Potential Revised Rules for Asylum Applicants

If finalized in the form that the Department has proposed, the new DHS regulations would:

  • Remove current regulatory language providing that an application for asylum will automatically be deemed “complete” if USCIS fails to return the incomplete application to the alien within a 30-day period. Instead, any application that is not fully executed, signed,with a valid signature, and filed in full compliance with the regulations governing an asylum request at intake will be rejected and not associated with any filing date.
  • Provide that a request to amend a pending application for asylum or to supplement such an application may be treated as an applicant-caused delay that — if unresolved on the date the same alien’s employment authorization application is adjudicated — will result in the denial of an application for employment authorization.
  • Establish U.S. Citizenship and Immigration Services (USCIS) jurisdiction over all applications for employment authorization based on pending or approved applications for asylum.
  • Replace current 150-day or 180-day waiting periods before asylum applicants are eligible to apply for EAD (employment authorization documents)  with a year-long (365-day) waiting period following the date the alien’s asylum application is received.
  • Provide that if any unresolved applicant-caused delays in the asylum adjudication exist on the date the (c)(8) EAD application is adjudicated, the EAD application will be denied.
  • Exclude from eligibility for employment authorization aliens who have failed to file for asylum within one year (unless and until an asylum officer or IJ determines that an exception to the statutory requirement to file for asylum within one year applies).
  • With limited exceptions, make any alien who entered or attempted to enter the United States at a place and time other than lawfully through a U.S. port of entry ineligible to receive EAD under the regulation at 8 CFR 274a.12(c)(8) (** Note:  This regulation directs that application for employment authorization must be made by “.[a]n alien who has filed a complete application for asylum or withholding of deportation or removal pursuant to 8 CFR part 208, whose application …has not been decided, and who is eligible to apply for employment authorization under § 208.7 of this chapter because the 150-day period set forth in that section has expired.”)
  • Exclude from (c)(8) EAD eligibility any alien who has (1) been convicted of an aggravated felony as described in the INA,  (2) been convicted of any felony in the United States, (3) been convicted of a serious non-political crime outside the United States, (4) been convicted in the United States of domestic violence or assault (except aliens who have been battered or subjected to extreme cruelty and who were not the primary perpetrators of violence in their relationships), child abuse or neglect; possession or distribution of controlled substances; or driving or operating a motor vehicle under the influence of alcohol or drugs, regardless of how the offense is classified by the state, local, or tribal jurisdiction.
  • Provide that USCIS will consider, on a purely discretionary and case-by-case basis, whether an alien who has unresolved domestic charges or arrests that involve domestic violence, child abuse, possession or distribution of controlled substances, or driving under the influence of drugs or alcohol, will be granted employment authorization.
  • Eliminate any provision for the issuance of recommended approvals for a grant of affirmative asylum, and remove current regulatory language referring to “recommended approvals,” such that USCIS would no longer issue recommended approvals for asylum.
  • Permit aliens’ employment authorization documents to be renewed during the pendency of their asylum applications, including in immigration court and before the Board of Immigration Appeals (BIA), for such periods as are determined by USCIS in its discretion, but not to exceed increments of two years.
  • Require applicants to submit biometrics (fingerprints) at a scheduled biometrics services appointment for all initial and renewal applications for employment authorization, and to pay a fee for the mandatory biometrics processing.  (Under the proposed rules, DHS would require aliens with an initial or renewal (c)(8) EAD application that is pending on the effective date of the new regulations to appear for biometrics collection,  but would not collect the biometrics services fee from these aliens.)
    Provide that when a USCIS asylum officer denies an alien’s request for asylum, any employment authorization associated with a pending asylum application, including any automatic extension of employment authorization, will be terminated effective on the date the asylum application is denied. (However, if a USCIS asylum officer determines that the alien has no lawful immigration status and is not eligible for asylum, the asylum officer will refer the case to the Department of Justice Executive Office of Immigration Review (DOJ-EOIR) and place the alien in removal proceedings. Employment authorization will be available to the alien while in removal proceedings and the application for asylum is under review before an Immigration Judge.).
  • Provide that if USCIS refers a case to DOJ-EOIR, employment authorization would continue for 30-days following the date that the Immigration Judge (IJ) denies the asylum application to account for a possible appeal of the denial to the Board of Immigration Appeals (BIA). If the alien files a timely appeal, employment authorization would continue, and the alien would be able to file a renewal EAD application, if otherwise eligible. Employment authorization would be prohibited during the Federal court appeal process, but the alien could request a (c)(8) EAD if the case is remanded to DOJ-EOIR for a new decision.
    Clarify existing USCIS policy that only an applicant who is physically in the United States may apply for employment authorization.
  • Include a severability clause to the effect that: in the event any provision of the new regulations is not implemented for whatever reason (e.g., if a provision were to be invalidated by a court in litigation), DHS intends that the remaining provisions be implemented as an independent rule in accordance with the stated purpose of this rule.
  • Clarify that an applicant’s failure to appear to receive and acknowledge receipt of the decision following an interview and an applicant’s request for an extension to submit additional evidence are applicant-caused delays for purposes of eligibility for employment authorization (and therefore may serve as grounds for denial of applications for EAD). The amendments would also remove references to an “Asylum EAD clock,” and would provide that documentary evidence must be submitted no later than 14 calendar days before the interview with an asylum officer takes place to improve administrative efficiency and aid in the meaningful examination and exploration of evidence in preparation for and during the interview.  As a matter of discretion, the asylum officer could consider evidence submitted within the fourteen (14) calendar days in advance of the interview date or could grant the applicant a brief extension of time during which the applicant may submit additional evidence.
  • Clarify that an asylum applicant’s failure to appear for an asylum interview or biometric services appointment may lead to referral or dismissal of the asylum application, and may be treated as an applicant-caused delay affecting eligibility for employment authorization. In addition, the rule would clarify that USCIS is not obligated to send any notice to the applicant about his or her failure to appear at a scheduled biometrics appointment or an asylum interview as a prerequisite to making a decision on the application, which may include dismissing the asylum application or referring it to an IJ.
    Incorporate biometrics collection requirements (generally, collection of fingerprints, photographs, and signatures) into the employment authorization process for asylum seekers:, and require applicants to appear at an Application Support Center (ASC) for biometrics collection and pay a biometric services fee.
  • Replace references to fingerprint processing and fingerprint appointments with the term presently used by USCIS—“biometric services appointment.”
  • Remove regulatory language referring to “recommended approvals” of employment authorization, and clarify that aliens who have been paroled into the United States after being found to have a credible fear or reasonable fear of persecution or torture may apply for employment authorization under 8 CFR 274a.12(c)(8), if eligible, but may not apply under 8 CFR 274a.12(c)(11) (which specifically pertains to aliens paroled into the United States temporarily for urgent humanitarian reasons or significant public benefit).
  • Provide that employment authorization will not be granted if a denial of an asylum application is under judicial review,
  • Provide that any employment authorization granted under 8 CFR 274a.12(c)(8) that was automatically extended pursuant 8 CFR 274a.13(d)(1) will automatically terminate on the date the asylum officer, IJ, or the BIA denies the asylum application.
  • Add language cross-referencing any automatic EAD termination provision elsewhere in DHS regulations, including certain automatic termination provisions being proposed in the new rule.