the requirement DHS is proposing these
changes to enhance accurate identity verification and management
throughout the immigration lifecycle. The proposed changes would also
enhance DHS's ability to identify and deter immigration benefits fraud,
and allow DHS to perform more comprehensive biometrics-based background
checks in connection with immigration benefits requests. Aliens who
submit biometrics would face costs associated with time and travel.
These are detailed in the economic analysis, but DHS does not estimate
the total monetized impact. DHS notes that this proposed rule will be
listed in the publicly available Fall 2025 Unified Agenda of Federal
Regulatory and Deregulatory Actions.
DHS considered the possible combined effects of Asylum EAD Reform
NPRM and the Biometrics NPRM. As at least one of the amendments made in
the Asylum EAD Reform NPRM and the Biometrics NPRM generally overlap,
the combined effects are generally mitigated by the inclusion of a
similar amendment between the two proposed rules. Specifically, DHS is
proposing to require biometrics for all (c)(8) EAD applicants in both
the Asylum EAD NPRM and the Biometrics NPRM.

V. Discussion of Proposed Rule

A. Pause and Re-Start of (c)(8) EAD Application Acceptance

The IIRIRA amended the Act to state that any asylum procedures
established under section 208(d)(1) of the Act, 8 U.S.C. 1158(d)(1),
``shall provide that . . . , in the absence of exceptional
circumstances, final administrative adjudication of [an] asylum
application . . . shall be completed within 180 days after the date an
application is filed.'' \192\ In 1996, Congress decided to pursue
completion of first-instance asylum application decisions within 180
days of filing. Both Congress and the administration at that time
provided significant resources to accomplish that processing goal.\193\
After the statutory and regulatory changes of 1994 and 1996, new asylum
filings decreased from their peak of 154,464 in FY 1995 to 32,711 in FY
1999.\194\ As a result of both the reforms and the increase in
resources, the asylum system moved closer to accomplishing both
protection and benefit integrity, and closer to aligning with the
original intent behind the asylum process as a whole.\195\ The intent
has always been that once an asylum claim is filed, a decision is made
in a timely manner so that there is no need for an employment
authorization document until the alien has received a decision on the
asylum application.
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\192\ IIRIRA sec. 604(a), Public Law 104-208 (codified at INA
sec. 208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii)). IIRIRA also
modified the asylum statute to provide ``[n]othing in [8 U.S.C.
1158(d)] shall be construed to create any substantive or procedural
right or benefit that is legally enforceable by any party against
the United States or its agencies or officers or any other person.''
INA sec. 208(d)(7), 8 U.S.C. 1158(d)(7). Courts accordingly have
acknowledged the ``exceptional circumstances'' carve-outs to the
timing provisions of INA sec. 208(d)(5)(A), 8 U.S.C. 1158(d)(5)(A),
and this no-private-right-of-action provision render those timing
provisions non-mandatory. See, e.g., Zhuo v. Mayorkas, No. 23-cv-
5416, 2024 WL 4309232 at *4 (E.D.N.Y. Sept. 26, 2024) (``The
qualifying phrase `absen[t] exceptional circumstances' suggests that
Congress intended that the timeline not apply while the USCIS is
dealing with an exceptional level of aliens,'' and ``the bar to a
private right of action set forth in Sec. 1158(d)(7) . . . supplies
additional evidence of Congress' intent that the timeline is not
mandatory.'').
\193\ David A. Martin, ``The Need for Balance,'' Proceedings of
the Annual Meeting, American Society of International Law, Vol. 98
(2004), pp. 252-55; S. Rept. 104-249 (1996) (describing increased
property and personnel to address the asylum backlog).
\194\ Part of the reason for the high numbers in FY 1995 was the
ABC Settlement, which required certain aliens to file by deadlines
in 1995 and 1996. USCIS, ``American Baptist Churches v. Thornburgh
(ABC) Settlement Agreement,'' https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/american-baptist-churches-v-thornburgh-abc-settlement-agreement (last updated Sept. 3, 2009); INS, DOJ,
``1995 Statistical Yearbook of the Immigration and Naturalization
Service'' (Mar. 1997), p. 84; INS, DOJ, ``1999 Statistical Yearbook
of the Immigration and Naturalization Service'' (Mar. 2002), p. 86.
\195\ David A. Martin, ``The Need for Balance,'' Proceedings of
the Annual Meeting, American Society of International Law, Vol. 98
(2004), pp. 252-55.
---------------------------------------------------------------------------

Yet again, DHS again finds the asylum system to be under-resourced
and overwhelmed with asylum applications, and consequently an easy
target for many driven by the opportunity to receive employment
authorization by filing a frivolous, fraudulent, or otherwise meritless
asylum application.\196\ In recent years, USCIS has been overwhelmed by
both affirmative asylum receipts and credible fear screenings, leading
to an increase in the backlog. In 2022, USCIS received 247,790
affirmative asylum receipts, and in 2023 received 464,398 affirmative
asylum receipts, nearly double the 2022 receipts.\197\ Over recent
years, the credible fear caseload has also significantly increased,
going from a low of 5,216 cases in 2009 to 103,295 cases in 2019.\198\
In 2022, USCIS completed 54,092 credible fear cases.\199\ In 2023, that
number almost tripled to 150,431 credible fear receipts.\200\ In 2023,
with the expiration of Title 42, USCIS allocated more than 90% of its
asylum officers to process an expected surge of credible fear
cases.\201\ This left only about 3 percent of asylum officers to
adjudicate affirmative asylum cases, thus allowing the backlog to
continue to

[[Page 8650]]

grow.\202\ Similar to the affirmative asylum program, EOIR also more
than tripled their asylum application receipts, going from 265,632 in
FY 2022 to 905,632 in FY 2024.\203\ While the average processing time
for an affirmative asylum case completed in FY 2024 was 1,287 days, it
is important to note this includes the universe of affirmative asylum
cases, including backlog, LIFO, and any case prioritized for
adjudication, such as Afghan Operation Allies Welcome (OAW),\204\
mandamus, and expedited cases. In FY 2025 Q1, new affirmative asylum
applicants could expect processing to take 765.75 months, or more than
63 years; and for new filers in FY 2025 Q2, USCIS expects processing to
take approximately 562.25 months, or more than 46 years.\205\ DHS
believes the current volume and processing times of asylum applications
reflects similar dynamics as the pre-reform filings, and the effect of
the prior reform supports the deduction that there are many frivolous,
fraudulent, or otherwise meritless asylum application filings that are
filed solely for the purposes of obtaining an EAD. The asylum system is
again in need of a reform that decouples employment authorization from
the filing of an asylum application. However, the situation has now
turned catastrophic and requires novel solutions that meet the severity
of the problem.
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\196\ As described previously, after the statutory and
regulatory changes of 1994 and 1996, new asylum filings decreased by
approximately 80 percent from FY 1995 to FY 1999, and the approval
rate for asylum filings significantly increased. Ruth Ellen Wasem,
Congressional Research Service, ``Asylum and `Credible Fear' Issues
in U.S. Immigration Policy'' (June 29, 2011), https://www.congress.gov/crs-product/R41753; INS, DHS, ``Asylum Reform: Five
Years Later'' (Feb. 1, 2000), https://www.uscis.gov/sites/default/files/document/news/Asylum.pdf. In FY 2024, USCIS received more than
419,000 applications for affirmative asylum, and completed more than
126,000 affirmative asylum applications; USCIS, ``All USCIS
Application Petition Form Types (Fiscal Year 2024, Quarter 4)''
(Dec. 18, 2024), https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q4.xlsx.
\197\ USCIS OPQ Data, ``By Fiscal Year, Data Type, and Deny/
Referral Reasons'' (May 22, 2025).
\198\ USCIS, Credible Fear Cases Completed and Referrals for
Credible Fear (Nov. 17, 2023), available at https://ohss.dhs.gov/sites/default/files/2023-12/2023_0818_plcy_credible_fear_fy2022.xlsx
(last accessed May 27, 2025).
\199\ USCIS, Credible Fear Cases Completed and Referrals for
Credible Fear (Nov. 17, 2023), available at https://ohss.dhs.gov/sites/default/files/2023-12/2023_0818_plcy_credible_fear_fy2022.xlsx
(last accessed May 27, 2025).
\200\ USCIS, Congressional Semi-Monthly Report--Jan. 1, 2022 to
Jan. 15, 2023 (Jan. 30, 2023), available at: https://www.uscis.gov/sites/default/files/document/data/Congressional_Semi-Monthly_Credible_and%20Reasonable_Fear_Report%20-%20Jan%201%202022%20to%20Jan%2015%202023.xlsx (last accessed May 27,
2025); USCIS, Congressional Semi-Monthly Report--December 16, 2022-
December 31, 2023 (Jan. 5, 2024), available at: https://www.uscis.gov/sites/default/files/document/data/Congressional_Semi-Monthly_CF%26RF_Report_12_16_22_to_12_31_23.xlsx (last accessed May
27, 2025).
\201\ OIG, USCIS Faces Challenges Meeting Statutory Timelines
and Reducing Its Backlog of Affirmative Asylum Cases (July 3, 2024),
available at: https://www.oig.dhs.gov/sites/default/files/assets/2024-07/OIG-24-36-Jul24.pdf.
\202\ OIG, USCIS Faces Challenges Meeting Statutory Timelines
and Reducing Its Backlog of Affirmative Asylum Cases (July 3, 2024),
available at: https://www.oig.dhs.gov/sites/default/files/assets/2024-07/OIG-24-36-Jul24.pdf.
\203\ EOIR, Adjudication Statistics: Total Asylum Applications
(July 31, 2025), https://www.justice.gov/eoir/media/1344871/dl?inline.
\204\ OAW was an interagency coordinated effort to establish
pathways for parole and other forms of protection for Afghans
seeking to resettle in the United States. See USCIS, ``Operation
Allies Welcome'' (last visited June 9, 2025), https://www.dhs.gov/archive/operation-allies-welcome.
\205\ To calculate this, USCIS used ``cycle time'', which is how
many months' worth of receipts represents the current pending
volume. It is a metric that can be used for projections because it
takes into account current pending volume, anticipated receipts, and
expected completions.
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If finalized, DHS would pause the acceptance of initial (c)(8) EAD
applications when the average processing time \206\ for affirmative
asylum applications over a consecutive period of 90 days adjudication
exceeds 180 days.\207\ Acceptance of initial (c)(8) EAD applications
would resume when the average processing time for affirmative asylum
adjudications over a consecutive period of 90 days is less than or
equal to 180 days. The USCIS Director's determination to pause or
restart acceptance of (c)(8) EAD applications is not discretionary, and
that determination would be directly tethered to the processing times
of all affirmative asylum applications over the previous 90-day period.
DHS acknowledges that the pausing of acceptance of initial (c)(8) EAD
applications will create a potentially significant hardship for asylum
applicants. Depending on asylum receipts moving forward, which will
likely decrease if this rule is finalized as proposed but will also
continue to be subject to change due to a variety of other factors, the
initial pause may last a significant amount of time. The pause on EAD
application acceptances and processing may last from 14 to 173 years,
or longer. For example, without factoring in any of the other proposed
changes in this rule and how they would impact adjudications, if
receipts decrease by 80 percent, as they did following the 1994
regulatory reforms, it could take USCIS as long as 14 years to reach a
180-day processing time.\208\ If, instead, receipts decrease by 50
percent, it could take USCIS as long as 173 years to reach a 180-day
processing time. It bears repeating that neither of those projections
take into account any of the other proposed changes in this rule which,
if finalized, would also shorten those processing times.\209\ USCIS
recognizes that the effect of this pause would be to restrict access to
pending asylum application-based employment authorization for new
applicants for an extended period, with the duration of the pause
determined by the future decrease in asylum application receipts. While
this is a significant change in access to pending asylum application-
based employment authorization, DHS believes it is necessary to
exercise its statutory discretion to implement these changes to achieve
its goals of enhancing benefit integrity, protecting national security,
and reducing resource strains.
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\206\ USCIS has historically defined ``processing time'' as the
time it took USCIS to complete 80% of the adjudicated cases over the
last six months. USCIS, Case Processing Times (last visited Aug. 27,
2025), https://egov.uscis.gov/processing-times/more-info. However,
USCIS recognizes that this definition does not provide insight into
the full scope of the pending affirmative asylum application
caseload due to the use of LIFO processing. For example, if USCIS
only completed cases using LIFO processing over the six months from
January 1, 2026, through June 30, 2026, the oldest cases would
continue to remain pending for an ever-growing period. In the
future, when USCIS adjudicates those older cases, their processing
times would be even longer than those adjudicated in the first six
months of 2026. Accordingly, if USCIS finalizes this rule as
proposed, USCIS plans to calculate a modified processing time that
includes the full pending affirmative asylum caseload in order to
most accurately depict asylum application processing times and
account for older pending cases. USCIS requests comments, however,
on any other ways that USCIS could modify the ``processing time''
metric in this context to account for older pending cases and the
amount of time they will ultimately have required for adjudication.
\207\ USCIS would, however, continue to process pending
applications received prior to the pause.
\208\ ``Cycle time'' is how many months' worth of receipts
represents the current pending volume. It is a metric that can be
used for projections because it takes into account current pending
volume, anticipated receipts, and expected completions.
\209\ ``Processing time'' is the time from receipt to completion
for each individual form and can be averaged over a specific period
of time in the past, but does not take into account currently
pending applications and cannot be used for projections.
---------------------------------------------------------------------------

As discussed in several places earlier in this rule, DHS is
confronted with a similar situation to the INS in the early 1990s. The
INS responded with certain regulatory reforms that succeeded in
curtailing meritless claims and delivering fair and timely decisions on
asylum cases.\210\ In the wake of those asylum reforms, new asylum
filings actually decreased from their then-peak of 149,566 in FY 1995
to just 30,261 in FY 1999, a decrease of nearly 80 percent in only five
FYs.\211\ At the same time, the approval rate significantly increased,
from 15 percent of cases adjudicated in FY 1993 to 38 percent in FY
1999.\212\ Consequently, INS's reforms met the stated goals of that
rulemaking, preventing aliens from applying for asylum primarily as a
means to obtain employment authorization, while simultaneously enabling
the INS to more promptly grant asylum--and provide work authorization--
to those who merit this relief''.\213\ Because the proposals in this
rulemaking are designed to have a similar effect to those reforms
implemented by the INS in 1994, DHS expects this rulemaking will
eventually achieve similar results to those achieved by the INS.
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\210\ Rules and Procedures for Adjudication of Applications for
Asylum or Withholding of Deportation and for Employment
Authorization, 59 FR 14779 (Mar. 30, 1994); Rules and Procedures for
Adjudication of Applications for Asylum or Withholding of
Deportation and for Employment Authorization, 59 FR 62284 (Dec. 5,
1994).
\211\ Ruth Ellen Wasem, Congressional Research Service, ``Asylum
and `Credible Fear' Issues in U.S. Immigration Policy'' (June 29,
2011), https://www.congress.gov/crs-product/R41753; INS, DOJ
``Asylum Reform: Five Years Later'' (Feb. 1, 2000), https://www.uscis.gov/sites/default/files/document/news/Asylum.pdf.
\212\ INS, DOJ ``1999 Statistical Yearbook of the Immigration
and Naturalization Service'' (Mar. 2002), p. 100. Percent approved
is `[t]he number of cases granted divided by the sum of: cases
granted; denied; and referred to an Immigration Judge following an
interview.''
\213\ See 59 FR 62284, 62290-62291 (Dec. 5, 1994).
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As detailed above, DHS is primarily attempting to resolve the
issues surrounding the asylum backlog but is having difficulty even
reaching those

[[Page 8651]]

cases due to many operational concerns and competing adjudications
priorities. DHS can circumstantially establish that these proposed
reforms would help DHS achieve its stated goals--which are the same as
the INS's goals in 1994. For purposes of a hypothetical, assuming DHS
publishes a final rule aligned with the proposed rule here and achieves
similar results to what the INS achieved in 1994--a nearly 80 percent
reduction in asylum applications in only five FYs--DHS could then
reallocate asylum resources and more successfully tackle the looming
backlog. DHS could also move its EAD adjudicatory resources to support
timely adjudication of initial (c)(8) EAD applications as well as other
EAD application categories, which in turn reduces processing times for
EAD applications across the board. Once (c)(8) EAD receipts decrease,
USCIS could comfortably surge resources to the Asylum Division for
adjudications support functions (with appropriate cross training) or
clerical and administrative functions, both of which have simply not
been possible with the current state of operations necessary to
maintain Rosario compliance.
For example, in FY2024, the last full year of data available, DHS
received 422,457 asylum applications.\214\ Assuming for a moment DHS
can replicate INS's results with this rule, achieving an 80% reduction
in asylum filings, then DHS new asylum filings would drop closer to
84,491 (20% of 422,457). At the same time, using staffing levels from
FY2024, DHS approved 17,175, administratively closed 107,007, and
denied or referred 5,709--for a total of 129,891 final decisions and
administrative closures on pending asylum applications.\215\ If all
other variables remained constant and the impacts of this rulemaking
yielded a similar result as the INS's 1994 rulemaking, then at FY2024
staffing levels DHS would be adjudicating 153% of the projected new
asylum filing receipt volumes.
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\214\ USCIS OPQ DATA, ``By Fiscal Year, Data Type, and Deny/
Referral Reasons'' (May 22, 2025).
\215\ Id.
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Looking at FY2025 data (through May 22, 2025) as another example,
an even better result is reached. DHS received 331,883 asylum
applications this year (YTD).\216\ Again, assuming for a moment DHS can
replicate INS's past results with this current rule, achieving an 80%
reduction in asylum filings, then DHS new asylum filings would drop
closer to 66,376 (20% of 331,883). At current staffing levels, in
FY2025 DHS approved 8,667, administratively closed 159,530, and denied
or referred 11,872--for a total of 180,069 final decisions on pending
asylum applications.\217\ Looking at partial FY2025 data, if all other
variables remained constant and the impacts of this rulemaking yielded
a similar result as the INS's 1994 rulemaking, then at current staffing
DHS would be adjudicating 240% of the projected new asylum filing
receipt volumes.
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\216\ Id.
\217\ Id.
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DHS notes that certain variables would not remain constant with
this hypothetical. Notably, as both new asylum filing receipt and
asylum backlog volumes decline, initial and renewal (c)(8) EADs filings
organically would decline as well. As asylum filing receipts decrease
as a result of the proposed regulatory changes, asylum officer
resources will be able to devote more time to the USCIS asylum
application backlog. At the same time, the reduction in (c)(8) EAD
filings will allow USCIS to more efficiently allocate EAD adjudications
staff across other EAD filing categories in an effort to reduce overall
processing times across the board. DHS also notes that the then-peak of
new asylum filings in FY1995 (149,566) has been surpassed in all four
of the last FYs (FY2022 247,790; FY2023 464,398; FY2024 422,457; and
FY2025 331,883 (through May 22, 2025)),\218\ so while the assumptions
in this hypothetical are feasible, the sheer volume of new asylum
filings may slow the rate at which the INS's results are reached by DHS
(e.g., it may take 8 or 10 years instead of 5). However, DHS is
confident that if these proposed changes are finalized, DHS will
achieve a result similar to the INS after its 1994 regulatory reforms.
---------------------------------------------------------------------------

\218\ Id.
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Based on the data supporting this rule and the justification
described here, DHS proposes to codify in regulation that it will pause
acceptance of initial (c)(8) EAD applications from asylum applicants
when the processing times of adjudications of affirmative asylum
applications exceeds 180 days for a period of 90 consecutive days,
until the USCIS processing time for adjudicating affirmative asylum
applications is less than or equal to 180 days for a period of 90
consecutive days.\219\ After USCIS has resumed accepting initial
employment authorization applications from asylum applicants, if the
average processing times of adjudications of affirmative asylum
applications again exceeds 180 days for a period of 90 consecutive
days, USCIS would again pause the acceptance of (c)(8) EAD
applications. The determinations as to whether initial employment
authorization applications for asylum applicants are accepted or not
would be made by the Director of USCIS, based on the USCIS processing
times only and not subject to discretion. The agency would announce on
the USCIS website when it will accept and when it pauses acceptance of
initial (c)(8) EAD applications. The announcement would also be
accompanied by the publication of the processing times, which support
the determination made by the Director of USCIS. DHS believes that a
website update is the most expeditious and accessible mode of notifying
the public of its operational posture. DHS also believes that a
critical part of this process will be to provide the processing times,
which form the basis for the determinations made by the Director of
USCIS. Therefore, DHS proposes to publish the quarterly processing
times. It should be highlighted that any pause of initial employment
authorization applications from asylum applicants would not apply to
any renewal (c)(8) EAD applications, which would continue to be
accepted and adjudicated by USCIS in the event the processing time of
adjudications of affirmative asylum applications exceeds 180 days for a
period of 90 consecutive days. DHS decided on a 90-day evaluation
period, as it correlates with the current compilation of processing
times and other statistics performed on a quarterly basis by DHS
experts.
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\219\ USCIS calculates processing times by determining how long
it took to complete 80 percent of adjudicated cases over the last
six months. See more USCIS, ``Case Processing Times,'' https://egov.uscis.gov/processing-times/more-info (last visited May 26,
2025).
---------------------------------------------------------------------------

In addition, as a result of this change and the 365-day waiting
period described later in this document, moving forward, fewer asylum
applicants will receive employment authorization while their
applications are pending. Only aliens whose asylum applications are
pending beyond 365 days while the average asylum application processing
time remains at or below 180 days will be eligible to file for an
initial (c)(8). EAD. Just as the INS did in 1994, DHS has dutifully
balanced this hardship against the need for a functioning asylum system
and the need to deter aliens filing frivolous, fraudulent, or otherwise
meritless claims solely motivated by the opportunity to obtain an
employment authorization document. DHS believes that the asylum system
is currently over-burdened and overwhelmed by asylum applications,
including the frivolous, fraudulent, or otherwise by

[[Page 8652]]

meritless asylum applications filed by aliens who are seeking to obtain
employment authorization. DHS understands that asylum applicants may be
fleeing past persecution or may have a well-founded fear of future
persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion. INA sec. 208(b)(1), 8
U.S.C. 1158(b)(1). However, there is nothing in the statute that
requires an EAD for aliens applying for asylum, rather this is a purely
discretionary EAD category. The intention behind the asylum system is
to provide a timely response to an asylum claim. Thereafter, the aim is
to provide employment authorizations to aliens ultimately eligible for
asylum, not guarantee employment authorization to all aliens who seek
asylum, but may ultimately not be eligible. By pausing the acceptance
of initial employment authorization applications, which has now
exceeded 150,000 applications per month,\220\ aliens will have less
incentive to file frivolous, fraudulent, or otherwise meritless asylum
applications for the purposes of obtaining employment authorization,
and DHS expects that asylum filings will therefore decrease, as they
did in the years following IIRIRA reform. With a decline in frivolous,
fraudulent, or otherwise meritless asylum applications USCIS would have
greater bandwidth to focus adjudicative efforts on the existing asylum
backlog by reallocating more available asylum officers to backlog cases
and work toward providing timely and fair decisions. The accompanying
decline in (c)(8) EAD applications would also allow USCIS to reallocate
EAD staffing resources to other EAD application categories and decrease
EAD processing times across the board.
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\220\ USCIS, ``Form I-765 Application for Employment
Authorization, All Receipts, Denials, Pending Grouped by Eligibility
Category and Filing Type,'' (Apr. 30, 2025), https://www.uscis.gov/sites/default/files/document/data/i765_application_for_employment_fy2025_q1.xlsx.
---------------------------------------------------------------------------

USCIS recognizes that the initial pause on acceptance of new
initial (c)(8) EAD applications may be lengthy as USCIS works to
adjudicate the substantial backlog of pending asylum cases that are
already pending before USCIS. However, USCIS believes this pause will
result in a decrease in new asylum receipts comparable to the 80%
decrease that was seen as a result of the INS's 1994 rulemaking. USCIS
notes that the absolute number of aliens granted asylum remained
relatively consistent following that rulemaking, indicating that
changes in access to employment authorization did not deter aliens with
meritorious asylum applications from filing. USCIS recognizes that in
this proposed rule, the pause of on EAD application acceptances will
likely be significantly lengthier than the 180-day waiting period
implemented through the 1994 regulation and therefore there may be some
aliens with potentially meritorious filings who are deterred from
filing. In conjunction with the proposed regulatory changes, USCIS
intends to generally maintain its LIFO processing to asylum
adjudications and believes that the combination of vastly decreased
receipts and the significant increase in asylum officers over recent
years will allow USCIS to work through the backlog and get to a place
where the agency is adjudicating new asylum applications within the
180-day time period after this rule takes effect.
USCIS notes this represents a return to the intended functioning of
these sections of the INA and regulations. Employment authorization due
to a pending asylum application is intended by the statute and existing
regulation to be exceptional and unusual. By linking the ability to
receive a new applications for (c)(8) EAD to the pending affirmative
asylum caseload, USCIS intends to ensure that this section of the INA
functions as it was intended to and eliminates the ability for aliens
filing frivolous, fraudulent, or meritless asylum applications to
create a vicious cycle by overwhelming the asylum system and then
profiting from doing so at the expense of meritorious asylum applicants
and the American people.

B. 365 Calendar-Day Waiting Period To Apply for (c)(8) EADs

As discussed previously, there are many factors that have
contributed to the backlog of asylum cases that leads to the abuse of
the asylum system for employment authorization. Among those has been
the recent expansive use of deferred action, parole, and temporary
protected status (TPS). In FY 2020, USCIS data show only 104 aliens
with deferred action who subsequently filed a Form I-589; by FY 2025
(YTD) that number rose to 1,158--a 1,013% increase.\221\ In FY 2020,
USCIS data show only 758 aliens with parole who subsequently filed a
Form I-589; by FY 2025 (YTD) that number rose to 156,242--a 20,512%
increase.\222\ In FY 2020, USCIS data show only 66 aliens with TPS who
subsequently filed a Form I-589; by FY 2025 (YTD) that number rose to
43,512--a 65,827% increase.\223\ These programs, quite simply, were not
intended to provide permanent immigration status to aliens. The
expansive use of these programs has not only further taxed the already
strained asylum system, but also increased the presence of illegal
aliens and other aliens with only temporary status and low likelihood
of obtaining permanent status in the United States. Filing an
application for asylum is one such way an alien in this position may
seek to remain in the United States.
---------------------------------------------------------------------------

\221\ See USCIS OPQ data, I-589, Application for Asylum and for
Withholding of Removal, I-730 Refugee/Asylee Relative Petition for
FTJ-A Deferred Action, Parole, or TPS Preceding Asylum Filings
Fiscal Years 2020-2025 (As of July 31, 2025).
\222\ Id.
\223\ Id.
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Over the span of decades, DHS has exercised discretionary authority
to parole, grant deferred action, or exercise temporary parole
authority expansively to create categorical parole programs.\224\ The
INA confers upon the Secretary the narrow discretionary authority to
parole applicants for admission into the United States ``temporarily
under such conditions as [DHS] may prescribe only on a case-by-case
basis for urgent humanitarian reasons or significant public benefit.''
\225\ While those parole

[[Page 8653]]

programs were terminated, many aliens are still in the United States,
often without a pathway to lawful residence in the United States.
Parole grants in recent years have been extremely large, with 795,561
parole grants in FY 2022 and 1,340,002 parole grants in FY 2023.\226\
---------------------------------------------------------------------------

\224\ See e.g. DHS final rule, International Entrepreneur Rule,
82 FR 5238 (Jan. 17, 2017). DHS published a proposed rule (83 FR
24415, May 29, 2018) to rescind the International Entrepreneur
Parole Program created in January 2017. Implementation of a Parole
Process for Cubans, 88 FR 1266 (Jan. 9, 2023); Implementation of a
Change to the Parole Process for Cubans, 88 FR 26329 (Apr. 28,
2023); Implementation of a Parole Process for Haitians, 88 FR 1243
(Jan. 9, 2023); Implementation of a Change to the Parole Process for
Haitians, 88 FR 26327 (Apr. 28, 2023); Implementation of a Parole
Process for Nicaraguans, 88 FR 1255 (Jan. 9, 2023); Implementation
of a Parole Process for Venezuelans, 87 FR 63507 (Oct. 19, 2022);
Implementation of Changes to the Parole Process for Venezuelans, 88
FR 1279 (Jan. 9, 2023).
\225\ INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A); see also 8
CFR 212.5(a) and (c) through (e) (discretionary authority for
establishing conditions of parole and for terminating parole).
Parole was codified into immigration law in the Immigration and
Nationality Act of 1952. As envisioned then, the 1952 Act authorized
the Attorney General to parole aliens temporarily under such
conditions as he may prescribe for emergent reasons or reasons
deemed strictly in the public interest. As expressed then, ``the
parole of aliens seeking admission is simply a device through which
needless confinement is avoided while administrative proceedings are
conducted.'' See Leng May Ma v. Barber, 357 U.S. 185, 190 (1958).
However, the parole authority, whether intended to be narrow or
broad, has in fact been used in an increasingly broad manner since
its inception, often earning the criticism of Congress, which in
1996 wrote, ``[i]n recent years, however, parole has been used
increasingly to admit entire categories of aliens who do not qualify
for admission under any other category in immigration law, with the
intent that they will remain permanently in the United States. This
contravenes the intent of section 212(d)(5), but also illustrates
why further, specific limitations on the Attorney General's
discretion are necessary.'' See H.R. Rep. 104-469, pt. 1, at 140
(1996). Furthermore, IIRIRA struck from INA 212(d)(5)(A), 8 U.S.C.
1182(d)(5)(A), the phrase, ``for emergent reasons or for reasons
deemed strictly in the public interest'' as grounds for granting
parole into the United States and inserted ``only on a case-by-case
basis for urgent humanitarian reasons or significant public
benefit.'' See Pub. L. 104-208, div. C, Sec. 602(a). ``The
legislative history indicates that this change was animated by
concern that parole under 8 U.S.C. 1182(d)(5)(A) was being used by
the executive to circumvent congressionally established immigration
policy.'' Cruz-Miguel v. Holder, 650 F.3d 189, 199 n.15 (2d Cir.
2011).
\226\ Noem v. Svitlana Doe, 605 U.S. __ (2025); DHS, ``Parole
Requests Fiscal Year 2023, Fourth Quarter'' (Apr. 3, 2024),
www.dhs.gov/sites/default/files/2024-07/2024_0403_dmo_plcy_parole_requests_q4.pdf; DHS, ``Parole Requests
Fiscal Year 2022'' (July 12, 2023), www.dhs.gov/sites/default/files/2023-08/23_0712_cbp_fy22_parole_requests.pdf; Termination of Parole
Processes for Cubans, Haitians, Nicaraguans, and Venezuelans, 90 FR
13611 (Mar. 25, 2025).
---------------------------------------------------------------------------

In addition, the use of deferred action has expanded significantly.
Deferred action is a form of discretion in which DHS chooses to not
seek an alien's removal from the United States, though the alien lacks
lawful status or is otherwise removable from the United States. Unlike
parole, deferred action was not created by statute and is not
specifically defined in the INA. The decision not to take an
enforcement action is within the discretion of the agency.\227\
Deferred action was never meant to supplant the current legal
immigration process or provide long-term relief solely to allow an
inadmissible, removable, or otherwise ineligible alien to remain in the
United States until he or she can qualify for a legal status.\228\ The
largest categorical deferred action program is Deferred Action for
Childhood Arrivals (DACA), and as of September 2024 approximately
538,000 \229\ aliens were living in the United States with DACA.\230\
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\227\ See United States v. Texas, 599 U.S. 670 (2023).
\228\ See Considerations of Deferred Action for Childhood
Arrivals, Frequently Asked Questions, https://www.uscis.gov/
humanitarian/consideration-of-deferred-action-for-childhood-
arrivals-daca/frequently-asked-
questions#:~:text=Although%20action%20on%20your%20case,confer%20any%2
0lawful%20immigration%20status. (last visited May 27, 2025).
\229\ See Office of Performance and Quality, USCIS, DHS, ``Count
of Active DACA Recipients'' ELIS, CLAIMS3, queried 11/2024,
PAER0015824, https://www.uscis.gov/sites/default/files/document/data/active_daca_recipients_fy2024_q4.xlsx (last visited May 1,
2025).
\230\ See DHS, ``Exercising Prosecutorial Discretion with
Respect to Individuals Who Came to the United States as Children''
Memorandum from Janet Napolitano, Secretary, DHS, to David V.
Aguilar, Acting Commissioner, (June 15, 2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.
---------------------------------------------------------------------------

TPS is yet another program that does not lead to long-term legal
status in the United States. Under section 244 of the Immigration and
Nationality Act (INA), 8 U.S.C. 1254a, the Secretary of Homeland
Security may designate a foreign state (or part thereof) for TPS after
consulting with appropriate agencies of the U.S. Government and
determining that there are specified conditions present in that foreign
state or part of a foreign state, such as ongoing armed conflict that
would pose a serious threat to the safety of retuning aliens.\231\ The
Secretary may then grant TPS to eligible nationals of that foreign
state or eligible aliens having no nationality who last habitually
resided in that state.\232\ In addition, DHS has at times re-designated
countries for TPS and allowed aliens who entered the United States
after the initial designation of TPS to be newly eligible for TPS.\233\
In Calendar Year 2024 there were approximately 1,396,586 TPS
beneficiaries.\234\
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\231\ INA sec. 244(b)(1), 8 U.S.C. 1254a(b)(1).
\232\ Id.
\233\ See, e.g., 89 FR 26172 (Apr. 15, 2024) (extending and
redesignating TPS for Ethiopia).
\234\ USCIS OPQ DATA,
``PAER0015852_I821_CY24_Congressional_Current_Holders_as_of_2024-12-
31_FIN'' (January 10, 2025).
---------------------------------------------------------------------------

The expansive use of these three programs over the years has
created a very large population of illegal aliens that do not have
pathways to permanent residence in the United States outside of seeking
asylum. The expansive use of these programs has further incentivized
aliens to file frivolous, fraudulent, or otherwise meritless asylum
applications to gain employment authorization.\235\ While each of these
programs provides access for employment authorization, it is for a
specific and time-limited period. Asylum remains an attractive option
for aliens to secure employment authorization for an extended period of
time, despite lacking a basis for asylum, due to the enormous backlog.
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\235\ As detailed above, USCIS cross-referenced all asylum
application denials with asylum application denials where the alien
had a previously approved application for employment authorization
in the (c)(8) category, and identified a pattern. In FY2015, USCIS
issued 15,515 denials or referrals to asylum applicants, but only
4,578 (29.5%) had one or more previously approved (c)(8) EAD. By
FY2023, USCIS issued 5,963 denials or referrals to asylum
applicants, but 4,351 (72%) had one or more previously approved
(c)(8) EAD. In FY2024, USCIS issued 5,709 denials or referrals to
asylum applicants, but 5,087 (89%) had one or more previously
approved (c)(8) EAD. In FY2025 (through May 22, 2025), USCIS issued
11,872 denials or referrals to asylum applicants, and 9,475 (79.8%)
had one or more previously approved (c)(8) EAD. At the simplest
level, if there were no asylum backlog and each asylum application
received was adjudicated within 180 days, none of those aliens whose
asylum applications were denied would have been granted an
employment authorization. See generally, USCIS OPQ DATA ``Form I-
589, Application for Asylum and for Withholding of Removal
(Principals only), Pending/Denial/Referral with a previously
approved I-765(c)(8) by FY for FY2015-2025 (through May 22, 2025)''.
---------------------------------------------------------------------------

With this background, DHS is proposing in this rule to extend 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(a)(1).
DHS also proposes to eliminate the separate waiting periods for
eligibility to receive an EAD, so that aliens are eligible to apply and
be granted employment authorization at the same time. Currently, an
asylum applicant may file for employment authorization once their
application for asylum has been pending for 150 days and may receive an
EAD after their application for asylum has been pending for 180 days,
excluding any alien-caused delays. 8 CFR 208.7(a)(1). Under the current
model, both USCIS and the alien must track two timeframes: the 150-day
waiting period, and the 180-day Asylum EAD Clock. The clock calculation
is subject to starts and stops based on delays, depending on whether
the delay is an agency-caused delay or an alien-caused delay. 8 CFR
208.7(a)(2). As described in section D.3.a of this preamble, this
system is complicated and overly burdensome on both the alien and
USCIS. Thus, DHS proposes to codify in regulation that it will merge
the waiting period to apply and the waiting period to be eligible into
one, straight-forward timeline: 365 calendar days.\236\
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\236\ As described in section II.C.2 of this preamble, the
proposed 365-waiting period would apply to applications filed on or
after the effective date of the final rule. The proposed rule would
retain the same substantive provisions regarding the 180-day Asylum
EAD clock, and applicant-caused delays, as are found in the current
8 CFR 208.7(a)(1) and (2) for applications pending as of the
effective date of the final rule.
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Under the proposed rule, USCIS will no longer have to account for
alien-caused delays in calculating the 180-day Asylum EAD Clock, but
will instead simply calculate 365 calendar days from the asylum
application receipt date to determine when an alien can request
employment authorization. The INS previously chose the 180-day waiting
period to deter aliens who are meritless asylum seekers from filing
frivolous, fraudulent, or meritless claims to obtain employment
authorization. 59 FR 62284 (Dec. 5, 1994). As the 180-day waiting
period is no longer providing a deterrence, DHS proposes to codify in
regulation that it will change the time

[[Page 8654]]

period to a 365-day waiting period. USCIS notes that the current
regulations allow the applicant to submit the application at 150 days
and then builds in the 30-day processing timeframe buffer to add up to
180 days; but USCIS proposes now to eliminate the processing time
buffer, so that that aliens may not apply until 365 days after their
asylum application is received. Coupled with the 180-day adjudication
timeframe, these changes could increase the total waiting period for an
EAD to 545 days. By choosing a waiting period that exceeds the target
180-day processing time for asylum applications, DHS hopes to deter
frivolous, fraudulent, or meritless applications and, in turn, be able
to approve meritorious asylum applications more quickly, ensuring only
those with approved asylum petitions are able to work within 365
calendar days.
Elimination of the 180-day Asylum EAD Clock would resolve some of
the difficulties adjudicators face in processing (c)(8) EAD
applications. The current 180-day Asylum EAD Clock requires complex and
time-consuming tracking of clock starts and stops for each alien's case
and coordination with EOIR for defensively filed cases that are not
under USCIS' jurisdiction. See 8 CFR 208.7(a)(2). Changing the process
from a 180-day clock with starts and stops to a clear 365-calendar-day
waiting period would simplify the determination of the date of the
alien's employment authorization eligibility.
Moving from the 180-day Asylum EAD Clock to a straightforward 365
calendar-day waiting period would also eliminate the need to use finite
government resources for the purpose of calculating clock starts and
stops, and for providing customer service support for aliens who have
questions about their clock status, including potential miscalculations
or questions about clock stoppages. Under this proposed rule, DHS would
deny EAD applications filed before the 365 calendar-day waiting period
has elapsed. Once accepted, DHS would be able to adjudicate the request
on the proposed substantive eligibility requirements without expending
resources on clock calculations.
DHS believes increasing the waiting period before an asylum
applicant may obtain employment authorization will also decrease the
incentives for aliens who do not have meritorious asylum claims to
exploit the system by filing frivolous, fraudulent, or meritless claims
in order to obtain employment authorization. Currently, an asylum
applicant may file for employment authorization once their application
for asylum has been pending for 150 days and may receive an EAD after
their application for asylum has been pending for 180 days, excluding
any alien-caused delays. 8 CFR 208.7(a)(1). As the USCIS affirmative
asylum pending caseload is at approximately 1.45 million and the EOIR
asylum application pending caseload is over 2.37 million,\237\ there is
a significant incentive for certain aliens to exploit the immigration
system and file for asylum, even if their cases will ultimately be
denied on the merits, as a means to obtain employment authorization for
the years' long period that their application is pending.\238\ In order
to combat the rising backlog of affirmative asylum cases and the
significant length of time aliens wait before adjudication and comply
with statutory interview requirements,\239\ legacy INS implemented the
last in, first out (LIFO) asylum adjudication scheduling priorities,
which aims to deter those who might try to take advantage of the
existing backlog in order to obtain employment authorization.\240\
Giving priority to recent filings typically allows USCIS to promptly
place aliens into removal proceedings if USCIS does not grant the
asylum application, which reduces the incentive to for aliens
contemplating filing for asylum today solely to obtain employment
authorization.\241\ LIFO was first established during the asylum
reforms of 1995 and used for 20 years until 2014. The end of LIFO in
2014 led to a significant increase in asylum application filings.
Subsequently, LIFO was reimplemented in 2018, and USCIS continues to
give priority to recent filings today. However, by the time USCIS
returned to LIFO scheduling, the backlog had grown by more than 1,750
percent from FY 2014 through FY 2017.\242\
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\237\ USCIS, ``Number of Service-wide Forms By Quarter, Form
Status, and Processing Time'' (Apr. 30, 2025), https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2025_q1.xlsx; EOIR, Adjudication Statistics:
Total Asylum Applications (July 31, 2025), https://www.justice.gov/eoir/media/1344871/dl?inline.
\238\ See, e.g., Muzaffar Chishti & Julia Gelatt, ``Mounting
Backlogs Undermine U.S. Immigration System and Impede Biden Policy
Changes,'' Migration Policy Institute (Feb. 23, 2022); Doris
Meissner, et al., ``The U.S. Asylum System in Crisis; Charting a Way
Forward,'' Migration Policy Institute (Sept. 2018), pp. 4 and 9-12,
for additional discussion on the impact of backlogs and delays in
immigration proceedings.
\239\ See INA Sec. 208(d)(5)(A)(ii), ``. . . in the absence of
exceptional circumstances, the initial interview or hearing on the
asylum application shall commence not later than 45 days after the
date an application is filed[.]''
\240\ USCIS, ``Affirmative Asylum Interview Scheduling,''
https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/affirmative-asylum-interview-scheduling (last updated Mar. 29,
2024).
\241\ Id.
\242\ USCIS, ``USCIS to Take Action to Address Asylum Backlog''
(Jan. 31, 2018), https://www.uscis.gov/archive/uscis-to-take-action-to-address-asylum-backlog.
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In March 2024, USCIS implemented a second simultaneous scheduling
track in addition to LIFO. Under the second track, USCIS assigns some
of its asylum officers to complete affirmative asylum applications
pending in the backlog, starting with the oldest applications and
working forward. This permits some of the oldest pending applications
to be completed in chronological order.\243\
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\243\ USCIS, ``Affirmative Asylum Interview Scheduling'' https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/affirmative-asylum-interview-scheduling (last updated Mar. 29, 2024).
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USCIS has not been able to reduce the backlog of affirmative asylum
applications through scheduling alone, and DHS continues to see large
numbers of affirmative asylum application filings, the majority of
which are likely to be ultimately unsuccessful, and significant numbers
of related employment authorization applications. As described in
Section III.C., USCIS has tripled the number of asylum officers in the
last decade and implemented numerous other efforts to address the
building backlog and integrity concerns. However, in recent years,
insufficient staffing,\244\ insufficient physical office space,\245\
and shifting geopolitical realities, including a fundamental shift in
global migration patterns,\246\ and the expansive use of parole,
deferred action, and TPS, have necessitated the reassignment of asylum
officers to other urgent caseloads, such as credible fear and
reasonable fear screenings and other border-related workloads. The
diversion of asylum officers to other mandatory tasks, along with the
surge in litigation seeking to compel immediate action on individual
asylum applications, reduced the number of asylum officers available
for the processing of non-litigation-related affirmative asylum
applications, which drastically decreased the number of affirmative
asylum interviews scheduled and applications adjudicated.\247\ Because
of these recent

[[Page 8655]]

challenges to an already overwhelmed system and the fact that the
processing order, alone, is not sufficient to address the massive
number of asylum filings, additional measures must be implemented to
deter meritless asylum filings. DHS believes that introducing a 365
calendar-day waiting period will result in a decreased number of asylum
filings. The combined effect of the extended waiting-period for
employment authorization and USCIS' prioritization of recently-filed
asylum applications should drive the number of meritless asylum filings
down and allow USCIS to dedicate more adjudicative resources to backlog
cases.
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\244\ Office of Inspector General, DHS, ``USCIS Faces Challenges
Meeting Statutory Timelines and Reducing Its Backlog of Affirmative
Asylum Claims'' (July 3, 2024), https://www.oig.dhs.gov/sites/default/files/assets/2024-07/OIG-24-36-Jul24.pdf.
\245\ Id.
\246\ Id.; IOM, World Migration Report 2024: Chapter 3--
Migration and migrants: Regional dimensions and developments (2024),
available at https://publications.iom.int/books/world-migration-report-2024-chapter-3 (last accessed July 15, 2025).
\247\ See USCIS, ``Asylum Application Processing Fiscal Year
2023 Report to Congress'' at 5-7, (Nov. 1, 2023), https://www.dhs.gov/sites/default/files/2024-01/2023_1101_uscis_asylum_application_processing_fy2023.pdf. For
example, in FY 2024, USCIS completed 40 percent less affirmative
asylum applications than it completed in FY 2022. USCIS, ``All USCIS
Application Petition Form Types (Fiscal Year 2024, Quarter 4)''
(Dec. 18, 2024), https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q4.xlsx.
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C. Changes to Filing Requirements for Asylum Applications

DHS proposes to codify in regulation changes to the filing
requirements for asylum applications to streamline the intake,
processing, and adjudication of cases pending before USCIS. The
proposed 8 CFR 208.3(c)(3) has been updated 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. Currently, 8 CFR 208.3(c)(3) states that an asylum
application is incomplete if it does not include a response to each
question on the Form I-589, is unsigned, or is unaccompanied by the
required materials specified in 8 CFR 208.3(a)(1) (i.e., the Form I-
589, supporting evidence, and additional copies of the Form I-589 for
each dependent family member). Further, the current regulation states
that an incomplete application will not commence the EAD clock and that
USCIS will return it to the alien within 30 days. 8 CFR 208.3(c)(3).
However, if USCIS fails to return an incomplete application within 30
days, the application will automatically be deemed complete and
accepted for adjudication. Id.
In order to facilitate the alignment of affirmative asylum
applications with the general requirements for filing benefit requests
with USCIS, the proposed rule specifies, in part, that an asylum
application filed with USCIS must be properly filed in accordance with
8 CFR 103.2 and the form instructions and that USCIS will record the
receipt date of the application in accordance with 8 CFR 103.2(a)(7).
The proposed rule also specifies that the receipt date will begin the
waiting period for an EAD. Similar to the movement from the 180-day
Asylum EAD Clock to the 365-calendar day wait, this change eliminates
another decision point for the agency in order to preserve finite
government resources. Rather than have the commencement of the waiting
period be another question needing adjudication, this change would
automate it.
The regulation as proposed states that an application that is not
filed in accordance with 8 CFR 103.2 and the form instructions would be
deemed incomplete, then subsequently rejected and returned to the
applicant within 30 days. 8 CFR 103.2 and form instructions for Form I-
589, Application for Asylum and for Withholding of Removal clearly
explain the requirements for a complete form. 8 CFR 103.2 requires that
every form submitted to DHS be in accordance with the form
instructions, and the instructions for Form I-589, Application for
Asylum and for Withholding of Removal require that the alien answer all
questions on the form. Additionally, 8 CFR 103.2 and the form
instructions require a signature on the form. 8 CFR 103.2 clarifies
that this signature may be the alien, or the alien's parent or legal
guardian if the alien is under 14 years of age or is unable to sign due
to mental incompetence. Finally, Form I-589 form instructions require
that the alien submit ``reasonably available corroborative evidence''
to support the claim and other required materials, including a copy of
identity documents. USCIS is currently under an obligation to return
incomplete asylum applications to the alien within 30 days of the
receipt of the application. Since 2023, USCIS has rejected 9.44% of
submitted asylum applications solely due to a form deficiency, meaning
that a required field on the form was not completed.\248\ Over the same
time, USCIS has rejected an additional 11% of submitted applications
for having multiple defects, one of which included a missing required
field.\249\ This rule's added clarity that asylum applicants must
properly fill out their forms would decrease the percentage of rejected
asylum applications and increase the quality of asylum applications
received by the agency.
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\248\ USCIS analysis of internal OIDP data on the number of
Forms I-589 rejected (coded solely ``R-42'') at intake due to
incomplete applications, May 28, 2025.
\249\ Id.
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Currently, if USCIS fails to return an incomplete application
within 30 days, the application will automatically be deemed complete
and accepted for adjudication. This current requirement is burdensome
on USCIS because it places an adjudication obligation on USCIS where an
alien files an incomplete application. The 30-day provision is also
inconsistent with how all other applications and petitions for
immigration benefits are treated, and it creates an arbitrary
circumstance for treating a potentially incomplete asylum application
as complete. In fact, Form I-589 is the only USCIS form that the agency
is required to accept, even if it is incomplete, simply because more
than 30 days have passed since receipt. This disparity in treatment
creates an opportunity for frivolous, fraudulent, or otherwise
meritless applications to exploit the asylum process from the start and
add to the massive affirmative asylum backlog. Additionally, asylum
officers must obtain the omitted information during asylum interviews
expending scarce resources on basic information gathering simply
because an alien chose not to provide such information at the time of
filing. Therefore, the proposed regulations would treat asylum
applications like all other applications received and adjudicated by
USCIS, meaning that after the effective date of this rule incomplete
asylum applications would not be deemed complete even if USCIS does not
return a rejected application within 30 days of receipt. An alien
should consider the filing date on their receipt notice as beginning
the 365-day waiting period. If an application is subsequently rejected
as incomplete and returned to the applicant, the 365-day waiting period
will start over when the application is resubmitted, accepted, and
receipted.
Finally, as discussed earlier, this regulation proposes to
substitute the 180-day Asylum EAD Clock with a straightforward 365
calendar-day waiting period. Thus, provisions regarding alien-caused
delays for the purposes of the 180-day Asylum EAD Clock would also be
stricken.

D. Processing Timeframe for (c)(8) EADs

Currently, USCIS is required to adjudicate initial (c)(8)
employment authorization applications within 30 days from when the
applicant files the Form I-765. 8 CFR 208.7(a)(1). This processing
timeframe was established more than 30 years ago (59 FR at 62299), at a
time when affirmative asylum and employment authorization application
receipts were significantly lower, biometrics were collected under a
different process, screening and vetting between different federal
agencies was

[[Page 8656]]

less complex, and the pending affirmative asylum caseload was nowhere
near its current number of close to 1.45 million pending asylum cases.
At the time the 30-day processing timeframe was implemented, the former
INS adjudicated EAD applications at local INS offices. Now, with the
explosive growth of applications, EAD applications are processed by
USCIS service centers. Another complicating factor in the processing of
applications for employment authorization is the increased concern for
fraud and national security threats that require more thorough and
complex vetting.
As discussed above in Section III.D, in 2015, as a result of the
massive growth in applications and increased wait times in processing,
plaintiffs in Rosario v. USCIS brought a class action to compel USCIS
to comply with the 30-day processing timeframe required under 8 CFR
208.7(a)(1).\250\ On July 26, 2018, the district court enjoined USCIS
from further failing to adhere to the 30-day processing timeframe for
adjudicating (c)(8) EAD applications.\251\ Since the Rosario court
order, USCIS has redistributed its adjudicative resources to comply
with the 30-day processing requirement. Furthermore, USCIS is required
to utilize overtime in order to even come close to compliance with the
30-day processing time, offering cross-training to officers working
other benefit types, reassigning officers from other benefit types such
as TPS and EAD renewals, and assigning officers to work (c)(8) initials
as a part-time assignment in addition to their normal caseloads. There
have been continued efforts to comply with the court order, but this
time and resource burden has placed significant strain on already
limited agency resources. Applications for initial (c)(8) EADs were
until recently free to file, and while this was offset by increased
fees for other services,\252\ this immense (c)(8) EAD 30-day processing
burden still fell directly to the agency. The full-time equivalent
hours needed to maintain substantial compliance with the 30-day
processing time has grown by over 16 times since the Rosario
settlement. By way of comparison, at the time of the Rosario settlement
the adjudication of monthly incoming (c)(8) initial applications
required the equivalent of 50 fulltime employees to maintain compliance
with incoming receipts. By March 2025, the equivalent of more than 800
fulltime employee equivalents was required to maintain compliance due
to the significant increase of incoming monthly receipts. This massive
increase creates an obvious strain on finite operational resources and
necessitates cross-training, utilizing overtime, and pulling resources
from other workloads in the increasingly arduous burden to attempt to
maintain substantial compliance with the 30-day processing requirement.
This is equivalent to approximately 20 percent of all immigration
services officers. By extending the 30-day processing timeframe to 180-
days, these resources could be reallocated, potentially reducing delays
in processing other benefit requests. Extension of the 30-day
processing timeframe to 180-days for initial applications for
employment authorization filed on or after the effective date of the
final rule would increase agency flexibility in allocating resources,
determining caseload priorities, and implementing new vetting processes
as needed.
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\250\ Rosario, 365 F. Supp. 3d. 1156. The plaintiffs in Rosario
also sought to compel USCIS to comply with the 90-day rule for
(c)(8) renewals based on the EAD adjudicative timeframe in 8 CFR
274a.13(d). USCIS' failure to comply with either the 30-day
timeframe for initial (c)(8) EAD applications or the 90-day
timeframe for (c)(8) renewals meant USCIS should have issued interim
employment authorization under (then current) 8 CFR 274a.13(d)
(2015).
\251\ Id.
\252\ U.S. Citizenship and Immigration Services Fee Schedule and
Changes to Certain Other Immigration Benefit Request Requirements,
89 FR 6194, 62172-73 (Jan. 31, 2024).
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Due to these resource constraints and vetting needs, DHS has
considered changing its processing timeframes for (c)(8)-based
employment authorization applications and is now proposing to extend
the processing timeframe for initial (c)(8) EAD applications from 30 to
180 days to allow for adequate review time. It should be noted that
while DHS adjudicates employment authorization applications for dozens
of EAD categories, the (c)(8) employment authorization category is the
only category with an adjudication clock; unfortunately, the (c)(8)
category is the highest volume EAD category. In fact, in FY 2025 Q1,
USCIS received 387,015 applications for employment authorization based
on a pending asylum application.\253\ The second closest category for
incoming receipts in FY 2025 Q1 was (c)(11), employment authorization
for public interest parolees, with 135,274 applications for employment
authorization.\254\ Based on FY 2025 Q1 data, incoming receipts in the
(c)(8) EAD category were more than double that of the next largest
volume EAD category. The overwhelming scale of (c)(8) EAD application
receipts, coupled with a need for upgraded approaches to process
integrity and vetting, warrant an extension of the (c)(8) EAD
application processing timeframe. DHS believes that an increase from
the 30 days to 180 days for processing will provide EAD adjudicators
with adequate time to conduct background checks and thoroughly vet
aliens as provided for in this proposed rulemaking. DHS also believes
that increasing the processing timeframe to 180 days provides the
agency with a significant buffer for potential surges in asylum
receipts. Therefore, DHS proposes to codify in regulation that it will
extend the processing timeframe from 30 to 180 days for initial
employment authorization applications filed on or after the effective
date of the final rule.
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\253\ USCIS, ``Form I-765, Application for Employment
Authorization Counts of Pending Applications by Days Pending and by
filing type for All Eligibility Categories and (c)(8) Pending Asylum
Category (Fiscal Year 2025, Quarter 1)'' (Apr. 30, 2025), https://www.uscis.gov/sites/default/files/document/data/i765_p_allcat_c08_fy2025_q1.xlsx.
\254\ Id.
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DHS understands that asylum applicants whose EAD applications were
pending prior to the effective date of the final rule may have been
relying on the 30-day processing timeframe. Therefore, for initial
applications for employment authorization received prior to the
effective date of the final rule, DHS would not change that processing
timeframe. This would allow USCIS the flexibility to quickly process
those applications that were pending prior to the rule's effective
date, understanding that these asylum applicants who may have relied
upon the 30-day processing time that existed at the time they filed
their (c)(8) EAD applications. Maintaining the 30-day processing
timeframe for aliens whose applications for employment authorization
based on pending asylum applications were pending prior to the
effective date of the final rule would also offer those aliens more
predictability in the adjudication of their applications.
For initial applications for employment authorization received on
or after the effective date of the final rule, DHS would extend the
processing timeframe from 30 to 180 days. DHS recognizes the reliance
interests of any alien who has filed an asylum application and is
waiting the current 150-days to file an application for employment
authorization and expecting a decision on his or her (c)(8) EAD
application within 30-days and who would be impacted by the changes in
this rulemaking, if finalized. Further, DHS understands that the
extension of a processing timeframe may create hardship and insecurity
for aliens who would prefer to have a shorter deadline

[[Page 8657]]

by which they can expect the adjudication of their work authorization.
However, DHS has determined that several other considerations
outweigh those reliance interests. Considering the enormous size of
this pending affirmative asylum caseload, the need to prevent
frivolous, fraudulent, or meritless filings and protect the integrity
of the immigration system, that this is the only EAD category with a
processing timeframe, the substantial amount of finite USCIS resources
taken up by this workstream, and the tendency of this workstream to
vary in number of receipts significantly over a very short period of
time, extension of the processing timeframe is the only feasible change
for USCIS. This processing timeframe extension to 180 days will provide
USCIS with sufficient time to schedule a biometrics collection,
adequately screen and vet, refer to ICE if necessary, and process
initial (c)(8) applications for employment authorization. Scheduling
biometrics collection and adequate screening and vetting, in addition
to referrals to ICE if derogatory information is discovered, takes more
than 30 days, and the extension of the processing timeframe to 180 days
will allow USCIS to more thoroughly review potential concerns and flag
issues that may prohibit an alien from receiving employment
authorization. This will reduce opportunities for fraud and protect
vital national security and public safety interests by denying those
with certain criminal or security concerns from accessing employment
authorization, further strengthening the integrity of the immigration
system. DHS believes the combination of multiple factors ultimately
outweigh the alien's expectation to receive employment authorization
within 30 days of applying, which include the need to adjudicate all
EAD applications in a timelier manner, requiring reallocation of
adjudicatory resources from the (c)(8) applications to other EAD
categories, to thoroughly vet aliens applying for employment
authorization, to refocus on the initial intention of the asylum
process, timely adjudication of an alien's request for asylum, and to
prioritize benefit integrity overall. Additionally, USCIS is not bound
to a set timeframe for adjudication of EAD applications in other
categories, and due to the extremely short turnaround to adjudicate
initial (c)(8) EAD applications, the other categories of EAD
applications have been deprioritized. Extending the processing
timeframe for initial (c)(8) EAD applications will allow USCIS to more
equitably distribute resources to process other employment
authorization applications and process all EAD applications in a more
efficient and timely manner.

E. Biometrics Requirements

The proposed rule requires all applicants for a (c)(8) EAD,
including applicants to renew a (c)(8) EAD, to submit biometrics.
Currently, DHS requires biometrics from asylum applicants in connection
with the asylum application,\255\ but has not had a routine biometrics
requirement for the (c)(8) EAD application. The continued absence of a
routine biometrics requirement will lead to complications and delays in
adjudicating the (c)(8) EAD application given the requirement for the
agency to identify aliens for aggravated felonies, along with the
additional proposed eligibility requirements discussed later in this
document.
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\255\ USCIS, DHS, ``Instructions for Application for Asylum and
for Withholding of Removal (Form I-589),'' OMB No. 1615-0067
(expires Sept. 30, 2027), https://www.uscis.gov/sites/default/files/document/forms/i-589instr.pdf (last updated Jan. 20, 2025).
---------------------------------------------------------------------------

To support the enhanced eligibility requirements that would be
added under this rule, the proposed provision at 8 CFR 208.7(a)(1)(i)
requires all applicants for a (c)(8) EAD to submit biometrics at a date
and time to be scheduled by USCIS. Consistent with its current
practices for applications and petitions with an associated biometrics
requirement, USCIS would issue a notice informing the (c)(8) EAD
applicant of the place and time of their ASC appointment.
For the (c)(8) population itself, the biometrics requirement would
resolve program integrity gaps for both the affirmative and defensive-
based asylum pathways. The (c)(8) employment authorization category has
a specific aggravated felony conviction bar under 8 CFR 208.7(a)(1).
While the Form I-589 on which the (c)(8) eligibility is reliant does
have a biometrics requirement that provides an avenue for criminal
history check results to be obtained and reviewed in order to apply the
aggravated felony conviction bar, the asylum EAD filing and approval
clock requirements introduce unintended disruptions to the availability
of this information. For both affirmative and defensive applicants,
unintended delays in scheduling biometrics appointments for the Form I-
589 frequently result in the alien accruing 150 and 180-days before
appearing at an Applicant Support Center. This results in the (c)(8)
application being adjudicated without biometric-based criminal history
check results and the intended application of the aggravated felony
conviction bar. In FY2024 the average amount of time between Form I-589
filing and completed biometrics collection was 96 days; in FY 2025 (YTD
through July 30, 2025) the average was 126 days.\256\ Operationally
this means some cases would be above those averages, other cases would
be lower. In general, however, Form I-589 is auto expedited when
scheduling ASC appointments; I-589s receive the first appointment
available. As with any USCIS form subject to biometrics collection,
aliens can self-reschedule their I-589 biometrics appointment twice on
USCIS' website. USCIS accepts reschedule requests via website, contact
center, or by contacting their local office; but each asylum office has
their own rescheduling policy. Further, for defensive asylum
applicants, the application of the aggravated felony conviction bar and
availability of biometric-based criminal history check results is
dependent on EOIR courts applying the clock stop codes to document the
alien's attendance at biometric appointments. For certain defensive
applicants, they do not attend an ASC appointment, fingerprint results
are not generated, but the clock accrual requirements are met and the
I-589 remains pending before EOIR. At present, without a (c)(8)
biometrics requirement, these cases must be decided without the benefit
of biometric-based criminal history check results and an incomplete
background check assessment for the aggravated felony conviction bar.
---------------------------------------------------------------------------

\256\ USCIS internal data, Immigration Records and Identity
Services, Form I-589 Biometrics Appointment Metrics, July 30, 2025.
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The new routine biometrics requirement will also benefit the U.S.
government by enabling DHS to know with greater certainty the identity
of aliens requesting EADs in connection with an asylum application and
allowing USCIS to detect any identity or fraud issues that may have
occurred between the 365-days when the asylum application was filed and
when the (c)(8) EAD can be filed. The biometrics requirement also will
allow DHS to conduct criminal history background checks for public
safety and national security. USCIS will use the alien's biometrics to
securely produce the EAD and properly vet the alien's criminal history
to determine if the alien warrants a favorable exercise of discretion.

[[Page 8658]]

F. Eligibility Requirements

As discussed elsewhere in this proposed rule, a (c)(8) EAD is not
an entitlement but is provided by the authority and within the
discretion of the Secretary. INA sec. 208(d)(2), 8 U.S.C. 1158(d)(2).
Since the (c)(8) EAD is explicitly tied to an application for asylum,
DHS proposes to codify in regulation that it will introduce additional
eligibility requirements for a (c)(8) EAD benefit that mirror many
baseline eligibility requirements for asylum, including the 1-year
filing deadline, criminal bars, and illegal entry such that those who
are ineligible for asylum are also rendered ineligible for an EAD.
These additional eligibility requirements are a departure from the
policy expressed in the 1994 asylum NPRM, which states that ``[t]he INS
will adjudicate these applications for employment authorization within
30 days of receipt, regardless of the merits of the underlying asylum
claim.'' 59 FR at 14780. In that NPRM, the INS determined that
decoupling the asylum application from the application for employment
authorization would discourage applicants from filing meritless asylum
applications solely to obtain employment authorization. At that time,
the INS believed that all applicants would have work authorization
after 180 days unless their asylum claims were denied. The INS also
believed that delaying pending asylum applicants' ability to apply for
employment authorization would allow the agency to gain better control
over growing backlogs and processing times. Now, DHS has determined
that recoupling these applications by implementing stronger eligibility
requirements is necessary to achieve those same results. The departure
from the 1994 NPRM is necessary and appropriate for multiple reasons:
the huge pending affirmative asylum caseload of 1.45 million, the sheer
scope and complexity of the frivolous, fraudulent, and meritless asylum
filings has increased, and the continually growing number of (c)(8) EAD
applications that currently unduly burdens USCIS operations. As
discussed thoroughly in the overview of reform efforts above, DHS
believes that the high number of asylum applications and corresponding
(c)(8) EAD applications is made up, in part, of frivolous, fraudulent,
or otherwise meritless filings. Thus, DHS believes that introducing
certain eligibility requirements will help curb filings of meritless
asylum applications and allow USCIS to better address current pending
applications in a timely and orderly manner, and--most significantly--
will only limit access to EADs for aliens who would not ultimately be
eligible for asylum.
Finally, DHS acknowledges that requiring EAD adjudicators to
consider new eligibility requirements that are also analyzed in the
asylum interview will likely increase the time needed to process (c)(8)
employment authorization applications and could be viewed as
contradictory to stated efficiency goals. However, DHS expects that
implementing these new eligibility requirements will help the
department achieve the desired effect of more efficiently identifying
and adjudicating meritless cases and national security or public safety
concerns. In the long run, achieving these goals will also help DHS
increase efficiency in adjudications.
1. One-Year Filing Deadline
DHS proposes to codify in regulation that it will generally deny
requests for (c)(8) EAD applications by aliens who have not
demonstrated that they filed their asylum application in accordance
with the 1-year filing deadline, as described in 8 CFR 208.4(a)(2).
With the passage of IIRIRA, Congress added three categorical
statutory bars to applying for asylum. Public Law 104-208, div. C, sec.
604(a), 110 Stat. 3009, 3009-691; INA sec. 208(a)(2), 8 U.S.C.
1158(a)(2). Aliens who failed to apply for asylum within 1 year of
arriving in the United States are subject to a bar to applying for
asylum, unless they can demonstrate that there are changed
circumstances materially affecting the alien's eligibility for asylum
or extraordinary circumstances directly related to the failure to meet
the 1-year filing deadline. INA sec. 208(a)(2)(B), (D), 8 U.S.C.
1158(a)(2)(B), (D). This bar is commonly known as the 1-year filing
deadline. Through statute, Congress specifically chose to promote
efficiency by prohibiting asylum applications filed more than 1 year
after entry. The 1-year time frame was contemplated by Congress as an
acceptable timeframe in which aliens should be able to secure legal
representation and seek asylum relief. In fact, Congress specifically
rejected other time frame proposals, like that of a 30-day asylum
application filing deadline, choosing instead to set a 1-year filing
deadline.\257\
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\257\ See H. Rept. 104-469 (1995); Philip G. Schrag, et al.,
``Rejecting Refugees: Homeland Security's Administration of the One-
Year Bar to Asylum,'' 52 Wm. & Mary L. Rev. 651 (2010), pp. 669-672,
https://scholarship.law.wm.edu/wmlr/vol52/iss3/2/.
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Despite this prohibition, both DHS and EOIR adjudicate asylum
applications filed by aliens who reside in the United States for years
before applying for asylum. As of May 14, 2025, approximately 520,964
pending affirmative asylum applicants filed their Form I-589 between 1
year and over 10 years after entry. As of July 30, 2025, approximately
97,452 affirmative asylum cases filed between 1 year and over 10 years
after entry were granted and 274,633 cases filed with the same
timeframe were referred or denied. 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 (overstays), or
who entered without inspection and admission or parole.\258\
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\258\ Noah Schofield and Amanda Yap, Office of Homeland Security
Statistics, ``Asylees: 2023'' (Oct. 2024), at 3, https://ohss.dhs.gov/sites/default/files/2024-10/2024_1002_ohss_asylees_fy2023.pdf (From 2014-2023 (``about 79
percent of affirmative asylum applicants self-reported the status in
which they entered the United States before applying for asylum. Of
those who provided a response, 32 percent reported having entered on
B-2 visas (tourists), 25 percent reported having entered without
inspection (EWI, i.e., having been unauthorized), and 5.8 percent
reported having entered on B-1 visas (temporary business
visitors).'').
---------------------------------------------------------------------------

As mentioned throughout, there is a record of close to 1.45 million
pending affirmative asylum cases in USCIS' pending affirmative asylum
caseload. USCIS is under great strain to adjudicate these cases, and
the average processing time for an affirmative asylum case is 1,287
days. Due to how long it can take to adjudicate an affirmative asylum
application, and because of the significant disparity in the
eligibility requirements between an asylum application and a (c)(8)
EAD, there is little to dissuade an alien from filing an asylum
application for the sole purpose of obtaining employment authorization,
even when an alien is statutorily ineligible for asylum or there is
minimal likelihood that asylum would be granted.
USCIS has also attempted to reduce the affirmative asylum backlog
in other ways. For example, a contributing factor to the asylum backlog
is an increase in the number of aliens who file skeletal or meritless
asylum applications affirmatively to seek a referral to the immigration
court by an asylum officer. Once placed in removal proceedings in the
immigration court, the alien can apply for cancellation of removal
(COR) \259\--a form of relief from removal resulting in lawful
permanent residence available to those who have at least 10 years of
physical presence in the United

[[Page 8659]]

States and who meet additional eligibility criteria.\260\
---------------------------------------------------------------------------

\259\ Internal USCIS Memo--Procedures for Notice of Evidence of
Untimely Filing and Optional Waiver of Asylum Interview.
\260\ See generally, INA sec. 240A(b), 8 U.S.C. 1229b.
---------------------------------------------------------------------------

As mentioned throughout, there is a record of close to 1.45 million
pending affirmative asylum cases, and USCIS is under great strain to
adjudicate these cases, and the average processing time for an
affirmative asylum case is 1,287 days. Due to how long it can take to
adjudicate an affirmative asylum application, and because of the
significant disparity in the eligibility requirements between an asylum
application and a (c)(8) EAD, there is little to dissuade an alien from
filing an asylum application for the sole purpose of obtaining
employment authorization, even when an alien is statutorily ineligible
for asylum or there is minimal likelihood that asylum would be granted.
With the passage of IIRIRA, Congress added three categorical
statutory bars to applying for asylum. Public Law 104-208, div. C, sec.
604(a), 110 Stat. 3009, 3009-691; INA sec. 208(a)(2), 8 U.S.C.
1158(a)(2). Aliens who failed to apply for asylum within 1 year of
arriving in the United States are subject to a bar to applying for
asylum, unless they can demonstrate that there are changed
circumstances materially affecting the alien's eligibility for asylum
or extraordinary circumstances directly related to the failure to meet
the 1-year filing deadline. INA sec. 208(a)(2)(B), (D), 8 U.S.C.
1158(a)(2)(B), (D). This bar is commonly known as the 1-year filing
deadline. Through statute, Congress specifically chose to promote
efficiency by prohibiting asylum applications filed more than 1 year
after entry. The 1-year time frame was contemplated by Congress as an
acceptable timeframe in which aliens should be able to secure legal
representation and seek asylum relief. In fact, Congress specifically
rejected other time frame proposals, like that of a 30-day asylum
application filing deadline, choosing instead to set a 1-year filing
deadline.\261\
---------------------------------------------------------------------------

\261\ See H. Rept. 104-469 (1995); Philip G. Schrag, et al.,
``Rejecting Refugees: Homeland Security's Administration of the One-
Year Bar to Asylum,'' 52 Wm. & Mary L. Rev. 651, 669-72 (2010),
https://scholarship.law.wm.edu/wmlr/vol52/iss3/2/.
---------------------------------------------------------------------------

DHS has attempted to address asylum applications filed outside of
the 1-year filing deadline by seeking to reduce asylum filings that are
intended to result in removal proceedings for the purpose of seeking
COR. In 2018, the Asylum Division began issuing Untimely Filing notices
to asylum applicants with over 10 years of physical presence, allowing
aliens to waive their asylum interview and be referred to immigration
court. In FY 2023, the Asylum Division formalized these procedures
concerning late-filed cases and continues to offer aliens the
opportunity to waive the asylum interview and be referred to
immigration court based on the 1-year filing deadline.\262\ In February
2025, the Asylum Division centralized at the Asylum Vetting Center the
issuance of all interview waiver notices for these late-filed cases and
the referral to immigration court of aliens who accepted the interview
waiver. As of April 9, 2025, USCIS estimates that approximately 82,700
pending cases have been filed by aliens who were living in the United
States for at least 10 years at the time of filing their asylum
application. In FY 2025 Q1, USCIS offered interview waivers to 2,957
applicants; 8 percent accepted the offer. In the past 5 fiscal years,
including FY 2025 Q1, approximately 18 percent of aliens who were
offered the opportunity to waive their interview accepted the offer.
With this low rate of interview waivers offered and accepted, there has
not been significant impact on the asylum backlog or on the rate of
affirmative asylum application filings.
---------------------------------------------------------------------------

\262\ Internal USCIS Memo--Procedures for Notice of Evidence of
Untimely Filing and Optional Waiver of Asylum Interview.
---------------------------------------------------------------------------

To curb the pull-factor of employment authorization for those who
have been present in the United States for more than 1 year, DHS
proposes to codify in regulation an ineligibility ground for (c)(8) EAD
applications based on the application of the 1-year filing deadline for
asylum applications. This provision would reduce the asylum influx of
applications by disincentivizing aliens to file meritless asylum
applications for the sole purpose of obtaining employment
authorization. As Congress determined, absent changed or extraordinary
circumstances, the statutory 1-year filing period is a sufficient
period of time for aliens with meritorious asylum claims to submit
their application to USCIS or an IJ.\263\ DHS proposes to codify in
regulation that it will apply the one-year filing deadline 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
1-year filing deadline.
---------------------------------------------------------------------------

\263\ See, IIRIRA, Public Law 104-208, div. C, sec. 604(a), 110
Stat. 3009, 3009-691. INA sec. 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B).
---------------------------------------------------------------------------

DHS is also proposing to allow two very limited exceptions to the 1
year-filing deadline as it relates to eligibility for a (c)(8) EAD.
First, the rule proposes to except aliens from the application of the
one-year bar to their (c)(8) EAD application for those who have
established an exception under section 208(a)(2)(D) of the INA, 8
U.S.C. 1158(a)(2)(D), as determined by an asylum officer or IJ. For
instance, there are situations where an asylum application is referred
to the IJ on its merits, but the asylum officer had determined that an
exception to the 1-year filing deadline bar applied. In a situation
such as this, while the asylum applicant's case is pending review
before the IJ, his or her application for employment authorization
would not be barred by the 1-year filing deadline because they meet the
exception.
Second, the rule proposes to codify the statutory exception to the
application of the 1-year bar for aliens whose applications were under
USCIS' initial jurisdiction because the alien was a UAC under 6 U.S.C.
279(g)(2).\264\ This provision also follows the Settlement Agreement in
J.O.P. v. U.S. Dept of Homeland Security, 8:19-cv-01944 (D. Md.)
(approved Nov. 25, 2024) (J.O.P. Settlement Agreement), under which the
statutory 1-year filing deadline does not apply if the alien is a class
member who was previously under USCIS' initial jurisdiction as a UAC
even if an IJ later found that the alien was no longer a UAC.
---------------------------------------------------------------------------

\264\ INA sec. 208(a)(2)(E), 8 U.S.C. 1158(a)(2)(E).
---------------------------------------------------------------------------

2. Criminal Bars
In recent years, the United States has seen a massive influx of
migrants, requiring DHS to divert resources to address the high number
of migrant arrivals. The sharp increase of arriving migrants also
coincided with a sharp increase in U.S. Border Patrol criminal alien
arrests,\265\ which rose from 4,269 in FY 2019 and 2,438 in FY 2020 to
10,763 in FY 2021.\266\ In FY 2024, U.S. Border Patrol criminal alien
arrests reached a record high of 17,048, to include aliens with
convictions for offenses such as driving under the influence; assault,
battery, domestic violence; illegal drug possession, trafficking; and
illegal entry or re-entry.\267\
---------------------------------------------------------------------------

\265\ ``Criminal alien'' is a term used by CBP to refer to
individuals who have been convicted of one or more crimes, whether
in the United States or abroad, prior to interdiction by the U.S.
Border Patrol; it does not include convictions for conduct that is
not deemed criminal by the United States. See CBP, ``CBP Criminal
Alien Statistics,'' https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/criminal-noncitizen-statistics (last updated
May 12, 2025).
\266\ CBP, ``CBP Criminal Alien Statistics,'' https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/criminal-noncitizen-statistics (last updated May 12, 2025).
\267\ Id.
---------------------------------------------------------------------------

Under current regulations, aliens who have been convicted of an
aggravated felony are ineligible for a (c)(8) EAD.

[[Page 8660]]

However, there are currently no other criminal bars to (c)(8) EAD
eligibility. With growing numbers of migrants and the parallel increase
of criminal alien arrests, DHS must prioritize the safety and security
of the American people over providing a discretionary benefit to aliens
in general, but in particular to aliens who are statutorily ineligible
for the underlying benefit. This rule will prioritize the safety and
security of the American people by disincentivizing illegal migration
and criminal conduct for aliens who would like to obtain employment
authorization. It logically follows that aliens who are barred from a
grant of asylum due to criminal conduct should not be issued an EAD
because of the asylum backlog or USCIS processing times. There are
multiple reasons for this; first, the (c)(8) EAD is discretionary, and
the Secretary does not want to favorably exercise discretion for such
criminal aliens. Second, the criminal conduct is sufficiently serious
to bar them from a grant of asylum, so it is incongruous to reward such
an alien with an interim benefit like employment authorization. There
is no analogous situation to this one among other USCIS benefit
requests. Third, the historical practice of granting interim benefits
for aliens who are not eligible for the primary or status-impacting
benefit (in this case, asylum) has effectively incentivized frivolous,
fraudulent, and otherwise meritless asylum filings.
Given the high volume of asylum filings, as well as the frivolous,
fraudulent, and otherwise meritless filings, it follows that employment
authorization associated with a pending asylum application should be
curtailed, and this is the policy position of the Department. However,
considering the sharp increase in encounters of aliens with criminal
convictions, the current regulations definitively create an environment
where criminal aliens receive the discretionary benefit of (c)(8) EAD
despite the fact that they pose a risk to the national security and
public safety of the United States and, for that reason, ultimately are
not eligible for asylum.
When denying or referring an asylum application, USCIS does not
always accurately record the specific reason for the denial or
referral. For example, USCIS data may show denials based on ``criminal
record'' but not ``aggravated felony'' or ``particularly serious
crime.'' \268\ Further, even where USCIS data tracks an option for
specific grounds such as ``persecutor bar'' or ``security risk bar'' it
does not seem that asylum officers consistently enter that data at
adjudication. Instead, reviewing the data shows asylum officers record
a determination that the alien was ``not eligible'' for asylum, since
that is the only specific category of denials that is consistent year-
over-year. In one example, there were zero denials based on the ``firm
resettlement bar'' grounds from FY2015 to FY2019, then there was one
such denial in FY2020, and then from FY2021 to FY2025 (to May 22, 2025)
between 34 and 184 such denials each year. Additionally, from FY2015 to
FY2025, USCIS data recorded only one single asylum application denial
based on failure to appear for biometrics collection (one case from
FY2015) and with asylum application volumes as high as they are, more
than one alien in the last ten FYs would likely have failed to appear
for a biometrics collection (e.g., lost mail, neglected to update
mailing address with USCIS, etc.). For all of these reasons, USCIS
believes there is a concern here with incomplete data when recording
the specific grounds for denying or referring an asylum application.
However, DHS previously established that in FY2015, USCIS issued 15,515
denials or referrals to asylum applicants, but only 4,578 (29.5%) had
one or more previously approved (c)(8) EAD.\269\ However, by FY2023,
USCIS issued 5,963 denials or referrals to asylum applicants, and 4,351
(72%) had one or more previously approved (c)(8) EAD.\270\ In FY2024,
USCIS issued 5,709 denials or referrals to asylum applicants, but 5,087
(89%) had one or more previously approved (c)(8) EAD.\271\ In FY2025
(through May 22, 2025), USCIS issued 11,872 denials or referrals to
asylum applicants, and 9,475 (79.8%) had one or more previously
approved (c)(8) EAD.\272\ As such, the population impacted by this
proposed change (aliens with one or more approved (c)(8) EADs who then
has their asylum applications denied) as a percentage of overall
denials is clearly increasing. While DHS data cannot conclusively
establish at this time how many of those aliens were denied
specifically because they posed a risk to the national security and
public safety of the United States, what is of paramount importance in
supporting this proposed rule, is that ultimately those aliens received
a (c)(8) EAD despite being ineligible for asylum (regardless of the
specific grounds).
---------------------------------------------------------------------------

\268\ USCIS OPQ DATA, ``By Fiscal Year, Data Type, and Deny/
Referral Reasons'' (May 22, 2025),
\269\ Id.
\270\ Id.
\271\ Id.
\272\ Id.
---------------------------------------------------------------------------

For all of these reasons, DHS proposes codify in regulation
additional ineligibility grounds for the (c)(8) EAD including criminal
bars to asylum under sections 208(b)(2)(A)(ii)-(iii). In addition to
excluding from (c)(8) EAD eligibility any alien who has been convicted
of an aggravated felony as described by section 101(a)(43) of the INA,
DHS proposes to codify in regulation a bar for any alien who has been
convicted of a particularly serious crime and any alien for whom there
are serious reasons to believe that he or she committed a serious non-
political crime outside of the United States. In doing so, DHS will
emphasize the importance of public safety and national security of the
United States, by safeguarding the American people and restoring
integrity to the discretionary benefit of applications for (c)(8) EADs.
3. Illegal Entry
Encounters by CBP have reached record numbers in the last few
years: CBP reported approximately 3.2 million enforcement actions at
U.S. borders, airports, and seaports in FY 2023, and 2.9 million
enforcement actions in FY 2024.\273\ On January 20, 2025, the President
issued E.O. 14165, Securing Our Borders, stating that millions of
aliens from nations and regions all around the world entered the United
States illegally, posing a significant threat to the public safety and
national security of the United States. The surging migrant encounters
between 2022 and 2023 led to burgeoning asylum application filings.
---------------------------------------------------------------------------

\273\ CBP, ``CBP Enforcement Statistics,'' https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics (last updated May 12,
2025); see also ``CBP Nationwide Encounters'', https://www.cbp.gov/newsroom/stats/nationwide-encounters. These figures include title 8
apprehensions or inadmissible aliens processed under CBP's
immigration authorities, and include individuals encountered at
ports of entry who sought lawful admissions but were determined to
be inadmissible. These figures also include title 42 expulsions by
U.S. Border Patrol (USBP) or the Office of Field Operations (OFO).
---------------------------------------------------------------------------

Although aliens in removal proceedings who intend to apply for
asylum must do so in immigration court as a defense to removal, many
aliens filed directly with USCIS instead. In fact, from 2022 to 2023,
the number of affirmative asylum filings nearly doubled from 241,280 to
456,750 applications, even though USCIS lacked jurisdiction over many
of these applications.\274\ The total number of

[[Page 8661]]

defensively filed asylum applications also nearly doubled from 2022 to
2023, from 260,830 to 488,620 applications.\275\ Not surprisingly, just
as asylum application filings have spiked, there has been a similarly
sharp spike in filings for initial (c)(8) EADs. For example, USCIS
received 262,869 initial (c)(8) EAD applications for the entirety of FY
2022. In FY 2023, that figure increased almost threefold to 802,753
initial (c)(8) EAD applications. The number of initial (c)(8) EAD
filings continues to grow. In the month of January 2025 alone, USCIS
received approximately 152,000 initial (c)(8) EAD applications.\276\ If
USCIS continues to receive initial (c)(8) EAD applications at the same
volume as January 2025, USCIS would record a historical high-watermark
for (c)(8) EAD applications in FY 2025 with 1.82 million applications.
These parallel increases in border encounters, asylum applications, and
initial (c)(8) EAD applications continue to clearly illustrate the
existence of the relationship between employment authorization and a
pending asylum application as a significant pull factor on illegal
migration to the United States. Aliens who illegally entered the United
States can become eligible to attain employment authorization in the
United States during the pendency of their asylum application, which,
due to a historic high of 1.45 million pending affirmative asylum
cases, may take years to adjudicate. This means that the current
regulations allow such aliens to access an ancillary benefit for years
even if they are ultimately found ineligible for asylum.
---------------------------------------------------------------------------

\274\ Noah Schofield and Amanda Yap, Office of Homeland Security
Statistics, ``Asylees: 2023'' (Oct. 2024), https://ohss.dhs.gov/sites/default/files/2024-10/2024_1002_ohss_asylees_fy2023.pdf. See
also USCIS, ``Asylum Division Monthly Statistics Report, Fiscal Year
2023, Oct. 2022 to Sept. 2023'' (Nov. 3, 2023), https://www.uscis.gov/sites/default/files/document/data/asylumfiscalyear2023todatestats_230930.xlsx.
\275\ Id.
\276\ USCIS Office of Performance and Quality.
---------------------------------------------------------------------------

DHS proposes disincentivizing illegal immigration by exercising its
discretion to codify in regulation that 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 ineligible to receive an initial
or renewal (c)(8) EAD. There would be limited exceptions if an alien
demonstrates that he or she, without delay but no later than 48 hours
after the entry or attempted entry, indicated to an immigration officer
an intention to apply for asylum or expressed to an immigration officer
a fear of persecution or torture; or otherwise had good cause for the
illegal entry or attempted entry. Examples of good cause justifications
for the illegal entry or attempted entry may include, but are not
limited to, requiring immediate medical attention or fleeing imminent
serious harm, but the rule would specifically state that good cause
does not include entering for the evasion of U.S. immigration officers,
to circumvent the orderly processing of asylum applicants at a U.S.
port of entry, or for convenience. A good cause justification could
also exist where an alien meets the definition of a victim of a severe
form of trafficking in persons as provided in 8 CFR 214.11(a).
Likewise, aliens who are, or who were determined at any time since
their most recent entry to be, UACs as defined in 6 U.S.C. 279(g)(2)
would be excepted from this proposed bar.
DHS does not believe this change could be considered 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
incorporation in the 1967 Protocol relating to the Status of Refugees,
because it is consistent with U.S. obligations under the 1967
Protocol.\277\ The 1951 Refugee Convention, developed in the wake of
World War II, serves as the basis for international refugee and asylum
law and defines the term ``refugee'' \278\ The United States was key in
its creation, and later acceded to the 1967 Refugee Protocol which
removed temporal and geographic limitations set by the 1951 Refugee
Convention.\279\ Article 31(1) of the 1951 Convention was written in
order to ensure that refugees could effectively access international
protection and to recognize that individuals fleeing persecution may
engage in irregular migration. While Article 31(1) states that the
alien must present themselves ``without delay'' and show ``good
cause,'' these phrases are not defined in the 1951 Convention or the
1967 Protocol, and are therefore open to interpretation. This proposed
change does not impact eligibility for the underlying asylum
application and expressly exempts aliens who present themselves without
delay, but no later than 48 hours after illegal entry, and 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. DHS
believes a 48-hour window for aliens to present themselves to
authorities after illegal entry is a reasonable amount of time to
provide. DHS has also provided examples of situations that may
constitute ``good cause'' for the purpose of this provision and has
purposely kept those broad to allow for discretion in considering the
alien's circumstances that led to illegal entry.
---------------------------------------------------------------------------

\277\ The United States is a party to the 1967 United Nations
Protocol Relating to the Status of Refugees, January 31, 1967, 19
U.S.T. 6223, 606 U.N.T.S. 268 (``Refugee Protocol''), which
incorporates Articles 2 through 34 of the 1951 Convention Relating
to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189
U.N.T.S. 150 (``Refugee Convention''). Article 31 of the Refugee
Convention instructs that contracting States ``shall not impose
penalties, on account of their illegal entry or presence,'' on
certain refugees ``provided the present themselves without delay to
the authorities and show good cause for their illegal entry or
presence.''
\278\ Convention Relating to the Status of Refugees (adopted
July 28, 1951, entered into force Apr. 22, 1954) 19 U.S.T. 6259, 189
U.N.T.S. 137 (``Refugee Convention'').
\279\ Protocol Relating to the Status of Refugees (adopted Jan.
31, 1967, entered into force Oct. 4, 1967) 19 U.S.T. 6223, 606
U.N.T.S. 267 (``Protocol'').
---------------------------------------------------------------------------

Likewise, aliens who are now, or who were determined at any time
since their most recent entry to be, UACs as defined in 6 U.S.C.
279(g)(2) would be excepted from this proposed bar.

G. Discretionary Decisions

The Secretary or the Attorney General may grant asylum to an alien
who has applied for asylum if the Secretary or the Attorney General
determines that the alien is a refugee.\280\ However, asylum may be
denied in the exercise of discretion to an alien, even those who
establish statutory eligibility for the relief.\281\ In exercising its
discretionary authority over asylum applications, DHS examines the
totality of the circumstances and all relevant factors to determine if
a favorable exercise of discretion is warranted. It is the alien's
burden to establish that a favorable exercise of discretion should be
applied.\282\
---------------------------------------------------------------------------

\280\ See INA sec. 208(b)(1), 8 U.S.C. 1158(b)(1) (providing
that the Attorney General and Secretary ``may'' grant asylum to
refugees); INA sec. 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A) (defining
``refugee'').
\281\ See INA secs. 208(b)(1) and 240(c)(4)(A)(ii); 8 U.S.C.
1158(b)(1) and 1229a(c)(4)(A)(ii).
\282\ See Matter of Shirdel, 19 I&N Dec. 33 (BIA 1984).
---------------------------------------------------------------------------

Currently, applications for employment authorization filed by
pending asylum applicants are not discretionary. 8 CFR 274a.14(a)(1).
Under the proposed rule, approval of an application for employment
authorization for asylum applicants would be at the discretion of
USCIS. As previously discussed, this rulemaking acknowledges USCIS'
past practices based on existing regulation and has provided
justifications and data throughout to support the change from mandatory
to discretionary approval of applications for (c)(8) EADs. The
Department's proposed change to make the approval of (c)(8) employment
authorization discretionary is intended to balance national security
and benefit integrity with providing an avenue for asylum applicants to
obtain

[[Page 8662]]

employment authorization. Similar to asylum, employment authorization
for asylum applicants is not mandatory, but rather a benefit that
Congress authorized and entrusted to the Secretary to administer. INA
208(d)(2), 8 U.S.C. 1158(d)(2). For (c)(8) employment authorization
applications as a whole, it is within the Secretary's discretion to
decide if employment authorization should be granted, and if so under
what terms. DHS has broad authority to establish and amend regulations
and to take other actions ``necessary for carrying out'' the
Secretary's authority to administer and enforce the immigration laws.
See INA sec. 103(a)(1) and (3), 8 U.S.C. 1103(a)(1) and (3) (granting
the Secretary the authority to establish regulations and take other
actions ``necessary for carrying out'' the Secretary's authority under
the immigration laws); see also 6 U.S.C. 202 (authorities of the
Secretary); Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 42 (1983) (emphasizing that agencies
``must be given ample latitude to adapt their rules and policies to the
demands of changing circumstances'' (quotation marks omitted)). The
current process and minimal criteria for obtaining (c)(8) employment
authorization have contributed to the growing caseload of employment
authorization applications and pending asylum applications because it
has incentivized aliens to file for asylum in order to obtain
employment authorization. As explained throughout this rulemaking, DHS
believes this reform and the others described in this rulemaking will
help improve the current asylum backlog by discouraging frivolous,
fraudulent, or otherwise meritless asylum filings that are filed for
the sole purpose of obtaining employment authorization. This will allow
USCIS to devote more of its resources to adjudicating backlog asylum
cases, thus helping to clear the way for meritorious asylum
applications to be received, processed, and adjudicated more quickly.

H. Recommended Approvals

DHS 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 208.7(a)(1) and 274a.12(c)(8). Before August 25,
2020, USCIS issued a recommended approval of asylum if an asylum
officer made a preliminary determination to grant asylum, but USCIS had
not received the results from the mandatory identity and background
checks.\283\ This allowed aliens with recommended approvals to be
eligible to obtain a (c)(8) EAD. Recipients of recommended approvals
did not fully complete the asylum adjudication process. As of August
25, 2020, USCIS stopped issuing recommended approvals as preliminary
decisions for affirmative asylum adjudications.\284\
---------------------------------------------------------------------------

\283\ USCIS, ``Affirmative Asylum Frequently Asked Questions,''
https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/affirmative-asylum-frequently-asked-questions (last updated Sept.
13, 2023).
\284\ Id.
---------------------------------------------------------------------------

DHS proposes to revise 8 CFR 208.7(a)(1) and 274a.12(c)(8)(ii) to
align with USCIS' current policy and practice and in furtherance of
E.O. 14159, Protecting the American People Against Invasion, and E.O.
14165, Securing Our Borders. E.O. 14159 directed the Secretary to
ensure that employment authorization is provided accorded to the
statute and is not provided to any unauthorized alien. E.O. 14165
directed the Secretary to deter and prevent the entry of illegal aliens
into the United States. The primary purpose of these executive orders
is to strengthen both the integrity of the immigration system and our
national security posture. Because recommended approvals, issued before
full screening and vetting has been completed, are in contradiction to
the provisions of these executive orders, DHS proposes to remove these
provisions from the regulations, codifying the current procedures.

I. Termination of Employment Authorization

As discussed above in Section III.C of this preamble, the OBBBA
established a range of fees related to immigration applications or
other actions. In addition, the OBBBA made isolated substantive changes
related to EADs.\285\ As relevant here, Congress established the
following parameters for when an alien's employment authorization based
on a pending asylum application, whether the initial or a renewed
authorization, terminates.\286\
---------------------------------------------------------------------------

\285\ See OBBBA, Title X, secs. 100003, 100010, 100011, and
100012.
\286\ Id. at 100011(b).
---------------------------------------------------------------------------

Accordingly, DHS is updating the provisions at 8 CFR 208.7 related
to the termination of pending asylum application-based EADs to match
the OBBBA. See proposed 8 CFR 208.7(c).\287\ Based on OBBBA, pending
asylum application-based employment authorization will terminate as
follows, even if the expiration date specified on the employment
authorization document has not been reached: (1) immediately following
the denial of an asylum application by an asylum officer, unless the
case is referred to an Immigration Judge; (2) on the date that is 30
days after the date on which an Immigration Judge denies an asylum
application, unless the alien makes a timely appeal to the Board of
Immigration Appeals; or (3) immediately following the denial or
dismissal by the Board of Immigration Appeals of an appeal of a denial
of an asylum application. Compared with the pre-OBBBA regulations, DHS
notes that aliens will no longer have a (c)(8) EAD during the pendency
of a petition for review in federal court.
---------------------------------------------------------------------------

\287\ DHS notes that although these changes are part of this
proposed rule given the connection to the rest of this rule's
provisions, the OBBBA, as an intervening statute, controls in the
interim until these changes are perfected in a final rule. See Nat'l
Family Planning & Reproductive Health Assn. v. Gonzales, 468 F.3d
826, 829 (D.C. Cir. 2006) (``a valid statute always prevails over a
conflicting regulation''); see also Farrell v. United States, 313
F.3d 1214, 1219 (9th Cir. 2002).
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As discussed throughout, benefit integrity is of utmost importance
to this Administration and DHS. In the current climate of record asylum
backlogs and lengthy asylum adjudication timelines, aliens are
incentivized to file frivolous, fraudulent, or otherwise meritless
asylum filings for the purpose of obtaining employment authorization.
Allowing an alien to maintain (c)(8) employment authorization for a
possibly lengthy period of time after the asylum application has been
denied is further incentivizing frivolous, fraudulent, or otherwise
meritless filings. By automatically terminating the (c)(8) EAD once the
asylum application has been denied by USCIS or the Immigration Judge,
or denied or dismissed by the Board of Immigration Appeals, DHS aims to
help ensure that the benefit of a (c)(8) EAD is reserved for aliens
with meritorious asylum claims, and that any extended employment
authorization period does not unduly reward aliens who are ultimately
found ineligible for asylum.
Asylum applications filed by a UAC must be processed according to
requirements established in the TVPRA, Public Law 110-457, 122 Stat.
5044, and the J.O.P. Settlement Agreement. Under the terms of the
J.O.P. Settlement Agreement, USCIS will not rely on any determination
by DOJ that an alien is not a UAC.\288\ Rather, USCIS exercises initial
jurisdiction over the adjudication of the UAC's asylum application and
renders its own jurisdictional

[[Page 8663]]

determination.\289\ Accordingly, UACs who have been denied asylum by an
IJ, the BIA, or a Federal court may still have a pending asylum
application before USCIS because USCIS retains initial jurisdiction
over asylum applications filed by UACs.\290\ Therefore, if a UAC's
asylum application remains pending before USCIS, which is the basis for
the alien's (c)(8) EAD, his or her (c)(8) EAD will not automatically
terminate even if his or her asylum application is denied by an IJ,
BIA, or a Federal court.
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\288\ J.O.P. v. U.S. Dept of Homeland Security, 8:19-cv-01944,
Part III.D. (D. Md.) (approved Nov. 25, 2024), https://www.ice.gov/doclib/legalNotice/jopSettlementAgreement.pdf.
\289\ J.O.P. v. U.S. Dept of Homeland Security, 8:19-cv-01944,
Part III.C.1. (D. Md.) (approved Nov. 25, 2024), https://www.ice.gov/doclib/legalNotice/jopSettlementAgreement.pdf.
\290\ William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008 (TVPRA), Public Law 110-457 (Section
235(d)(7)).
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J. Prioritizing the Adjudication of an Asylum Application Due to
Derogatory Information in the Form I-765 Adjudication

In furtherance of the effort to deter frivolous, fraudulent, or
otherwise meritless asylum filings for the sole purpose of obtaining
employment authorization, DHS proposes to codify in regulation the
authority to prioritize for adjudication an asylum application in which
derogatory information is encountered during any (c)(8) EAD
adjudications. For example, if USCIS discovers a national security risk
while conducting security checks on a (c)(8) employment authorization
applicant, USCIS may flag the corresponding asylum application so that
an asylum adjudicator may more rapidly schedule the case for an
interview and make a decision on the case. In conducting security
checks on renewal (c)(8) applicants, USCIS may discover new convictions
or arrests that warrant a prioritized asylum interview or adjudication.
For example, an asylum applicant may have had no arrest record at the
time he or she applied for asylum and received the initial EAD, but he
or she may have since been convicted of an aggravated felony. In that
instance, an EAD adjudicator could flag the case for the asylum office
with jurisdiction over the application, so that the interview and
adjudication could be prioritized. The outcome in both of these
examples is to more rapidly adjudicate cases where applicants present
risks and to reduce the time cases such as these linger in the backlog.
This significant change would allow the Department to quickly
identify and efficiently remove ineligible aliens who pose a national
security or public safety threat to the United States, while
simultaneously decreasing the pending applications in queue.
Additionally, as referenced throughout this NPRM, the caseload of
pending affirmative asylum applications has become an enormous burden
on DHS and has grown to more than 1.45 million as of the end of FY
2024.\291\ Alongside the growing pending affirmative asylum application
caseload is the accompanying number of (c)(8) EAD applications filed by
affirmative and defensive asylum applicants. Initial applications for
EADs based on pending asylum applications have steadily increased over
the years, with USCIS receiving 62,169 (c)(8) EAD applications in FY
2014, 261,793 (c)(8) EAD applications in FY 2017, and then seeing an
explosive jump to 802,753 (c)(8) EAD applications in FY 2023.\292\ In
FY 2024, USCIS received 1,200,533 initial (c)(8) EAD applications.\293\
In order to deter frivolous, fraudulent, or otherwise meritless asylum
claims, in 2018 DHS returned to a LIFO interview scheduling approach,
where DHS could refer recently filed meritless asylum applications
quickly and place those aliens into removal proceedings. Similarly,
this proposed provision will allow DHS to prioritize the completion of
meritless asylum applications in cases where derogatory information is
identified, allowing the Department to avoid adding to the
exponentially increasing asylum backlog. This change could lead to
slightly longer processing times for aliens without derogatory
information, but the Department believes any additional time would be
de minimis and notes that should not be the paramount concern,
especially since those aliens will still remain eligible to apply for
(c)(8) EADs. Rather, DHS is choosing to prioritize national security
and public safety and the reduction of backlogged cases for aliens who
filed frivolous, fraudulent, or otherwise meritless asylum
applications, as well as aliens who are simply ineligible for asylum.
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\291\ USCIS, ``All USCIS Application Petition Form Types (Fiscal
Year 2024, Quarter 4)'' (Dec. 18, 2024), https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q4.xlsx.
\292\ USCIS, ``Form I-765, Application for Employment
Authorization, Eligibility Category and Filing Type FY 2003-2022''
(Dec. 4, 2024), https://www.uscis.gov/sites/default/files/document/data/i765_rad_fy03-22_annualreport_update_20241202.xlsx; USCIS,
``Form I-765, Application for Employment Authorization, Eligibility
Category and Filing Type FY2023'' (Dec. 15, 2024), https://www.uscis.gov/sites/default/files/document/data/i-765_application_for_employment_fy23.pdf.
\293\ USCIS, ``Form I-765, Application for Employment
Authorization, Eligibility Category and Filing Type FY2024'' (Dec.
16, 2024), https://www.uscis.gov/sites/default/files/document/data/i765_application_for_employment_fy24.xlsx.
---------------------------------------------------------------------------

K. Corresponding DOJ Regulations

In 2003, 8 CFR 208.3 and 208.7 were duplicated in a new 8 CFR
Chapter V as part of the amendments to the regulations to reflect the
creation of the Department of Homeland Security and the transfer of
functions between DOJ and the new DHS. See 68 FR 9824, 9834 (Feb. 28,
2003). At the time, DOJ duplicated the entire Part 208 into the new
Part 1208 for EOIR because the provisions were ``so interrelated that
no simple division of jurisdiction is possible'' and stated that DOJ
expected the Departments to engage in further rulemaking to refine the
division of authorities at a later date. Id. 9826.
In 2020, EOIR amended the EOIR provision at 8 CFR 1208.3(c)(3)
regarding the form of an asylum application, including by removing the
reference to a 150-day waiting period for filing for employment
authorization, and reserved the EOIR provision at 8 CFR 1208.7
regarding employment authorization documents for asylum applicants. 85
FR 81698 (Dec. 16, 2020). However, as noted in section III.D.3.a of
this preamble, that rule was preliminarily enjoined. Nat'l Immigrant
Justice Ctr., Np. 21-56 (RBW). Accordingly, the currently effective
version of 8 CFR 1208.7 is no longer officially reserved. Nonetheless,
1208.7 and the reference to a 150-day wait for filing for employment
authorization at 1208.3(c)(3) do not have substantive effect because
DOJ has no authority to adjudicate employment authorization
applications. Cf. 85 FR 59692, 59696 (Sep. 23, 2020) (explaining DOJ's
decision to remove the specific time period after which asylum
applicants may file an application for employment authorization ``to
ensure that EOIR regulations do not contradict DHS regulations
regarding employment authorization eligibility,'' and to reserve 8 CFR
1208.7 because ``EOIR does not adjudicate applications for employment
authorization.'').
Accordingly, DHS recognizes that this rule would result in
inconsistencies between the DHS regulations at 8 CFR 208.3 and 8 CFR
208.7 and the DOJ regulations at 8 CFR 1208.3 and 8 CFR 1208.7.
Nevertheless, as of the effective date of this final rule, the revised
language of 8 CFR 208.3 and 8 CFR 208.7 would govern DHS and its
adjudications. DHS has been in consultation with DOJ on this
rulemaking, and DOJ may issue conforming changes at a later date.

[[Page 8664]]

VI. Statutory and Regulatory Requirements

A. Executive Orders 12866 (Regulatory Planning and Review), 13563
(Improving Regulation and Regulatory Review), and 14192 (Unleashing
Prosperity Through Deregulation)

E.O. 12866 (Regulatory Planning and Review) and 13563 (Improving
Regulation and Regulatory Review) 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.
Executive Order 13563 emphasizes the importance of quantifying costs
and benefits, reducing costs, harmonizing rules, and promoting
flexibility. Executive Order 14192 (Unleashing Prosperity Through
Deregulation) directs agencies to significantly reduce the private
expenditures required to comply with Federal regulations and provides
that ``any new incremental costs associated with the new regulations
shall, to the extent permitted by law be offset by the elimination of
existing costs associated with at least 10 prior regulations.''
The Office of Management and Budget (OMB) has designated this rule
a ``significant regulatory action'' that is economically significant as
defined under section 3(f)(1) of E.O. 12866. Accordingly, the rule has
been reviewed by OMB.
Additionally, this rule is not an Executive Order 14192 (see 5(a))
regulatory action because it is being issued with respect to an
immigration-related function of the United States. The rule's primary
direct purpose is to implement or interpret the immigration laws of the
United States (as described in INA sec. 101(a)(17), 8 U.S.C.
1101(a)(17)) or any other function performed by the U.S. Federal
Government with respect to aliens. See OMB Memorandum M-25-20,
``Guidance Implementing Section 3 of Executive Order 14192, titled
``Unleashing Prosperity Through Deregulation'' (Mar. 26, 2025).
The proposed rule would impact the administrative process for
issuance of EADs for aliens with a pending asylum application ((c)(8)
EAD), processing timeframe for (c)(8) EAD applications, waiting period
to apply for and receive a (c)(8) EAD, (c)(8) EAD validity period, and
eligibility requirements for (c)(8) EADs. The rule will require changes
to existing regulatory text and the creation of new regulatory text.
1. Summary of Proposed Provisions and Benefits and Costs Impacts
DHS expects that this proposed rule will generate substantial
benefits. The asylum system is overwhelmed, federal adjudications
resources are strained, and the affirmative asylum application backlog
serves as a magnet pulling aliens into the U.S. illegally. The surge in
both asylum filings and associated EADs over the past few years has
created an untenable situation. This proposed rule would benefit USCIS
by allowing it to operate under long-term, sustainable case processing
times for initial EAD applications for asylum applicants, to allow
sufficient time to address national security, public safety, or fraud
concerns, and to maintain technological advances in document production
and identity verification. Just as the 1994 INS rulemaking referenced
below, DHS expects that this action will reduce frivolous and
fraudulent asylum claims and perverse economic incentives to obtain an
EAD under meritless asylum claims. 59 FR 14779 (Mar. 30, 1994); 59 FR
62284 (Dec. 5, 1994). Frivolous, fraudulent, and meritless asylum
applications and related filings for employment authorization can serve
as a magnet for illegal immigration and generate costs to localities,
states, the national economy, and strain resources. DHS expects that
these changes would reduce confusion regarding EAD requirements for
aliens with pending asylum applications and the public, help ensure the
regulatory text reflects current DHS policy and more faithfully
implements the intent of the statute while simultaneously improving
program integrity. DHS cannot currently quantify all of the potential
benefits of this proposed rule.
In addition, if employers are able to hire American workers to fill
the jobs the asylum applicants would hold, the change in earnings to
such aliens would constitute beneficial wage and benefit transfers to
American workers and would potentially pose no productivity loss or
costs to employers. While it is possible that aliens without work
authorization could require assistance from their social and support
networks, which could include public entities, there could be a
counterbalance; as this rule potentially will reduce immigration, there
could be less of an economic strain on states, local government, and
non-governmental organizations, in terms of any public assistance and
resources that are currently provided to asylum applicants.
Furthermore, DHS anticipates this proposed rule would decrease illegal
migration and fraudulent claims for asylum applications and EADs.
Additional, unquantifiable benefits resulting from this proposed
rule include reduction and prevention of potential fraudulent cases,
providing consistency and clarity to aliens seeking asylum, and
streamlining the initial USCIS (c)(8) EAD request process for
sustainable case processing times. DHS cannot estimate these potential
indirect impacts (whether costs, benefits, transfers) or second order
effects and beyond, as they are beyond the scope of this analysis. This
rulemaking seeks to reduce frivolous, fraudulent, and meritless asylum
applications and their associated applications for (c)(8) EADs while
improving the administrative process for issuance of employment
authorization documents for aliens with meritorious asylum application
at USCIS.
Requiring aliens to submit biometrics for both initial and renewal
requests for employment authorization would enable DHS to vet an
alien's biometrics against government databases to determine if he or
she matched any criminal activity on file, to verify the alien's
identity, and to facilitate card production. In addition, biometrics
collection enables DHS to confirm that individuals are not utilizing
multiple identities or that multiple individuals are not utilizing one
identity. Lastly, from biometrics collection DHS would increase program
integrity by ensuring that only eligible aliens who continued to pursue
asylum were applying for and obtaining work authorization. This would
also generally provide a benefit for the public; in that it increases
transparency pertinent to application and filing requirements. As
discussed in the preamble, the asylum program has been subject to
identity fraud concerns historically.
The impacts of this proposed rule include both potential
distributional effects (which are transfers) and costs. The potential
distributional impacts fall on the asylum applicants who may be delayed
in entering the U.S. labor force or who may not obtain an EAD due to
being ineligible (e.g., aggravated felon, serious non-political crime,
etc.) or due to a processing pause. The potential distributional
impacts (transfers) would be in the form of lost opportunity to earn
compensation (wages and benefits). A portion of this lost compensation
might be transferred from asylum applicants to others that are
currently employed in the U.S. labor force, possibly in the form of
additional hours worked or overtime pay. A portion of the impacts of
this rule may also be borne by companies that would have

[[Page 8665]]

hired the asylum applicants had they been eligible for an EAD or in the
labor market earlier. However, if the affected employer were unable to
find available workers, these companies could incur a cost to
productivity and potential profit.
Companies may also incur opportunity costs by having to choose the
next best alternative to immediately filling the job the asylum
applicant would have filled. USCIS does not know what this next best
alternative may be for those companies. As a result, USCIS does not
know the portion of overall impacts of this rule that are transfers or
costs. If companies can find replacement labor for the position the
asylum applicant would have filled, this rule would have primarily
distributional effects in the form of transfers from asylum applicants
to others already in the labor market (or workers induced to return to
the labor market). USCIS acknowledges that there may be additional
opportunity costs to employers such as additional search costs.
However, if companies cannot find a reasonable substitute for the labor
an asylum applicant would have provided, the effect of this rule would
primarily be a cost to these companies through lost productivity and
profits.
USCIS uses the changes to earnings to asylum applicants as a
measure of the overall impact of the rule--either as distributional
impacts (transfers) or as a proxy for businesses' cost for lost
productivity. It does not include additional costs to businesses for
lost profits and opportunity costs or the distributional impacts for
those in an applicant's support network. The lost compensation to these
asylum applicants could range from $34.6 billion to $126.6 billion
annually (undiscounted) depending on the wages the asylum applicant
would have earned. The 5-year total discounted lost compensation to
asylum applicants at 3 percent could range from $155.4 billion to
$568.6 billion and at 7 percent could range from $135.5 billion to
$495.8 billion (FY 2025 through FY 2029).
The quantified estimates may be overstated, as they assume that
without this rule (i.e., under the baseline) the EAD validity period
would be longer than is currently permitted.\294\ Since USCIS has
reduced the maximum EAD validity for aliens with pending asylum
applications to 18 months, recipients must renew more often, which
could result in fewer pending asylum applicants authorized to work over
the 5-year period of analysis. This reduction would result from
attrition in renewal applications and more frequent vetting.
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\294\ Effective December 5, 2025, USCIS reduced the maximum EAD
validity period for aliens with pending asylum applications to 18
months. See USCIS, Policy Alert, ``Updating Certain Employment
Authorization Document Validity Periods'' (Dec. 4, 2025), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20251204-EmploymentAuthorizationValidity.pdf.
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There could be tax impacts pertinent to earnings changes. Asylum
applicants who could be delayed or precluded from obtaining an EAD may
generate forgone federal and state taxes. However, as was noted above,
the strain on resources that could be mitigated due to the effects of
this rule could counterbalance some or all of the tax losses, if there
are any. Additionally, if the earnings are transferred to American
workers, there may no loss of taxes.
This rule could possibly result in reduced opportunity costs to the
Federal Government. Since the Rosario court order, 365 F. Supp. 3d 1156
(W.D. Wash. 2018), compelled USCIS to comply with the 30-day processing
timeframe provision in FY 2018, USCIS has redistributed its
adjudication resources to work up to compliance. By extending the 30-
day processing timeframe to 180 days, it is possible that resources
could be reallocated, which could have the effect of reducing delays in
processing status-granting benefit requests, and avoiding costs
associated with hiring additional employees. However, there are many
factors that could influence such processing. Additionally, if asylum
filings decline, as this rule generates a disincentive to meritless
claims with the goal of obtaining an EAD, then the public and the
Federal Government could experience operational and cost efficiencies
as is pertinent to adjudicating less asylum claims. DHS does not rule
out that there could be resources allocated to other operational areas.
Table 4 provides a detailed summary of the regulatory changes and
the expected impacts of the proposed rule's provisions. USCIS estimates
the primary impact of the rule would result from a pause in accepting
all initial (c)(8) EADs applications until USCIS affirmative asylum
applications processing time reaches a 180-day average (estimated in
Module 1, below). Additionally, USCIS provides monetized impacts for
provisions that would affect EAD applicants (for initial and renewal
EADs) when the pause is lifted (estimated in Module 2, below). However,
USCIS does not include Module 2 in the total rule impact, because the
Module 1 impacts (pause EADs) accounts for impacts to all new EAD
applicants. To include Module 2 would be double counting the impacts
for the same population. Where a monetized figure is presented, it is
based on a 7 percent annualized average, and the annual population is
the midpoint of a high-low range.
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Consistent with OMB Circular A-4, Table 5 presents the prepared A-4
accounting statement showing the costs and transfers associated with
this proposed regulation. We calculate the midpoint between the minimum
estimate and maximum estimate as the primary estimate of this proposed
rulemaking.
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\295\ See Office of the Inspector General, DHS, OIG-16-130
``Potentially Ineligible Individuals Have Been Granted U.S.
Citizenship Because of Incomplete Fingerprint Records'' (Sept. 8,
2016), https://www.oig.dhs.gov/reports/2016-09/potentially-ineligible-individuals-have-been-granted-uscitizenship-because.
\296\ DHS caveats that the quantified estimates are currently
overstated due to the change in the maximum EAD validity period for
aliens with pending asylum applications to 18 months. USCIS will
consider the recent change and incorporate updates where appropriate
in the final rule to reflect this change.
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2. Background and Purpose
The proposed rule would impact the process for issuance of EADs for
aliens with a pending asylum application (c)(8) EAD, processing
timeframe for (c)(8) EAD applications, waiting period to apply for and
receive a (c)(8) EAD, (c)(8) EAD validity period, and eligibility
requirements for (c)(8) EADs. The rule will require changes to existing
regulatory text and the creation of new regulatory text.
The purpose of this proposed rulemaking is for DHS to be able to
balance its overall adjudication burdens with available resources by
ensuring that initial (c)(8) EAD filings are not creating incentives
for aliens to file frivolous, fraudulent, or otherwise meritless asylum
applications. Thus, this rule proposes to introduce a number of
additional provisions to help with the issues of benefit and program
integrity, national security, public safety, and resource strain at
USCIS. DHS expects the proposed changes would reduce confusion
regarding EAD requirements for aliens with pending asylum claims and
the public and help ensure the regulatory text reflects current DHS
policy and more faithfully implements the intent of the statute while
simultaneously improving program integrity.
3. Baseline and Population
The proposed rule will impact the process for issuance of
employment authorization documents for aliens with a pending asylum
application (c)(8) EAD, aliens with denied asylum claims who have a
valid EAD at the effective date of the final rule, processing timeframe
for (c)(8) EAD applications, waiting period to apply for and receive a
(c)(8) EAD, (c)(8) EAD validity period, and eligibility requirements
for (c)(8) EADs. The rule will require changes to existing regulatory
text and the creation of new regulatory text.
The baseline in this NPRM represents a world absent this proposed
regulation, which is a continuation of current policy and trends. The
impacts estimated in this RIA are relative to this baseline.
The population affected by this proposed rulemaking is the asylum
requesting population whose asylum applications are pending. While
their asylum applications are pending, this population can request
employment authorization, colloquially known as a (c)(8) EAD. For this
NPRM, to project a potential future (c)(8) EAD population we need to
account for any historical patterns. Table 6 presents the historical
perspective of the initial (c)(8) EAD population. On average we can see
that this population grew at about a 39.26 percent rate over the nine-
year span of period FY 2016 through FY 2024. One note is the growth
rates of FY 2022 through FY 2024 were higher than that of period FY
2016 through FY 2024. Excluding the high-growth years, over the five-
year period FY 2017 through FY 2021, the growth rate was 7.30 percent.
For this NPRM, we take this rate as the average longer term growth rate
of this population.
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DHS cannot predict whether the FY 2022 through FY 2024 growth rates
represent a structural change as immigration policies and other
conditions domestically and internationally could change and
potentially affect asylum applicants. Given this uncertainty, in
projecting a potential future (c)(8) EAD population we account for two
possibilities. We first project a scenario (``low scenario'' in Table
7) where we assume the levels of the high-growth years driven by unique
factors, policies, or some influence of both that would not continue
apace into the future. We also rely on a ``high scenario'' where the
high-growth years might constitute a sustainable change in trend. As
such, for the low scenario we take the FY 2021 (c)(8) EAD data point,
which is 214,565, then apply the assumed longer term growth rate of 7.3
percent to arrive at our first projected year, FY 2025 of Table 7. Then
we take the projected FY 2025 and repeat for the remaining projected
years. For the high scenario, we take the average of the high-growth
years, average of FY 2022 through FY 2024 in Table 6,\297\ which is
755,385, then apply the assumed longer term growth rate of 7.3 percent
to arrive at our first projected year, FY 2025. Then we take the
projected FY 2025 and repeat for the remaining projected years. Lastly,
we take the average of the low and high scenarios (the ``midpoint
scenario'' in Table 7) to arrive at a midpoint scenario population.
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\297\ DHS cannot accurately identify nor predict which
conditions specifically caused the population levels in recent
years. Given this uncertainty (i.e., not knowing which levels would
persist), we take the average of the outlier years as our starting
point in the projected high population scenario. Causal inference on
the `push' factors of world migration patterns is beyond the scope
of this rulemaking.
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Table 7 presents the projected baseline population for FY 2025
through FY 2029. We set our projection period to 5 years as we cannot
predict with certainty longer term trends given that immigration
policies and other conditions domestically and internationally could
rapidly change affecting aliens with pending asylum applications.

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The sub-population components pertinent to specific aspects of this
rulemaking will be presented in Section VI.A.6.
4. Wages and Opportunity Costs of Time
To monetize the impacts of this proposed rule, we need information
on potential wages that the baseline population could earn or
information on their opportunity cost of time. To estimate potential
earnings impacts, USCIS makes uses of U.S. Bureau of Labor Statistics
(BLS) data as follows. We will use the mean hourly wage for all
occupations of $31.48 as an upper bound and the 10th percentile wage of
$13.97 as a lower bound.\298\ For a more encompassing measure of
compensation, we will use a benefits multiplier of 1.45 applied to the
respective mean and 10th percentile wages, resulting in average hourly
total compensation rates of $45.65 and $20.26, respectively.\299\
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\298\ BLS, Occupational Employment Statistics, ``May 2023
National Occupational Employment and Wage Estimates,'' All
Occupations (00-0000), https://www.bls.gov/oes/2023/may/oes_nat.htm#00-0000 (last updated Apr. 3, 2024). The 10th, 25th,
75th, and 90th percentile wages are available in the downloadable
XLS file link.
\299\ Calculation: 1.45 (rounded) = Hourly Total compensation
($46.84) / Hourly Wages and Salaries ($32.25). Calculation: $31.48 x
1.45 = $45.65 (rounded). $13.97 x 1.45 = $20.26 (rounded). BLS,
Economic News Release, ``Employer Costs for Employee Compensation--
September 2024'' (Dec. 17, 2024), Table 2. Employer Costs for
Employee Compensation for civilian workers by occupation and
industry group, https://www.bls.gov/news.release/archives/ecec_12172024.pdf.
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As it relates to potential impacts to labor earnings, DHS also
estimates a potential tax effect. It is challenging to quantify income
tax impacts of employment in the labor market scenario because
individual tax situations vary widely, but DHS estimates the potential
contributory effects on 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).\300\ With both the employee and
employer paying their respective portion of Medicare and Social
Security taxes, the total estimated accretion in tax transfer payments
from employees and employers to Medicare and Social Security is 15.3
percent. DHS estimates the tax impacts on the unburdened earnings
basis. This is calculated by multiplying the earnings impact by the
employment tax rate of 15.3 percent, and dividing the resulting product
by the benefits burden multiple of 1.45. DHS is unable to quantify
other tax transfer payments, such as those applicable to Federal income
taxes and State and local taxes.
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\300\ 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,'' https://www.irs.gov/pub/irs-pdf/p15.pdf
for specific information on employment tax rates. See Quentin
Fottrell, MarketWatch, ``More Than 44% of Americans Pay No Federal
Income Tax'' (Aug. 28, 2019), https://www.marketwatch.com/story/81-million-americans-wont-pay-any-federal-income-taxes-this-year-heres-why-2018-04-16. Relevant calculation: (6.2 percent Social Security +
1.45 percent Medicare) x 2 employee and employer losses = 15.3
percent total estimated public tax impact.
---------------------------------------------------------------------------

5. Forms, Time Burdens, and Fees
Until recently, there were no fees associated with requesting
asylum or an initial (c)(8) EAD, and no biometrics collection
requirement associated with (c)(8) EAD applications. USCIS recently
implemented statutorily-mandated filing fees, including a $100 non-
waivable filing fee for the asylum application and $100 annual fee for
every year the applicant's asylum application is pending, as well as a
$550 non-waivable filing fee for the initial (c)(8) employment
authorization application.\301\ The proposed rule establishes a
biometrics collection applicable to (c)(8) EAD requests, but it is not
imposing a service fee via this rulemaking. DHS explained other impacts
linked to biometrics collection in the final section of this analysis.
This rulemaking proposes changes to the forms I-589 and I-765, forms
relevant to the baseline population. The current form burdens are 11
hours for Form I-589 and 4.38 hours for Form I-765.\302\ DHS estimates
that the future filing time for Form I-765 will be 4.72 hours. In the
impact estimates, DHS will rely on this projected burden, noting that
it represents the maximum impact. The

[[Page 8677]]

reason is that some aliens file electronically, and the burden for
electronic filings will be less, changing from 4.12 hours to 4.35
hours.\303\
---------------------------------------------------------------------------

\301\ See On Oct. 30, 2025, USCIS paused the implementation of
the annual asylum fee, as required by an order issued in in Asylum
Seeker Advocacy Project v. United States Citizenship and Immigration
Services, et al., SAG-25-03299 (D. Md.). That order does not affect
this rule. See Asylum Seekers Advocacy Project v. United States
Citizenship and Immigration Svcs., No. 25-03299 (D.Md. Oct. 30.
2025). Per statute, 50 percent of the asylum application fee is
credited to DHS. None of the annual fee revenue is credited to USCIS
and 25-percent of the (c)(8) employment authorization application
fees are credited to USCIS.
\302\ USCIS, DHS, ``Instructions for Application for Asylum and
for Withholding of Removal (Form I-589),'' OMB No. 1615-0067
(expires Sept. 30, 2027), https://www.uscis.gov/sites/default/files/document/forms/i-589instr.pdf (last updated Jan. 20, 2025); USCIS,
DHS, ``Instructions for Application for Employment Authorization
(Form I-765),'' OMB No. 1615-0040 (expires Sept. 30, 2027), https://www.uscis.gov/sites/default/files/document/forms/i-765instr.pdf
(last updated Jan. 20, 2025).
\303\ These burdens were updated for this rulemaking action and
were provided by the USCIS Paperwork Reduction Act (PRA) Branch
(Apr. 16, 2025).
---------------------------------------------------------------------------

In the impact estimates, DHS accounts for costs and cost-savings
applicable to changes involving filing for- and not filing for, an EAD,
but does not include the recent statutorily-mandated filing fees in
these estimates.
6. Monetized Impacts (Costs, Benefits, and Transfers)
a. Variables and Descriptions
In this section DHS develops, estimates, quantifies, and monetizes
potential economic impacts that could accrue to the proposed rule,
although not all impacts can be fully quantified. The primary effect
will be changes to labor compensation earnings that asylum applicants
who have obtained (c)(8) EADs could incur. The changes to earnings
would likely comprise delayed or forgone earnings to EAD holders;
however, some portion, or the totality of the aggregate earnings change
could also constitute transfers to American workers without
productivity loss to employers. DHS acknowledges that there would be
impacts applicable to (c)(8) renewal filings, but to scope the
analysis, we focus on the primary impact of an initial approved (c)(8)
EAD. At the time of this analysis, June 2025, an initial (c)(8) EAD is
authorized for five years, which is the main basis for the analysis
period.\304\ In addition to earnings impacts there could be tax impacts
as well as costs and cost-savings to asylum applicants not filing for
EADs in the future and changes to the form burden. These effects are
also quantified, to the extent possible.
---------------------------------------------------------------------------

\304\ As was noted in the above summary section above, DHS
recognizes that the current maximum EAD validity period for aliens
with pending asylum applications is 18 months, effective December 5,
2025, differs from the 5-year benchmark utilized herein, and that
the resulting quantified impacts applicable to this change would
also be impacted. DHS caveats that the quantified estimates are
currently overstated due to the change in the maximum EAD validity
period for aliens with pending asylum applications to 18 months.
USCIS will consider the recent change and incorporate updates where
appropriate in the final rule to reflect this change.
---------------------------------------------------------------------------

The monetized estimated impacts are developed in two modules.
Module 1 covers the impacts applicable to a pause in the issuance of
initial (c)(8) EADs until USCIS affirmative asylum applications
processing time reaches a 180-day average. Module 2 covers the
provisions related to EAD eligibility, ending some EADs early, and well
as the proposed changes to the (c)(8) filing time and process time
protocol. The changes to EAD eligibility requirements for initial
(c)(8) EAD applicants would become applicable only when the pause,
covered by Module 1, is lifted. The impacts are parsed this way to
avoid double counting, as an issuance pause would comprise the largest
impact and encompass any effects that could be incurred under an
issuance protocol (Module 2). There are numerous metrics and inputs
utilized in the analysis, and for the purpose of brevity, we will
utilize letter abbreviations for many, which will be introduced when
applicable.
To support the economic impact estimates for this proposed rule,
DHS analyzed data provided by the USCIS Office of Performance and
Quality. The data set links information on asylum filings with
concomitant (c)(8) EAD filings, comprising 2.26 million records for the
full period FY 2022 through FY 2024.\305\ It fully embodies USCIS
affirmative asylum data, and while it includes EAD data linked to
defensive asylum, data regarding defensive asylum outcomes are not
fully available, as DHS cannot concatenate such data between USCIS and
EOIR, at this time.
---------------------------------------------------------------------------

\305\ Data were provided by OPQ on Feb. 18, 2025, with
additional supplements on Feb. 25, 2025, and Mar. 12, 2025 (data
were obtained from and processed via USCIS Global, ELIS, SAS,
Databricks, and Tableau).
---------------------------------------------------------------------------

The population (POP) at its broad level is the total population of
initial (c)(8) EAD approvals, as denials would not be impacted. A first
phase of the analysis parses out and reports the specific populations
that the rule could impact, as is shown in Table 8. Under both Module 1
and 2 the broad population could be impacted, but there is an important
distinction in the manner in which the impacts are estimated. If there
is a pause in the issuance of initial (c)(8) EADs (i.e., Module 1), the
entire population, initial EAD filings for both pending affirmative and
defensive asylum would be impacted, as no pertinent individuals would
obtain an EAD. In contrast, when the pause is lifted (i.e., Module 2),
DHS assumes that initial (c)(8) EADs would be issued primarily for
pending defensive asylum applicants. This is because the pause is
lifted only when the processing time for affirmative asylum processing
is less than 180 days, and thus prior to the end of the proposed 365-
day waiting period for an initial (c)(8) EAD. An asylum approval would
grant work authorization, and a denial would make the individual
ineligible for work authorization.
As is explained in the preamble, given the scope of the pending
affirmative asylum caseload, USCIS is prepared to pause (c)(8) initial
EADs when the rule becomes effective. As discussed earlier in the
preamble, the reduction in (c)(8) initial EAD filings could be a factor
in reducing process times for asylum, which could position USCIS in the
future to meet the regulatory criteria of 180-day asylum average
process time and lift the pause to begin again issuing (c)(8) initial
EADs. While DHS cannot speculate on when this would occur, based on
estimates discussed previously, DHS assumes it would likely be outside
the five-year span under which the impacts applicable to the pause are
estimated. Therefore, for purposes of explaining a regulatory baseline,
DHS could assume that once Module 2 commences, in the absence of the
proposed changes to the clock and the eligibility bars, asylum and
(c)(8) EAD volumes would revert back to levels before the rule (and
pause) took place.
What the above discussion suggests is that if DHS is meeting the
180-day asylum processing time, (c)(8) initial EAD volumes applicable
to affirmative asylum could converge to zero. The impact to affirmative
asylum is twofold; first, individuals with approved affirmative claims
could benefit because they could become work authorized earlier--their
asylum claim would be approved before their ``past'' claim or EAD,
whichever of the latter two was approved first. Second, individuals
would realize a cost-savings from not filing for an EAD. While DHS
expects these impacts to occur, the Department does not make estimates
of the impacts to the affirmative population for two reasons; first, as
was stated above, for a baseline we could assume asylum filings and
concomitant (c)(8) EADs would revert to pre-rule levels, but this is
not realistic. Due to lingering effects of the (initial) pause the
initial (c)(8) volumes relevant to Module 2 would likely be quite
different than recent historical volumes. Second, DHS cannot predict
when an asylum claim could be approved (within the 180-day window). In
summary, DHS acknowledges that this proposed rule will have a
significant impact on both the asylum and associated EAD populations
but, for the reasons described above, DHS is unable to quantify the
indirect impacts of potential earlier earnings and filing cost-savings.
In Module 2, DHS operates under the assumption that USCIS
affirmative asylum applicants would generally not file for an EAD, as
their asylum case would potentially be decided in advance of their
application for an EAD. This is even more likely given the EAD

[[Page 8678]]

filing clock change from 150 to 360 days. Therefore, DHS assumes the
affirmative population would not be affected by the Module 2 provision.
For Module 2, DHS estimates impacts to the defensive population, also
described as the EOIR population. Defensive cases would not be subject
to the proposed 180-day asylum process time requirement. Hence the
eligibility bars and clock changes would potentially be impactful to
defensive cases. The reason is that the data analysis reports the
median time for a USCIS referral to EOIR (date of receipt of the asylum
application to the referral decision date) is 231 days. Adding the
referral time frame to the lengthy current process time for asylum
cases at EOIR, DHS expects that most would benefit from filing for an
EAD as it would be approved before the asylum decision date, even with
the EAD clock changes.
To conduct the analysis, DHS drew a random sample of 5,000 records
from initial EAD applications, including affirmative and defensive
asylum cases. This size is much larger than is required to generate 95
percent confidence in the results, but DHS oversampled considerably
because there are multiple sub-populations impacted, and DHS sought
assurance of adequate inter-group representation. The population
breakout is reported in Table 8 and is based on the projected
annualized average filing volumes or the analysis period of FY 2025 to
FY 2029. It is noted that the encompassing population comprises receipt
volumes (Section VI.A.3) multiplied by an approval rate of 83.5 percent
(applicable to both affirmative and defensive filings), which is the
weighted average (c)(8) EAD approval rate for the period FY 2019
through FY 2024 (in estimating specific impacts DHS utilizes a range,
derived from historical data for the approval rate, APV).
BILLING CODE 9111-97-P
[GRAPHIC] [TIFF OMITTED] TP23FE26.030

[[Page 8679]]

BILLING CODE 9111-97-C
The reported shares derived from the sample are extrapolated to the
population to obtain estimates of the number of aliens potentially
impacted. For Module 2, the basis for Row A is the total EOIR
population, which, based on our analysis, is 63.7 percent of the
estimated approved (c)(8) EAD population.\307\ DHS examined the three
proposed bars to eligibility: one-year filing deadline, entry without
inspection, and criminal bars. For the one-year filing deadline, DHS
calculated the day-duration between the entry date and the receipt of
the Form I-589 to obtain an estimate of the population potentially
subject to the 1-year filing deadline bar (OYB). DHS also filtered
cases recording entry without inspection (EWI) to estimate the
potential population that could be subject to the EWI bar. As can be
derived from Table 8, 35.4 percent could be subject to either bar, but
we removed the overlap correction factor (OCF) of 5.4 percent, the
latter of which is the percentage to which both bars could apply, to
arrive at the total share shown (A4). The total number of future EAD
filers reported in Row A5, is the EOIR cases population (Row A) minus
the OYB and EWI bar population excluding overlap (Row A4). For the
other bars, DHS cannot make an estimate of the number or share of
cases. Information on criminal activity can be recorded in adjudicative
records and officer notes and, while DHS does have some data and
information asylum cases that were denied on such grounds, DHS does not
have data linking those cases to EAD data in a manner suitable for
analysis. The percentages in A1, A2, and A4 thus apply to the EOIR
population. For reference, the shares applicable to the total (c)(8)
EAD population for the eligibility bars (A4) and those that would file
in the future (A5) are 19.1 and 44.6 percent, in order.\308\
---------------------------------------------------------------------------

\306\ DHS emphasizes that the percentage applicable to EOIR is
obtained from the sample utilized for the analysis, and applies to
EADs; therefore, it may be different than the percentage of asylum
cases referred to EOIR by DHS in a particular time frame.
\307\ For example, the mid column, 0.637 = 320,257/502,758.
\308\ These percentages are the respective shares of the entire
approved EAD population. Calculation for the bars: 42,507/222,432 =
.191 (rounded). Calculation for future filers: 99,182/222,432 = .446
(rounded).
---------------------------------------------------------------------------

DHS also examined the impacts of the proposed changes to
termination of employment authorization. The figure of 159 (Row B,
Table 8) is the estimated number of annual USCIS asylum denials (DEN)
in which the individual received an EAD. This proposed rule would end
the EAD (before its expiration date) when USCIS denied the affirmative
asylum claim. DHS cannot determine how many would be valid when the
rule becomes effective and hence this small volume will be a proxy for
the number impacted at effective date.\309\
---------------------------------------------------------------------------

\309\ DHS is aware that some aliens obtain an EAD as a valued
identification document. Hence, some individuals may continue to
file for a (c)(8) under affirmative asylum even though it would not
generate a specific pecuniary benefit. Additionally, the population
subject to the bars could decrease if the bars provide an incentive
for compliance.
---------------------------------------------------------------------------

Because there are multiple metrics involved in the two modules, and
because some incur ranges, DHS will utilize a modelling and simulation
approach based on a large number of randomized seed trials. This
approach provides a robust and efficient estimation mechanism; even
though the impacts across module and type are reported separately per
regulatory guidance, their setup can be nested into a single-dimension
simulation that ensures the impact estimates are based on the same
randomized trial values for common variables (for example, population
and (c)(8) approval rate). When a data range is involved, a triangle
data structure is utilized when a minimum, average, and maximum value
is applicable. If there is not an average or ``likeliest'' value, a
uniform range is bounded with a maximum and minimum value, which
essentially means that the probability of any value chosen in a trial
run is the same for all values within the range.
DHS believes it is appropriate to incorporate realistic aspects of
the labor market into the DHS estimates. For example, we can assume
that all individuals with EADs would be in the labor force but cannot
reasonably assume that all are employed at the effective date of the
rule, and thus it would be appropriate to take the unemployment rate
into account. To integrate labor market effects, DHS calculates an
intensity scalar (SCL), a measure of the hours of wages earned per day,
per member of the workforce, using the following equation:
[GRAPHIC] [TIFF OMITTED] TP23FE26.031

Where BEN is the benefits burden, u is the unemployment rate, and
[GRAPHIC] [TIFF OMITTED] TP23FE26.032

is the work hours per week divided by the days per week (7). The BEN is
defined by BLS and is equal to 1.45,\310\ the unemployment rate u, is
0.041, and whw is 34.2.\311\ This yields a value of 6.79 hours of wages
earned per day per member of the workforce.\312\
---------------------------------------------------------------------------

\310\ The benefits burden, introduced in Section 4 of this
analysis, is broken into five major categories and eighteen specific
benefits, as costs to employers. These categories and additional
details are found in the ``Technical Note'' at BLS, Economic News
Release, ``Employer Costs for Employee Compensation--September
2024'' (Dec. 17, 2024), Table 2. Employer Costs for Employee
Compensation for civilian workers by occupation and industry group,
https://www.bls.gov/news.release/archives/ecec_12172024.pdf.
\311\ BLS, ``Current Employment Statistics (National),
Establishment Data, Table B-2a. Average weekly hours and overtime of
all employees on private nonfarm payrolls by industry sector,
seasonally adjusted,'' https://www.bls.gov/ces/data/employment-and-earnings/2025/table2a_202502.htm (last visited May 26, 2025).
\312\ 6.79 = 1.45 x (1-0.041) x (34.2/7).
---------------------------------------------------------------------------

Working with a single value to incorporate realistic labor factors
is beneficial because it is not necessary to adjust the variables--such
as the benefits burden to wages and the approval rate to the
population--sequentially or even directly; all the inputs interact
multiplicatively and can therefore be nested as a single dimensional
system. Having described the data and the population, we proceed to the
Module 1 estimation.
b. Module 1: EAD Application Acceptance Pause
If there is a pause in the acceptance of applications for (c)(8)
EADs, the primary impact to aliens would be forgone labor
earnings,\313\ with the change to earnings denoted ENG throughout this
analysis. We attribute the earnings change to a 5-year horizon, to
capture the EAD validity period at the time the analysis was conducted.
It includes an adjustment that accounts for possible substitution into
another EAD category (SUB). DHS analysis reveals that for the data
coverage period, 16.3 percent of (c)(8) EAD holders also received an
EAD in another category of eligibility. There could be variance to this
share in the future, however. On one hand, a pause in (c)(8) EAD
applications would likely drive some aliens to seek EADs in other
classes of eligibility, thus raising the share (and thereby reducing
the share that would experience earnings change). However, a
countervailing motion could occur if actions are undertaken that reduce
eligibility in other classes that incurred dual EADs, in which the
share could drop. Therefore, we will bound the SUB share at the current
share (as the maximum, 16.3 percent) but allow as few as 5 percent to
substitute, under the assumption that aliens who received an

[[Page 8680]]

EAD in another eligibility category would not sustain an earnings
impact.
---------------------------------------------------------------------------

\313\ By ``forgone,'' DHS implies that aliens would not be able
to earn any labor compensation as it relates to a USCIS approved
EAD.
---------------------------------------------------------------------------

The earnings metric is based on the hourly wage (HWG, which ranges
from $13.97 to $31.48, unburdened) and the time is based on a year (YER
= 365 days). Denoting the daily worktime intensity scalar, developed
above, as ``SCL'' the estimating equation for the total impact is the
sum of three terms. The first, is the earnings change, followed by
changes in taxes (TAX),

(2) ENG = {POP x APV x HWG x (1 - SUB) x SCL x YER{time} ;
[GRAPHIC] [TIFF OMITTED] TP23FE26.033

As is shown, TAX is calculated as earnings multiplied by the tax
rate (TXR=15.3 percent, which is the sum of the Medicare and Social
Security tax, developed in Section 4) and divided by the benefits
burden (``BEN'') as DHS quantifies tax impacts on unloaded wages. The
third term is the form burden cost-savings (CSV), and is expressed as,

(4) CSV = {POP x APV x HWG x (1 - SUB) x FMB x BEN{time} ,

which includes the form time-burden (``FMB''=4.72 hours) and BEN. Cost-
savings accrue from avoided opportunity costs of time for filing the I-
765.
DHS abridged the estimating setup into a truncated equation and
nested in the simulation program.\314\
---------------------------------------------------------------------------

\314\ DHS utilizes the Oracle Crystal Ball (copyright) modelling
and simulation system (OCB). DHS provided the complete estimation
system, covering assumptions, inputs, settings, and results unedited
in a Crystal Ball Report in the Technical Appendix in the rulemaking
docket. The hourly wage is a uniform distribution bounded by the
wage levels developed in Section IV.A.4. The approval rate is a
triangle distribution set at 0.748, 0.835, and 0.855, as warranted
by the analysis. The estimating setup can be abridged into a
truncated equation and nested in the simulation program.
[GRAPHIC] [TIFF OMITTED] TP23FE26.034

Table 10 reports the values for the 5-year period FY 2025 through
FY 2029. Because the simulation output provides the impact for the
average annual EAD population, DHS calculated a five-year total impact
from this output. Since the EAD length is currently 5 years, the
earnings and taxes impacts grow consecutively each year as there are
overlapping populations starting in the second year.\317\ However, for
costs savings that would result from one-time form submission per
initial EAD applicant who can no longer file, DHS used the average
annual EAD population (Table 8) for each analysis year.
---------------------------------------------------------------------------

\315\ In the Monte Carlo simulations, DHS nests a common term
applicable to earnings, taxes, and savings, which is the product of
the population, approval rate, hourly wage, and unity minus the
substitution factor.
\316\ The variance contribution captures the contribution of
variance for each input to the range of forecasted values. The high
and low figure represents the certainty level, which is the range of
values between the data-structure-specific 2.5th and 97.5th
percentiles.
\317\ To determine the earnings and taxes impacts allocated to
the FYs 2025, 2026, 2027, 2028, and 2029, DHS uses the average
annual filing volume from Table 8 and annual impacts from Table 10.
The impacts from not receiving the EAD accrue to each of the 5 years
for which the EAD would have resulted in earnings. Accordingly, in
2025 DHS estimates 602,105 EAD filers, with mean estimated earnings
of $24,585 million. In 2026 that doubles to 1,204,210 EAD filers
with $49,170 million in affected earnings. Continuing that pattern,
in 2029 DHS estimates an average of 3,010,525 EAD filers would be
affected and a corresponding $122,926 million in earnings. DHS
selected the allocation horizon given the 5-year EAD validity in
effect at the time of this analysis.
---------------------------------------------------------------------------

The net impact is earnings minus cost-savings. The results are
presented first in undiscounted terms and then at discount rates of 3
and 7 percent, in order.
BILLING CODE 9111-97-P

[[Page 8681]]

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[[Page 8682]]

[GRAPHIC] [TIFF OMITTED] TP23FE26.036

[[Page 8683]]

[GRAPHIC] [TIFF OMITTED] TP23FE26.037

BILLING CODE 9111-97-C
As is reported in Table 10, net impacts from Module 1 could range
from $172,867.8 million to $632,576.3.6 million (undiscounted), with a
mean estimate of $368,437.9 million over 5 years, with annualized
averages that could range from $34,573.6 million to $126,515.3 million,
with a mean of $73,687.6 million. At a 3 percent discount rate, net
impacts could range from $155,215.0 million to $567,979.0 million, with
a mean estimate of $330,813.9 million over 5 years, with annualized
figures es that could range from $33,891.9 million to $124,020.8
million, with a mean of $72,234.7 million. At a 7 percent discount
rate, net impacts could range from $135,371.1 million to $495,364.2
million, with a mean estimate of $288,520.1 million, with annualized
figures that could range from $33,015.7 million to $120,814.7 million,
with a mean of $70,367.4 million.
Having developed and reported the quantified and monetized
potential impacts of a (c)(8) EAD issuance pause, we turn to Module 2
impacts.
c. Module 2: EAD Issuance Provisions
Under a scenario in which USCIS is processing affirmative asylum
applications within 180 days, and therefore USCIS could issue (c)(8)
EADs under the provisions of this rule, there could be impacts from
other provisions of the proposed rule to both affirmative asylum aliens
and also EOIR defensive aliens. Modules 1 and 2 are parsed separately
to avoid double counting, as Module 1 quantified impacts comprise the
largest (total) impacts of the rule. As was discussed above in
reference to the population, all initial approved (c)(8) EADs would be
subject to the bars and filing clock changes but in practice, such bars
will generally apply only to defensive asylum applicants. This is
because when there is not a pause in the issuance of initial (c)(8)
EADs, USCIS would generally be adjudicating affirmative applications
for asylum before such applicants are eligible to receive employment
authorization on the basis of a pending asylum application. The
quantified estimates in this section are not in addition to those under
a full pause; they should be considered as separate to not overcount.
EAD Denials
The proposed rule would result in some EADs ending early due to new
requirements, which would result in earlier denial of work
authorization. For the ending of EADs earlier than that stipulated in
their validity date, as was explained in the discussion applicable to
the population, DHS does not know how many cases will apply at a
specific point in time but will utilize the annual number (DEN=159) as
a proxy (which can be considered the number, based on the data
available, that would be valid at any time within a year).\318\ This
figure only applies to concomitant affirmative asylum denials, and the
true figure, inclusive if defensive cases, would be larger. To obtain
the pertinent earnings metric, DHS calculated the amount of time
remaining (TMR) left in validity at the date of the asylum claim
denial, which is a median 434 days. As was noted in the above section
applicable to Module 1, the recent USCIS policy change limiting maximum
validity for (c)(8) EADs to 18 months will likely have an impact here
as well. Specifically, the median remaining time left would potentially
be much lower than 434 days, meaning that the quantified estimates
reported below for this impact (earnings and taxes) are overstated
currently. The following summary equations represent the Annual Results
as shown in Table 11 for earnings and taxes based on ending EADs early
due to new requirements,
---------------------------------------------------------------------------

\318\ DHS notes that the number of cases (159) does not reflect
the entire population and only USCIS affirmative cases.

(5) ENG2 = {DEN x TMR x HWG x SCL{time} ;
[GRAPHIC] [TIFF OMITTED] TP23FE26.038

Eligibility Bars and EAD Clock
For the EOIR defensive asylum cases, there will be two population
groups impacted. First, the filing bars will apply, and the changes to
the EAD clock

[[Page 8684]]

will be binding. As was introduced in the presentation of the
population, DHS expects EAD filings to continue, as the EAD would
generally be approved prior to the adjudication of the asylum claim, at
least under the current conditions of large backlogs. First, we present
the estimation structure for the impacts that would accrue to the
ending of some EADs early and the filing bars. As is applicable to the
latter, earnings impacts are estimated as,

(7) ENG3 = POP x APV x (OYB + EWI-OCF) x HWG x SCL x YER.

In this equation, the population is the defensive asylum/EOIR
population (see Table 8), the term (OYB + EWI-OCF) is the percentage
(share) subject to the bars, and taxes are calculated the same way as
in Equation 2. Individuals that could be impacted by the eligibility
bars might file for an EAD, but if they do, they will be denied. Some
aliens are likely to realize they are ineligible and will therefore not
file. USCIS believes it is reasonable to operate under the assumption
that potential filers with legal representation would likely be advised
not to file. USCIS evaluated the (c)(8) data and determined on average
about half of the population uses a representative for their (c)(8) EAD
request. Therefore, about half the population could incur filing cost-
savings and about half would incur sunk costs associated with filing
for an EAD that would be denied. In the net, the impact would be close
to zero as costs would offset savings.\319\
---------------------------------------------------------------------------

\319\ Data sources to USCIS, OPQ, queried Sep. 5, 2025. The 50-
50 percent split is an approximation, as the figure varies year to
year; additionally, some records contain missing or inconsistent
information.
---------------------------------------------------------------------------

Eligibility Bars
DHS assumes that aliens subject to the eligibility bars cannot
substitute into another EAD class. To estimate the eligibility bar
total impact, we can draw out a common term for Module 2 (CT2),

(8) CT2 = {POP x APV x (OYB + EWI-OCF) x HWG{time}

The following summary equations represent the Annual Results as shown
in Table 11 for earnings and taxes for the eligibility bars applicable
to EOIR cases,

(9) ENG3 = {CT2 x SCL x YER{time}
[GRAPHIC] [TIFF OMITTED] TP23FE26.039

[GRAPHIC] [TIFF OMITTED] TP23FE26.040

EAD Clock: Changes to Filing and Processing Time
The changes applicable to the (c)(8) EAD filing and processing time
jointly affect the earnings clock. Under the proposed rule, the EAD
filing time would increase from 180 days to 365 days, where an
applicant would need to wait longer to file under the proposed rule
(``EAD clock''). Further, the proposed rule would provide USCIS
additional time to adjudicate and process from the baseline 30 days to
180 days. The metric to affected earnings will be the difference in the
EAD ``wait time,'' which constitutes the duration between the asylum
receipt claim and the approval of the (c)(8) EAD. The wait time is the
sum of two components, the EAD filing time (FTC, FTF) and the process
time, in which ``C'' denotes current, or past, and ``F'' is the future,
or conditions under the rule. To estimate FTF we employ a simple
behavioral approach; FTF will be set at 365 applicable to past values
less than this value; if someone filed at 200 days in the past they
would file at the new minimum (365). For those who filed past 365 days
in the past, they would be assigned their actual past value; if someone
waited 400 days to file, they would file at that same time in the
future. This behavioral system imparts that those filing under 365 days
would file unconditionally at the new minimum, whereas others would not
be impacted by the filing clock change.
DHS seeks sufficient time to conduct diligent and thorough review,
to include screening and vetting for national security and public
safety concerns, of (c)(8) EAD applications. While DHS cannot predict
exactly what (c)(8) EAD process times will look like in the future, at
the time of this analysis we believe that most EADs can be adjudicated
within about 120 days and that 90 days is a reasonable cluster point.
However, DHS will allow a window of up to 180 days, though an
individual case could take longer for any number of reasons. DHS
emphasizes that process times of 90 days that we rely on as a cluster
point (and 120 days as an upper end range for most (c)(8) EADs
applications) is not a prediction, as the process time could vary for
reasons linked to case-by-case analysis of individual cases or changes
in

[[Page 8685]]

operations, resources, policies, and immigration. Rather these values
are inputs required to make our estimation procedures tractable and are
based on what DHS thinks is currently reasonable.
As it applies to the future process time it is necessary to employ
a data transformation mapping each past value to a future one. In this
sense, because the future will be charted from past data, there is a
behavioral element to the process time also. But, because a
transformation is involved, the setup is quasi-behavioral. The data
must be mapped to a new process time structure that satisfies multiple
policy and operational goals. First, the minimum process time informed
from the data analysis (1 day) is not tenable, and it is requisite that
this minimum will rise to allow DHS diligence in the adjudicative
process. DHS analysis reveals that the data structure for the (c)(8)
EAD current process time is positively skewed, with a mean that is
larger than the median. Since the potential cluster will be around 90
days, which is near the upper window of 120 days, the data structure
will need to be recentered near the upper segment and negatively skewed
and bounded to 120. It is noted that the actual upper bound may be more
than 120 days, but it is a necessary feature of the model that we
employ, which we will address downstream. Additionally, DHS seeks
consistency in adjudications and therefore a lower variance is a goal.
This part of the methodology development is technical in nature,
and while some details are provided here, the technical appendix
accompanying this rulemaking walks through the steps of the estimation
procedures in detail. Specifically, DHS began by attempting to scale
the process times to satisfy the upper bound, using simple and common
transformation procedures utilized in multidisciplinary work. While
these methods are not directly set up to bound data to an upper level,
DHS was able to adjust the algorithms to satisfy the upper bound, but
the results were not tenable for other reasons. Because of the
inadequacies applicable the two common procedures, DHS next employed
the logistic functional form, which is the benchmark to model growth
patterns across a number of natural and medical sciences. It has also
been a key development practice in the propagation and training of deep
learning networks. As it relates to deep learning networks, the
logistic form is utilized as a data transformation tool, and offers a
setup that directly bounds an upper limit. However, trial runs based on
its general and scalable form did not produce tenable results. In
summary, the transformed process times gravitated to a specific value,
which is a result of a technically involved issue known as a vanishing
gradient.
Because of the untenable results noted above, out of necessity DHS
turned to a newer type of function that incorporates a logistic form
into a more flexible but also complex configuration. This form is a
hyperbolastic equation of Type 1, denoted ``H1'' employs three tuning
parameters and nests the inverse hyperbolic sine (ASINH) in the
exponential term of the logistic equation. The tuners are obtained by
trial and error, not by a rule-base method. For the future process
times, the calibration of tuner settings employed in H1 has
accomplished the stated objectives; the minimum EAD process time
increased to 24 days; the data cluster in the upper tail (median=90)
which is greater than the mean, indicating the distribution has been
recentered and skewed leftward, and the variance (as measured by the
standard deviation) has declined from 41.5 to 28.3, which is reduction
of almost a third (31.8 percent).
For every case, DHS calculated the past wait time (WTP) for an EAD
from the data set and a future wait (WTF) from the model developed
above and then calculated the wait time difference (WTD). DHS mapped
the current process time for their (c)(8) EAD to a new one. The
resultant analysis suggests that almost all (98.1 percent) would
experience a longer wait time under the proposed provisions of the
rule, with a median of 216 days, and a small share (1.9 percent) could
experience shortened wait time and gain earnings time, as WTP>WTF (the
range for the shorter wait times is 1 day to 98 days, with a median of
34 days). To extend these results to the population, DHS set up the
earnings delay as positive figures and the gains as negatives, to
express net effects and incorporated the WTD according to its
distribution and parameters.
Before turning to the simulation and results, we highlight an
additional feature of the utilized data structure. It was necessary to
stipulate an upper bound, which is 120 days in the current calibration
(i.e., when DHS believes most EADs can be adjudicated). But this window
is not absolute, as DHS will allow a process time of up to 180 days
with any case taking necessarily longer due to security or vetting
concerns. The WTD distribution is not finite in its upper tail as we
allow for longer wait times (driven by longer process times)--i.e. they
are not ruled out in the seed trials. Hence, although DHS did not
explicitly input longer process times in the estimation mechanism, we
can ensconce this possibility without compromising any functionality of
the system. In fact, DHS verifies and reports recursively that this
effect has been rendered, as a small number of trials resulted in a WTD
that exceeded the actual values in the sample (and 180 days)
For aliens that file for an EAD, which to reiterate, is the
defensive population not subject to the proposed bars, the impact
pertinent to filing for the EAD is the proposed change in the form
burden ([Delta]FMB), which is 0.34 hours. Hence there will be a
relatively small increased filing time burden to each individual that
files, which DHS denotes as CST . Drawing on a common term for or the
clock changes (``CT3''),

(11) CT3 = POP x APV (1-OYB-EWI + OCF) x HWG).

The following summary equations represent the Annual Results as shown
in Table 12 for earnings, taxes and filing costs for the EAD clock
impacts under Module 2,

(12) ENG4 = {CT3 x SCL x WTD{time} ;
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(14) CST = {CT3 x [Delta]FMB x BEN{time} .
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[[Page 8686]]

[GRAPHIC] [TIFF OMITTED] TP23FE26.041

The estimated earnings and costs impact estimates pertinent to
Module 2 are reported in Table 13, The impacts applicable to the change
in the form burden are a small cost associated with those who file that
would obtain an EAD (the clock changes). As with Module 1, DHS
distributed the average annual population and impacts through each year
in the analysis. Similarly, the quantified impacts are overstated
currently due to the recent USCIS policy change limiting (c)(8) EAD
validity to 18 months.

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BILLING CODE 9111-97-C
As is reported in Table 13, net impacts from Module 2, in
undiscounted terms, could range from $38,948.2 million to $201,803.1
million, with a mean estimate of $110,294.1 million over 5 years, with
annualized averages that could range from $7,789.6 million to $40,360.6
million, with a mean of $22,058.8 million. At a 3 percent discount
rate, net impacts could range from $35,004.7 million to $182,407.3
million, with a mean estimate of $99,599.7 million over 5 years, with
annualized averages that could range from $7,643.4 million to $39,829.5
million, with a mean of $21,748.1 million. At a 7 percent discount
rate, net impacts could range from $30,569.0 million to $160,509.5
million, with a mean estimate of $87,533.5 with annualized averages
that could range from $7,455.5 million to $39,146.8 million, with a
mean of $21,348.6 million.
In addition to the earnings and costs presented in Table 13, Table
14 reports the Module 2 tax impacts.
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BILLING CODE 9111-97-C
As is reported in Table 14, for Module 2 the average annualized
equivalence tax impacts could range from $832.2 million to $4,136.8
million, with a mean estimate of $2,289.3 million at a 3-percent
discount rate. At a 7 percent discount rate, tax impacts could range
from $812.4 million to $4,064.8 million, with a mean estimate of
$2,247.1 million.
7. Distributional Effects of the Monetized Impacts
The impacts of this proposed rule can include both potential
distributional effects (which are transfers), costs, and cost savings.
The potential distributional impacts fall on the aliens who may be
delayed in entering the U.S. labor force or may be prevented from
entering altogether. The potential distributional impacts (transfers)
would be in the form of forgone opportunity to earn compensation (wages
and benefits). A portion of this lost compensation might be transferred
from aliens to others that are currently employed in the U.S. labor
force, possibly in the form of additional hours worked or overtime pay.
A portion of the impacts of this rule may also be borne by companies
that would have hired the aliens had they been in the labor market
earlier. However, if the employer were unable to find available workers
these companies could incur a cost, as they may be losing the
productivity and potential profits the alien may have provided had the
alien been in the labor force sooner.
Companies may also incur opportunity costs by having to choose the
next best alternative to immediately filling the job the alien would
have filled. USCIS does not know what this next best alternative may be
for those companies. As a result, USCIS does not know the portion of
overall impacts of this rule that are transfers or costs, therefore DHS
estimates a range of effects of the proposed rule between transfers and
costs. DHS describes the two extreme scenarios, which provide the
bounds for the range of effects. USCIS uses the changes to earnings to
aliens as a measure of the overall impact of the rule--either as
distributional impacts (transfers) or as a proxy for businesses' cost,
for lost productivity (costs).
In Scenario 1, if all employers can immediately find replacement
labor for the position the alien would have filled, this rule would
have primarily distributional effects in the form of transfers from
aliens to others already in the labor market (or workers induced to
return to the labor market). This scenario also requires the further
assumption that these native workers would not have been employed in
any other job, but for these newly available jobs, and that there are
no general equilibrium effects to other jobs from removing a large
number of EAD job seekers from the economy. Accordingly, this rule
would result in $70.44 billion (primary estimate annualized, 7 percent)
being transferred from aliens, who would not have work authorization,
to workers currently in the labor force (whom are not presently
employed full time) or induced back into the labor force. In Scenario
1, this rule would result in $0 cost to employers for prevented
productivity losses. USCIS acknowledges that there may be additional
opportunity costs to employers such as additional search costs.
In Scenario 2, if all employers cannot immediately find a
reasonable substitute for the labor an alien would have provided, the
effect of this rule would primarily be a cost to these employers
through lost productivity and profits. Accordingly, $70.44 billion is
the estimated monetized costs from this rule for productivity losses in
Scenario 2. Because under this scenario businesses would not have been
able to find replacement labor, the rule may also result additional
business costs in lost profits. Further, the rule may prevent tax
transfer payments from businesses and employees to federal and state
governments. In instances where a company cannot easily hire
replacement labor for the position the alien would have filled, USCIS
acknowledges that such delays may result in tax losses to governments.
USCIS has not estimated all potential tax effects but notes that lost
productivity (wages as a proxy) of $70.44 billion would have resulted
in employment tax losses to the Federal Government (i.e., Medicare and
Social Security) of $7.43 billion. However, it is important to
emphasize that if there are reduced strains on public resources from
reduced immigration, there could be a balancing in the form of fiscal
benefits to offset the tax reductions.
These estimates do not include additional costs to businesses for
lost profits and opportunity costs or the distributional impacts for
those in an alien's support network. In either scenario, DHS assumes
employers would not face turnover costs for aliens unable to get an
initial EAD.\320\ Hiring costs remain unchanged, as employers would
incur the same costs for a different worker. However, DHS

[[Page 8693]]

recognizes that employers could incur additional search time costs due
to decrease in available new hires.
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\320\ Employment separations can generate labor turnover costs
to employers. There are direct costs to employers that include exit
interviews, severance pay, and costs of temporarily covering duties
and functions with other employees, which may require overtime or
temporary staffing. There can also be costs involving loss of
productivity and possibly profitability due to operational and
production disruptions, which can include errors from other
employees that may temporally fill the position. There can also be
indirect costs, which encompass loss of institutional knowledge,
networking, and impacts to work-culture, morale, and interpersonal
relationships.
---------------------------------------------------------------------------

In either scenario, aliens would no longer submit applications and
would realize associated cost savings from time burdens and not paying
filing fees. DHS includes these cost savings of $0.07 billion in both
scenarios.
Table 15 below summarizes these two scenarios for the Module 1
primary estimate of this rule at a 7-percent discount rate.\321\
Because DHS does not know the overall proportion of businesses that
would have been able to easily find replacement labor in the absence of
this rule, for the primary estimate, DHS assumes that replacement labor
would have been immediately found for half of all affected EAD
applicants and not found for the other half (i.e., an average of the
two extreme scenarios described above). As of April 2025, unemployment
and job openings data indicate there are as many jobs available as
people looking for jobs.\322\ This statistic supports that there is
uncertainty in predicting whether employers will be able to immediately
find replacement labor. In addition, effects of this rulemaking would
depend in part on the interaction of a number of complex variables that
constantly are in flux, including national, state, and local labor
market conditions, economic and business factors, the type of
occupations and skills involved, and the availability of similarly
skilled workers. DHS welcomes public comment on the validity of the
assumption that half the affected jobs, that would have gone to workers
with initial EADs, immediately are filled by other authorized workers.
DHS acknowledges there is extensive literature on the impacts of
immigration on labor markets.\323\ DHS welcomes public comment,
including evidentiary findings, that would inform the primary estimate
regarding the distribution between transfers in Scenario 1 and
productivity costs in Scenario 2.
---------------------------------------------------------------------------

\321\ DHS assessed that the primary impact and most likely
circumstance would be a pause of EAD applications, and therefore
uses Module 1 as the primary impact of the rule. DHS does not
include Module 2 impacts in the primary estimate, as the pause would
affect the same populations in both Module 1 and 2, and including
both would be double counting impacts on the same population.
\322\ Bureau of Labor Statistics data show that, as of April
2025, there were 1.0 unemployed persons per job opening. See U.S.
Department of Labor, U.S. Bureau of Labor Statistics, ``Number of
unemployed persons per job opening, seasonally adjusted,'' https://www.bls.gov/charts/job-openings-and-labor-turnover/unemp-per-job-opening.htm (last visited June 16, 2025).
\323\ Edo, Anthony. ``The impact of immigration on the labor
market.'' Journal of Economic Surveys 33.3 (2019): 922-948.
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[[Page 8694]]

BILLING CODE 9111-97-C
Further, DHS recognizes that non-work time performed in the absence
of employment authorization has a positive value, which is not
accounted for in the above monetized estimates.\324\ For example, if
someone performs childcare, housework, home improvement, or other
productive or non-work activities that do not require employment
authorization, that time still has value. In assessing the burden of
regulations to unemployed populations, DHS routinely assumes the time
of unemployed individuals has some value.\325\ The monetized estimates
of the lost compensation this rule creates are measured relative to a
baseline in which individuals would have had employment authorization
and the associated income as a result of the problem this rule seeks to
address. The monetary value of the compensation this rule removes are
costs to the individual, but DHS has considered whether net societal
costs may be lower than the sum of the lost compensation to the
individuals and whether a more accurate estimate of the net impact to
society from losing employment authorization as a result of this rule
might take into account the value of individuals' non-work time, even
though this population would lose their authorization to sell their
time as labor. Due to the variety of values placed on non-work time,
and the additional fact that this non-work time is involuntary, it is
difficult to estimate the appropriate adjustment that DHS should make
to lost compensation in order to account for the social value of non-
work time. Accordingly, DHS recognizes that the net societal costs of
this rule may be somewhat lower than those reported below, but they are
a reasonable estimate of the impacts to avoiding the costs of lapsed
employment authorization.
---------------------------------------------------------------------------

\324\ Boardman et al., Cost-Benefit Analysis Concepts and
Practice (2018), p. 152.
\325\ For regulatory analysis purposes, DHS generally assumes
the value of time for unemployed individuals is at least the value
of the Federal minimum wage.
---------------------------------------------------------------------------

The total quantified impacts of the proposed rule are within the
estimates for Module 1. Module 1 captures the effects of the USCIS
pause on accepting affirmative and defensive (c)(8) initial EAD
applications while affirmative asylum applications process time average
over 180 days. In summary, DHS's primary estimate of the total cost of
the proposed rule assumes that half of employers are able to easily
find replacement labor for the jobs the aliens would have filled. The
total annualized cost in lost productivity would be $35.2 billion, and
$35.2 billion in transfer impacts from shifting earnings from aliens,
who would not get work authorized under the rule, to other workers,
both discounted at 7 percent. Under this scenario, the annualized
transfer impacts from reductions in tax revenue from aliens and
employers to the government would total $3.7 billion, discounted at 7
percent. The total cost savings impacts, which would occur whether or
not employers are able to find replacement labor would be $0.07 billion
annualized, discounted at 7 percent.
8. Impacts on Labor Market
USCIS notes that this rule does not introduce any newly eligible
workers into the labor force. This proposed rule temporarily prevents
new asylum applicants from applying for an EAD and joining the labor
force during the proposed pause, delays some applicants entry into the
labor force by amending the processing of employment authorizations
timing for pending asylum applicants, and bars other applicants from
employment authorization while their EAD is pending by proposing to
establish new eligibility criteria. The ability of pending asylum
applicants to be eligible for requesting employment authorization in
certain circumstances is in existing regulations.
USCIS projects an average (c)(8) initial filing EAD population
ranging between a low of 266,386 and high of 937,824 people, with the
midpoint at 602,105. The U.S. labor force consists of a total of about
170,000,000 as of February 2025.\326\ Therefore, the average population
(midpoint level) affected by this rule represents about 0.35 percent of
the U.S. labor force.
---------------------------------------------------------------------------

\326\ BLS, ``Economic News Release, Table A-1. Employment status
of the civilian population by sex and age,'' https://www.bls.gov/news.release/empsit.t01.htm (last updated Apr. 4, 2025).
---------------------------------------------------------------------------

9. Other Impacts Not Estimated
DHS notes that for the small population of 159 annual USCIS
affirmative cases in which an alien who was denied asylum obtained an
EAD (and for the population pertinent to defensive asylum, for which
DHS cannot currently determine a volume), ending these EADs is not
expected to generate labor turnover cost to their current employers.
The impacted aliens would lose employment authorization regardless of
this DHS action; they would potentially lose authorization earlier
under this proposed rule, but employers would incur a turnover cost in
either case and it is therefore not an impact applicable to this
proposed rule.
DHS has explained that this rule proposes a general biometrics
requirement for asylum applicants seeking a (c)(8) EAD. Aliens who fail
to appear for a scheduled biometrics appointment would not be eligible
for a (c)(8) EAD. Any alien who submits biometrics at an ASC incurs
cost of time to travel to an ASC. DHS estimates that it takes 1 hour
and 10 minutes to submit fingerprints, be photographed, and provide a
signature. Aliens will need to travel to an ASC for their appointment.
DHS estimates 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.\327\
The cost of travel also includes a mileage charge based on the
estimated 50-mile round trip at the 2025 General Services
Administration rate of $0.70 per mile.\328\ DHS is not accounting for
the opportunity costs and travel costs associated with submitting
biometrics, for aliens in this phase of the rule because USCIS accounts
for them in a separate rulemaking which also proposes to require
biometrics for all (c)(8) EAD applicants.\329\ DHS notes that total
biometrics-related costs are not estimated for individual classes of
EADs, though they are estimated for asylum filings.
---------------------------------------------------------------------------

\327\ In past rulemakings, DHS estimated that the average round-
trip distance to an ASC is 50 miles and that the average time for
that trip will be 2.5 hours. See, for example, DHS Final Rule,
Provisional Unlawful Presence Waivers of Inadmissibility for Certain
Immediate Relatives, 78 FR 572 (Jan. 3, 2013).
\328\ GSA, ``Privately owned vehicle (POV) mileage reimbursement
rates,'' https://www.gsa.gov/travel/plan-book/transportation-airfare-rates-pov-rates/privately-owned-vehicle-pov-mileage-reimbursement-rates (last updated Dec. 30, 2024).
\329\ See section V.A. Collection and Use of Biometrics by U.S.
Citizenship and Immigrations Services NPRM, FR 49062 (Nov. 3, 2025)
for more information about the separate rulemaking and USCIS'
consideration of the rules' combined effects there.
---------------------------------------------------------------------------

The quantified portion of this impact analysis focused on initial
EAD applications, but regulatory provisions will impact (c)(8)
renewals. DHS emphasizes that the renewal filing will be adjudicated on
its own merit and will not be retrospective to the initial EAD.
Specifically, renewal filers will be subject to the proposed biometrics
requirement, one-year filing deadline and criminal bar eligibility
requirements, and the proposed changes to EAD terminations.
Under the possibility that some renewal filings will not be
approved, individuals could lose employment authorization, for which
earnings changes could be costs for lost productivity or transfers to
other workers, as has been discussed. DHS does not attempt to estimate
impacts

[[Page 8695]]

pertinent to renewals because DHS has no way of determining how many
renewal filings could be impacted. Over the period FY 2020 through FY
2024 there were about 2.24 million approved initial (c)(8) EADs. In the
same timeframe there were about 1.45 million approved renewals,
suggesting a renewal rate of about 65 percent.\330\
---------------------------------------------------------------------------

\330\ Source: ``Form I-765, Application for Employment
Authorization, Eligibility Category and Filing Type,'' accessed at
the USCIS public facing data portal, at: https://www.uscis.gov/tools/reports-and-studies/immigration-and-citizenship-data (July 2,
2025).
---------------------------------------------------------------------------

If a renewal filing is denied and aliens lose work authorization
due to the proposed changes, employers could face an involuntary
separation. Employment separations can generate labor turnover costs to
employers. There are direct costs to employers that include exit
interviews, severance pay, and costs of temporarily covering duties and
functions with other employees, which may require overtime or temporary
staffing. There can also be costs involving loss of productivity and
possibly profitability due to operational and production disruptions,
which can include errors from other employees that may temporally fill
the position. There can also be indirect costs, which encompass loss of
institutional knowledge, networking, and impacts to work-culture,
morale, and interpersonal relationships.\331\
---------------------------------------------------------------------------

\331\ See ``Estimating the Costs of Employee Turnover,'' Indeed,
Last updated December 5, 2024, at: https://www.indeed.com/hire/c/info/estimating-cost-of-higher-turnover.
---------------------------------------------------------------------------

In addition to possible labor turnover costs to employers, aliens
who face denied renewals would likely incur costs related to job
search. DHS cannot quantify these possible effects.
Finally, as is described more fully in the preamble, USCIS
currently faces a situation with some similarity to that requiring the
1994 actions. That action resulted in a substantial drop in asylum
claims without a concomitant decline in approvals. These actions had an
unmistakable impact on asylum program integrity. With overall asylum
filings decreasing and the approval rate increasing, the clear
implication was that ineligible aliens (regardless of the basis for
ineligibility or whether the filing was frivolous, fraudulent, or
otherwise meritless) stopped filing and the result de-clogged the
asylum system. DHS is seeking a similar result with this proposed
regulatory action.
A decrease in asylum filings and (c)(8) EAD filings could
potentially generate operational efficiencies and improvements that
stand to benefit DHS and the public. DHS does not, in proposed
rulemakings, make predictions or specific possible actions applicable
to resource allocation, but it is possible that a decline in filings
noted above could lead USCIS to devote resources to other areas
adjudication and service that might require resources. For example,
most USCIS Asylum Officers occupy the GS-13 paygrade. The CY 2025
hourly wage for a mid-level (GS-13 step 5) federal worker is $48.9.
Loaded for benefits, but not including a locality adjustment, this rate
is $70.9. Currently, the average review time for a Form I-589 is about
7.5 hours, at which the USCIS ``direct'' cost is $531.8 per case.\332\
This cost does not include indirect resourcing, such as preparing for
interviews, and does not capture costs to EOIR for referred cases.
Therefore, this basic cost, which is probably a very small fraction of
the true total costs, could be saved per case, or transferred to
another area of service, generating a potential benefit to the public.
---------------------------------------------------------------------------

\332\ 332 USCIS analysis, May 27, 2025.
---------------------------------------------------------------------------

As is explained in the preamble, DHS believes this proposed rule
will disincentivize aliens from filing for asylum solely to obtain an
EAD, and therefore, asylum filings could decline, even though the
proposed rule does not directly regulate the Form I-589. DHS has no way
of predicting how Form I-589 volumes could change as a result of the
proposed rule.
There could also be benefits in terms of reduced fiscal strains and
resource expenses if there is a decline in asylum filings. DHS
recognizes that asylum applicants who work are paying taxes, but they
are also eligible for some public benefits. DHS notes that some FY 2025
benefits for asylum seekers were removed by legislative action,\333\
but some are currently available, notably public K-12 education.\334\
---------------------------------------------------------------------------

\333\ See H.R.1--One Big Beautiful Bill Act (OBBBA), Public Law
119-21, Title VII, Subchapter B, Sec. 71201, 138 Stat. 78 (limiting
Medicare coverage to U.S. citizens and nationals, lawful permanent
residents, Cuban and Haitian entrants, and individuals lawfully
residing in the United States in accordance with a Compact of Free
Association referred to in 8 U.S.C. 1612(b)(2)(G)).
\334\ Some of these benefits and changes made by recent
legislation are found in: ``Are Immigrants Eligible for Government
Assistance?, by USAFacts, at: https://usafacts.org/articles/immigrant-program-eligibility/ (Aug. 15, 2025).
---------------------------------------------------------------------------

B. Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.), as
amended by the Small Business Regulatory Enforcement Fairness Act of
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, and governmental jurisdictions with
populations of less than 50,000.
The proposed rule does not directly regulate small entities and is
not expected to have a direct effect on small entities. It does not
mandate any actions or requirements for small entities when asylum
applicants seek employment authorization from USCIS. Rather, this
proposed rule regulates individuals, and individuals are not defined as
``small entities'' by the Regulatory Flexibility Act. While some
employers could experience costs or transfer effects, these impacts are
not a result of compliance with the requirements of this rule and thus
would be indirect. Based on the evidence presented in this analysis and
throughout this preamble, DHS certifies that this proposed rule would
not have a significant economic impact on a substantial number of small
entities. DHS nonetheless welcomes comments regarding potential impacts
on small entities, which DHS may consider as appropriate in a final
rule.

C. Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and Tribal governments.\335\ Title II of UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed rule, or final rule
for which USCIS published a proposed rule, which includes any Federal
mandate 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. See 2 U.S.C.
1532(a). The inflation adjusted value of $100 million in 1995 is
approximately $206 million in 2024 based on the Consumer Price Index
for All Urban Consumer (CPI-U).\336\
---------------------------------------------------------------------------

\335\ The term ``Federal mandate'' means a Federal
intergovernmental mandate or a Federal private sector mandate. See 2
U.S.C. 1502(1) and 658(5) and (6).
\336\ See BLS, ``Historical Consumer Price Index for All Urban
Consumers (CPI-U): U.S. city average, all items, by month,'' https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202412.pdf (last visited May 26, 2025). Calculation of inflation:
(1) Calculate the average monthly CPI-U for the reference year
(1995) and the current year (2024); (2) Subtract reference year CPI-
U from current year CPI-U; (3) Divide the difference of the
reference year CPI-U and current year CPI-U by the reference year
CPI-U; and (4) Multiply by 100=[(Average monthly CPI-U for 2024-
Average monthly CPI-U for 1995)/(Average monthly CPI-U for
1995)]x100=[(313.689-152.383)/152.383] (161.306/
152.383)=1.059x100=105.86 percent=106 percent (rounded). Calculation
of inflation-adjusted value: $100 million in 1995 dollarsx2.06=$206
million in 2024 dollars.

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

[[Page 8696]]

Although this proposed rule does exceed the $100 million
expenditure threshold in an annual year when adjusted for inflation
($206 million in 2024 dollars), this rulemaking does not contain such a
mandate. Some private sector entities may incur a cost, as they could
incur changes to productivity and potential profits that the alien
could have provided. Additionally, some renewal filings that are denied
could cause involuntary separations in which employers could face a
labor turnover cost. Entities may also incur opportunity costs by
having to choose the next best alternative to immediately filling the
job the alien 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.\337\ Similarly, any costs or transfer effects on
state and local governments would not result from a mandate under
UMRA.\338\ Therefore, the requirements of title II of UMRA do not
apply, thus DHS has not prepared a statement under UMRA.
---------------------------------------------------------------------------

\337\ See 2 U.S.C. 658(6) and (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).
\338\ See 2 U.S.C. 658(5) and (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).
---------------------------------------------------------------------------

D. Executive Order 13132 (Federalism)

This proposed rule would 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 E.O. 13132, it is determined that this proposed rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.

E. Executive Order 12988 (Civil Justice Reform)

This proposed rule was drafted and reviewed in accordance with E.O.
12988, Civil Justice Reform. This proposed rule was written to provide
a clear legal standard for affected conduct and was reviewed carefully
to eliminate drafting errors and ambiguities, so as to minimize
litigation and undue burden on the Federal court system. DHS has
determined that this proposed rule meets the applicable standards
provided in section 3 of E.O. 12988.

F. Family Assessment

DHS has reviewed this proposed rule in line with the requirements
of section 654 of the Treasury and General Government Appropriations
Act, 1999, Public Law 105-277, 112 Stat. 2681, 2681-528 (1998). DHS has
systematically reviewed the criteria specified in section 654(c)(1) by
evaluating whether this regulatory action: (1) impacts the stability or
safety of the family, particularly in terms of marital commitment; (2)
impacts the authority of parents in the education, nurture, and
supervision of their children; (3) helps the family perform its
functions; (4) affects disposable income or poverty of families and
children; (5) only financially impacts families, if at all, to the
extent such impacts are justified; (6) may be carried out by State or
local government or by the family; or (7) establishes a policy
concerning the relationship between the behavior and personal
responsibility of youth and the norms of society. If USCIS determines a
regulation may negatively affect family well-being, then USCIS must
provide an adequate rationale for its implementation.
With respect to the criteria specified in section 654(c)(1), DHS
has determined that the rule may delay the ability for certain initial
aliens to work and limit or prohibit some from working based on
criminal and immigration history, which may decrease disposable income
of those aliens with families. A portion of this lost compensation
might be transferred from aliens with pending asylum applications 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 aliens contribute to family disposable income. The total
change to compensation to the pool of potential aliens with pending
asylum applications could range from $34.6 billion to $126.6 billion
annually (undiscounted), depending on the wages the alien 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.

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

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

H. National Environmental Policy Act

DHS and its components analyze proposed regulatory actions to
determine whether the National Environmental Policy Act (NEPA), 42
U.S.C. 4321 et seq., applies and, if so, what degree of analysis is
required. DHS Directive 023-01 Rev. 01 ``Implementing the National
Environmental Policy Act'' (Dir. 023- 01 Rev. 01) and Instruction
Manual 023-01-001-01 Rev. 01 (Instruction Manual) \339\ establish the
policies and procedures that DHS and its components use to comply with
NEPA.
---------------------------------------------------------------------------

\339\ The Instruction Manual contains DHS's procedures for
implementing NEPA and was issued November 6, 2014, https://www.dhs.gov/ocrso/eed/epb/nepa.
---------------------------------------------------------------------------

NEPA allows Federal agencies to establish, in their NEPA
implementing procedures, categories of actions (``categorical
exclusions'') that experience has shown do not, individually or
cumulatively, have a significant effect on the human environment and,
therefore, do not require an environmental assessment or environmental
impact statement.\340\ The Instruction Manual, Appendix A lists the DHS
categorical exclusions.\341\
---------------------------------------------------------------------------

\340\ See 42 U.S.C. 4336(a)(2), 4336e(1).
\341\ See Instruction Manual, Appendix A, Table 1.
---------------------------------------------------------------------------

Under DHS NEPA implementing procedures, for an action to be
categorically excluded, it must 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.\342\
---------------------------------------------------------------------------

\342\ Instruction Manual section V.B(2)(a) through (c).

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

[[Page 8697]]

This proposed rule is limited to amending the regulatory criteria
for employment authorization for aliens with pending asylum
applications. The proposed rule is strictly administrative and
procedural and amends regulations governing the eligibility for and the
administration of employment authorization for aliens with pending
asylum applications. DHS has reviewed this proposed rule and finds that
no significant impact on the environment, or any change in
environmental effect will result from the amendments being promulgated
in this proposed rule.
Accordingly, DHS finds that the promulgation of this proposed
rule's amendments to current regulations clearly fits within
categorical exclusion A3 established in DHS's NEPA implementing
procedures as an administrative change with no change in environmental
effect, is not part of a larger Federal action, and does not present
extraordinary circumstances that create the potential for a significant
environmental effect.

I. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13,
109 Stat. 163, all Departments are required to submit to OMB, for
review and approval, any reporting or recordkeeping requirements
inherent in a rule. USCIS is revising two information collections in
association with this rulemaking action:
Form I-589
USCIS invites the general public and other Federal agencies to
comment on the impact to the proposed collection of information. In
accordance with the PRA, the information collection notice is published
in the Federal Register to obtain comments regarding the proposed edits
to the information collection instrument.
Comments are encouraged and will be accepted for 60 days from the
publication date of the proposed rule. All submissions received must
include the OMB Control Number 1615-0067 in the body of the letter and
the agency name. To avoid duplicate submissions, please use only one of
the methods under the ADDRESSES and Public Participation sections of
this rule to submit comments. Comments on this information collection
should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
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 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: Individuals or households. Form I-
589 is necessary to determine whether an alien applying for asylum and/
or withholding of removal in the United States is classified as refugee
and is eligible to remain in the United States.
(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 I-589 is
approximately 152,542 and the estimated hour burden per response is 12
hours per response; the estimated total number of respondents for the
information collection I-589 (online filing) is approximately 50,837
and the estimated hour burden per response is 11 hours per response,
and the estimated number of respondents providing biometrics is 192,278
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 2,620,526 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $83,792,148.
Form I-765
USCIS invites the general public and other Federal agencies to
comment on the impact to the proposed collection of information. In
accordance with the PRA, the information collection notice is published
in the Federal Register to obtain comments regarding the proposed edits
to the information collection instrument.
Comments are encouraged and will be accepted for 60 days from the
publication date of the proposed rule. All submissions received must
include the OMB Control Number 1615-0040 in the body of the letter and
the agency name. To avoid duplicate submissions, please use only one of
the methods under the ADDRESSES and Public Participation sections of
this rule to submit comments. Comments on this information collection
should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
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 DHS
sponsoring the collection: I-765; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. Form I-
765 collects information needed to determine if an alien is eligible
for an initial EAD, a replacement EAD, or a subsequent EAD upon the
expiration of a previous EAD under the same eligibility category.
Aliens in many immigration statuses are required to possess an EAD as
evidence of employment authorization. To be authorized for employment,
an alien must be lawfully admitted for permanent residence or
authorized to be so employed by the INA or under regulations issued by
DHS. Pursuant to statutory or regulatory authorization,

[[Page 8698]]

certain classes of aliens are authorized to be employed in the United
States without restrictions as to location or type of employment as a
condition of their admission or subsequent change to one of the
indicated classes. USCIS may determine the validity period assigned to
any document issued evidencing an alien's authorization to work in the
United States. These classes of aliens authorized to accept employment
are listed in 8 CFR 274a.12. USCIS also collects biometric information
from certain aliens applying for employment authorization to verify the
alien's identity, check or update their background information, and
produce the EAD card. An applicant for employment authorization can
apply for a Social Security number and Social Security card using Form
I-765.
(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 I-765
(paper) is 1,682,157 and the estimated hour burden per response is 4.72
hours; the estimated total number of respondents for the information
collection I-765 (electronic) is 455,653 and the estimated hour burden
per response is 4.35 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 0.50 hours; the estimated total
number of respondents for the information collection Biometric
Processing is 302,355 and the estimated hour burden per response is
1.17 hours; the estimated total number of respondents for the
information collection Passport-Style Photographs is 2,286,000 and the
estimated hour burden per response is 0.50 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 12,054,985 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $400,895,820.

J. Executive Order 14192 (Unleashing Prosperity Through Deregulation)

This propose ruled is exempt from E.O. 14192, Unleashing Prosperity
Through Deregulation. DHS has determined that this proposed rule is
being issued with respect to national security, homeland security, and
immigration-related functions of the United States as described in
section 5(a) of E.O. 14192.

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

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

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 proposes to codify in regulation amendments to
parts 208 and 274a of chapter I of title 8 of the Code of Federal
Regulations as follows:

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

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

Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Public Law 110-229; 8 CFR part 2; Pub. L. 115-218.

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 filed with USCIS must be properly filed
in accordance with Sec. 103.2(a) of this chapter and the form
instructions. USCIS will record the receipt date of a complete asylum
application in accordance with Sec. 103.2(a)(7) of this chapter. The
receipt of an asylum application will begin the 365 calendar-day
waiting period after which the applicant may file an application for
employment authorization in accordance with Sec. 208.7. If an asylum
application does not comply with the requirements of Sec. 103.2(a) of
this chapter or the form instructions, the asylum application will be
deemed incomplete. USCIS will reject and return an application that is
incomplete.
* * * * *

Sec. 208.4 [Amended]

0
3. Amend Sec. 208.4 by:
0
a. In the introductory text, removing ``paragraph (b) of this section''
and adding in its place ``Sec. 208.3.''
0
b. In paragraph (b)(1), removing ``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
restrictions contained in sections 208(d) and 236(a) of the Act, and
except as otherwise provided in paragraph (iv) of this section, an
applicant for asylum will be eligible pursuant to Sec. Sec.
274a.12(c)(8) and 274a.13(a) of this chapter to request employment
authorization. The applicant must request employment authorization on
the form designated by USCIS, with the appropriate fee, and according
to the form instructions, and must submit biometrics at a scheduled
biometrics services appointment, in accordance with Sec. 103.2(b)(9)
of this chapter.
(ii) Period for filing.
(A) Initial applications for employment authorization received on
or after EFFECTIVE DATE OF THE FINAL RULE under this section, may be
submitted no earlier than 365 calendar days after the date on which a
complete asylum application submitted in accordance with Sec. Sec.
208.3 and 208.4 or Sec. Sec. 1208.3 and 1208.4 has been received. If
an application for employment authorization based on a pending asylum
application is filed before the expiration of the 365 calendar-day
waiting period, the employment authorization application will be
denied. If an asylum application has been rejected and returned as
incomplete in accordance with Sec. 208.3(c)(3), the 365 calendar-day
waiting period will commence upon the date of receipt of the complete
asylum application as recorded pursuant to Sec. Sec. 208.3(c)(3) and
103.2(a)(7) of this chapter.
(B) Initial applications for employment authorization received
before EFFECTIVE DATE OF THE FINAL RULE may not be granted prior to the
expiration of the 180-day period following the filing of the asylum
application filed on or after April 1, 1997. Any delay requested or
caused by the applicant shall not be counted as part of these time
periods, including delays caused by failure without good cause to
follow the requirements for fingerprint processing. Such time periods
shall also be extended by the

[[Page 8699]]

equivalent of the time between issuance of a request for evidence
pursuant to Sec. 103.2(b)(8) of this chapter and the receipt of the
applicant's response to such request.
(iii) Processing timeframe. For initial applications for employment
authorization received on or after EFFECTIVE DATE OF THE FINAL RULE
under this section, USCIS will have 180 days to adjudicate an initial
application for employment authorization, except for those applications
requiring additional review for background checks or vetting. For
initial applications for employment authorization received before
EFFECTIVE DATE OF THE FINAL RULE, USCIS will have 30 days to adjudicate
an initial application for employment authorization, except for those
applications requiring additional review for background checks or
vetting.
(iv) Asylum applicants who are ineligible for employment
authorization. An applicant for asylum is not eligible for employment
authorization if:
(A) There is reason to believe that the applicant may be barred
from a grant of asylum due to the applicability of one of the criminal
bars to asylum under sections 208(b)(2)(A)(ii)-(iii).
(B) An asylum officer or an Immigration Judge has denied the
applicant's asylum application within the 365 calendar-day waiting
period or before the adjudication of the initial request for employment
authorization;
(C) The applicant filed his or her asylum application on or after
EFFECTIVE DATE OF THE FINAL RULE and filed the application after the 1-
year filing deadline as described in Sec. 208.4(a)(2) of this chapter,
unless:
(1) An 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 Sec. Sec. 208.4 and 1208.4 of this
chapter, or
(2) The applicant was under USCIS' initial jurisdiction as an
unaccompanied alien child as defined in 6 U.S.C. 279(g)(2); or
(D) 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 EFFECTIVE DATE OF THE FINAL RULE unless the
alien demonstrates that he or she:
(1) without delay, but no later than 48 hours after the entry or
attempted entry, indicated to an immigration officer an intention to
apply for asylum or expressed to an immigration officer a fear of
persecution or torture;
(2) 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 the purpose of circumvention of
the orderly processing of asylum applicants at a U.S. port of entry; or
(3) Is, or at any time since their most recent entry was determined
to be, an unaccompanied alien child as defined in 6 U.S.C. 279(g)(2).
(v) Derogatory information. If USCIS discovers derogatory
information during the adjudication of an application for employment
authorization for an alien with a pending asylum application, USCIS may
prioritize the alien's asylum application for adjudication.
(2)(i) Pausing and Restarting Acceptance of Initial Applications
for Employment Authorization. If the average USCIS processing time for
adjudicating affirmative asylum applications is greater than 180 days
for all applications for asylum currently pending before USCIS for the
preceding 90 consecutive days, USCIS will not accept initial
applications for employment authorization under Sec. Sec.
274a.12(c)(8) and 274a.13(a) of this chapter. USCIS will process
pending applications for employment authorization under Sec. Sec.
274a.12(c)(8) and 274a.13(a) of this chapter received prior to the
pause. If the average quarterly USCIS processing time for adjudicating
affirmative applications is less than or equal to 180 days for a period
of 90 consecutive days, USCIS will again accept initial applications
for employment authorization under Sec. Sec. 274a.12(c)(8) and
274a.13(a) of this chapter.
(ii) Basis for decision of pause. The Director of USCIS will
announce the need to pause or accept initial applications for
employment authorization under Sec. Sec. 274a.12(c)(8) and 274a.13(a)
of this chapter based only on the average USCIS processing time for
adjudicating affirmative asylum applications as described above. This
decision is not subject to discretion.
(iii) Announcement of pause and publication of processing times.
USCIS will publish on its website the quarterly processing times for
affirmative asylum applications. USCIS will announce on its website
whether USCIS will accept and whether USCIS has paused the acceptance
of initial applications for employment authorization under Sec. Sec.
274a.12(c)(8) and 274a.13(a) of this chapter and will provide the
quarterly processing times supporting the decision made by the Director
of USCIS to accept or pause acceptance of initial applications for
employment authorizations under Sec. Sec. 274a.12(c)(8) and 274a.13(a)
of this chapter.
(3) The provisions of paragraphs (a)(1) and (2) of this section
apply to applications for asylum filed on or after January 4, 1995.
(4) Employment authorization pursuant to Sec. 274a.12(c)(8) of
this chapter may not be granted to an alien who fails to appear for a
scheduled interview before an asylum officer or a hearing before an
Immigration Judge, or a biometrics appointment, unless the applicant
demonstrates that the failure to appear was the result of exceptional
circumstances.
(b) Renewal. Employment authorization will be renewable, in
increments to be determined by USCIS, for the continuous period of time
necessary for the asylum officer or Immigration Judge to decide the
asylum application and, if necessary and the request for review was
timely, for completion of any administrative or judicial review. The
alien must request renewal of employment authorization on the form and
in the manner prescribed by USCIS and according to the form
instructions, with the appropriate fee, and must submit biometrics at a
scheduled biometrics services appointment, in accordance with Sec.
103.2(b)(9) of this chapter. For purposes of employment authorization,
USCIS requires that an alien establish that he or she has continued to
pursue an asylum application before an Immigration Judge or sought
administrative or judicial review by presenting one of the following,
depending on the stage of the alien's immigration proceedings:
(1) If the alien's case is pending in proceedings before the
Immigration Judge, and the alien wishes to continue to pursue his or
her asylum application, a copy of any asylum denial by USCIS, the USCIS
referral notice, or the charging document placing the alien in such
proceedings;
(2) If the Immigration Judge has denied asylum, a copy of the
document issued by the Board of Immigration Appeals to show that a
timely appeal has been filed; or
(3) If the Board of Immigration Appeals has dismissed the alien's
appeal, or sustained an appeal by DHS, a copy of the petition for
judicial review or for habeas corpus pursuant to section 242 of the
Act, date stamped by the appropriate court.
(c) Termination. In addition to the termination and revocation
provisions under Sec. 274a.14 of this chapter, employment
authorization granted under this section will terminate as follows,
even if the expiration date specified on the employment

[[Page 8700]]

authorization document has not been reached:
(1) immediately following the denial of an asylum application by an
asylum officer, unless the case is referred to an Immigration Judge;
(2) on the date that is 30 days after the date on which an
Immigration Judge denies an asylum application, unless the alien makes
a timely appeal to the Board of Immigration Appeals; or
(3) immediately following denial or dismissal by the Board of
Immigration Appeals of an appeal of a denial of an asylum application.

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
5. The authority citation for part 274a continues 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
6. Amend Sec. 274a.12 by revising paragraph (c)(8) to 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 part 208 of this
chapter, where that application remains pending, is eligible to apply
for employment authorization under Sec. 208.7 of this chapter.
Employment authorization may be granted according to the provisions of
Sec. 208.7 of this chapter in increments to be determined by USCIS and
will expire on a specified date subject to the provisions regarding
termination in 8 CFR 208.7(c) and 274a.14.
* * * * *
0
7. Amend Sec. 274a.13 by revising paragraphs (a)(1) and (2) to read as
follows:

Sec. 274a.13 Application for employment authorization.

(a) * * *
(1) The approval of applications filed under Sec. 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 application for an initial employment authorization or for a
renewal of employment authorization filed in relation to a pending
claim for asylum or withholding of removal must be filed and
adjudicated in accordance with Sec. 208.7 of this chapter.
* * * * *

Kristi Noem,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2026-03595 Filed 2-20-26; 8:45 am]
BILLING CODE 9111-97-P