Asylum Application, Interview, and Employment Authorization for Applicants

Federal RegisterNov 14, 2019

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 208 and 274a

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

RIN 1615-AC27

Asylum Application, Interview, and Employment Authorization for Applicants

AGENCY:

Department of Homeland Security.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The U.S. Department of Homeland Security (DHS) is proposing to modify its current regulations governing asylum applications, interviews, and eligibility for employment authorization based on a pending asylum application.

DATES:

Written comments and related material to this proposed rule, including the proposed information collections, must be received to the online docket via

www.regulations.gov,

or to the mailing address listed in the

ADDRESSES

section below, on or before January 13, 2020.

ADDRESSES:

You may submit comments on this proposed rule using one of the following methods:

•

Federal eRulemaking Portal [preferred]: http://www.regulations.gov.

Follow the website instructions for submitting comments.

•

Mail:

Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW, Washington, DC 20529. To ensure proper handling, please reference DHS Docket No. USCIS-2019-0011 in your correspondence. Mail must be postmarked by the comment submission deadline.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation

II. Executive Summary

A. Major Provisions of the Regulatory Action

B. Summary of Costs and Benefits, and Transfer of Payment

III. Purpose of the Proposed Rule

A. Efforts To Reform the Asylum System

B. Need for Reform

IV. Background

A. Legal Authority

B. Eligibility for Asylum

C. Affirmative vs. Defensive Asylum Filings

D. Employment Authorization for Asylees and Asylum Applicants

E. Asylum and EAD Adjudications

V. Discussion of the Proposed Rule

A. 365-Day Waiting Period To Apply for Asylum-Application-Based EADs

B. One-Year Filing Deadline

C. Criminal Bars to Eligibility

D. Procedural Reforms

E. Termination of Employment Authorization

1. Denial of Asylum Application by USCIS Asylum Officer

2. Termination After Denial by IJ

3. Automatic Extensions of Employment Authorizations and Terminations

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

G. Illegal Entry

H. Effective Date of the Final Rule

VI. Statutory and Regulatory Requirements

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

1. Summary

2. Background and Purpose of Rule

3. Population

4. Transfers, Costs, and Benefits of This Proposed Rule

B. Regulatory Flexibility Act (RFA)

C. Congressional Review Act

D. Unfunded Mandates Reform Act of 1995 (UMRA)

E. Executive Order 13132 (Federalism)

F. Executive Order 12988 (Civil Justice Reform)

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

H. Family Assessment

I. National Environmental Policy Act (NEPA)

J. National Technology Transfer and Advancement Act

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

L. Executive Order 13045 (Protection of Children From Environmental Health Risks and Safety Risks)

M. Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use)

N. Paperwork Reduction Act (PRA)

Table of Abbreviations

ASC—Application Support Center

BCR—Biometrics Collection Rate

BFR—Biometrics Fee Ratio

BIA—Board of Immigration Appeals

BLS—Bureau of Labor Statistics

CAT—Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

CBP—U.S. Customs and Border Protection

CFR—Code of Federal Regulations

CPMS—Customer Profile Management System

DHS—U.S. Department of Homeland Security

DOJ—Department of Justice

DOS—Department of State

E.O.—Executive Order

EAD—Employment Authorization Document

EOIR—Executive Office for Immigration Review

FBI—Federal Bureau of Investigation

FDNS—Fraud Detection and National Security Directorate

FIFO—First In/First Out

Form I-589—Application for Asylum and for Withholding of Removal

Form I-765—Application for Employment Authorization

Form I-863—Notice of Referral to Immigration Judge

FY—Fiscal Year

GSA—General Services Administration

HSA—Homeland Security Act of 2002

ICE—U.S. Immigration and Customs Enforcement

IIRIRA—Illegal Immigration Reform and Immigrant Responsibility Act of 1996

INA—Immigration and Nationality Act

IRCA—Immigration Reform and Control Act of 1986

INS—Immigration and Naturalization Service

LCA—Labor Condition Application

LIFO—Last In, First Out

NEPA—National Environmental Policy Act

NTA—Notice to Appear

OMB—Office of Management and Budget

PM—Presidential Memorandum

PRA—Paperwork Reduction Act

RFA—Regulatory Flexibility Act

Secretary—Secretary of Homeland Security

UMRA—Unfunded Mandates Act of 1995

U.S.C.—United States Code

USCIS—U.S. Citizenship and Immigration Services

I. Public Participation

All interested parties are invited 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, legal, environmental, or federalism effects that might result from this proposed rule. Comments must be submitted in English or include an English translation. Comments that will provide the most assistance to DHS 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 supports such recommended change.

Instructions:

If you submit a comment, you must include the agency name (U.S. Citizenship and Immigration Services) and the DHS Docket No. USCIS-2019-0011 for this rulemaking. Please note that DHS has published a notice of proposed rulemaking (NPRM)

entitled “Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications,” DHS Docket No. USCIS-2018-0001, separate from this NPRM. The two NPRMs include distinct proposals, and for this proposed rule, DHS will only consider comments submitted to Docket No. USCIS-2019-0011. Please ensure that you submit your comments to the correct docket.

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 Act notice that is available via the link in the footer of

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-2019-0011. 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

DHS seeks to reduce incentives for aliens to file frivolous, fraudulent, or otherwise non-meritorious asylum applications to obtain employment authorization filed by asylum applicants seeking an employment authorization document pursuant to 8 CFR 274a.12(c)(8) (hereinafter “(c)(8) EAD” or “EAD”) or other non-asylum-based forms of relief such as cancellation of removal, and to discourage illegal entry into the United States. DHS also seeks to reduce incentives for aliens to intentionally delay asylum proceedings in order to extend the period of employment authorization based on the pending application, and to simplify the adjudication process. DHS seeks to prevent those asylum applicants who have committed certain crimes from obtaining a (c)(8) employment authorization document, and to make the decision to grant (c)(8) employment authorization to asylum applicants discretionary, in line with USCIS' statutory authority.

DHS is proposing to modify its current regulations governing asylum applications, interviews, and eligibility for employment authorization based on a pending asylum application. DHS proposes to modify its regulations in the following areas:

•

Extend the waiting period to apply for employment authorization:

DHS proposes that asylum applicants wait 365 calendar days from the date their asylum applications are received by USCIS or the Department of Justice, Executive Office for Immigration Review (DOJ-EOIR) before they may apply for and receive an EAD. DHS also proposes that USCIS will deny (c)(8) EAD applications if there are any unresolved applicant-caused delays on the date of the EAD adjudication.

•

Eliminate the issuance of recommended approvals for a grant of affirmative asylum:

DHS proposes that USCIS will no longer issue recommended approvals for asylum. These are typically cases where an asylum officer has made a preliminary determination to grant asylum but has not yet received the results of the mandatory, confidential investigation of the alien's identity and background.

•

Revise eligibility for employment authorization:

DHS proposes to exclude aliens who, absent good cause, entered or attempted to enter the United States at a place and time other than lawfully through a U.S. port of entry from eligibility for (c)(8) employment authorization. DHS also proposes to exclude from eligibility for employment authorization aliens who have failed to file for asylum within one year of their last entry, unless and until an asylum officer or Immigration Judge (IJ) determines that an exception to the statutory requirement to file for asylum within one year applies. Because the one-year filing deadline does not apply to unaccompanied alien children, under this proposal, the one-year filing deadline would not exclude unaccompanied alien children from eligibility to obtain an employment authorization document. DHS also proposes to exclude from eligibility aliens whose asylum applications have been denied by an asylum officer or an IJ during the 365-day waiting period or before the request for initial employment authorization has been adjudicated. DHS further proposes to exclude from eligibility for employment authorization aliens who have: (1) Been convicted of any aggravated felony as defined under section 101(a)(43) of the INA, 8 U.S.C. 1101(a)(43), (2) been convicted of any felony in the United States or serious non-political crime outside the United States or (3) been convicted of certain public safety offenses in the United States. If an applicant has unresolved domestic arrests or pending charges involving domestic violence, child abuse, possession or distribution of controlled substances,

or driving under the influence of drugs or alcohol, USCIS will decide at its discretion if it will grant the applicant employment authorization, based on the totality of the circumstances. DHS seeks public comment on whether these and additional crimes should be included as bars to employment authorization. DHS also proposes to make the decision to grant (c)(8) employment authorization discretionary to align with the discretionary authority Congress conferred in INA 208(d)(2), 8 U.S.C. 1158(d)(2). DHS is also clarifying that only applicants for asylum who are located in the United States may apply for employment authorization. DHS is adding a severability clause in the event that, for whatever reason, any of the provisions are not implemented.

See

section 102 of the Controlled Substances Act (21 U.S.C. 802).

•

Revise the provisions for EAD termination:

DHS proposes revising when (c)(8) employment authorization terminates. DHS proposes that when a USCIS asylum officer denies an alien's request for asylum, any employment authorization associated with a pending asylum application will be terminated effective on the date of asylum application denial. If a USCIS asylum officer determines that the alien is not eligible for asylum, the asylum officer will typically refer the case to DOJ-EOIR. DHS proposes that if USCIS refers a case to DOJ-EOIR, employment authorization would continue, and the alien would be eligible to continue applying for EAD renewals, if needed, until the IJ renders a decision on the asylum application. If the IJ denies the asylum application, the alien's employment authorization would terminate 30 days after denial, unless the alien filed a timely appeal with the Board of Immigration Appeals (BIA). Renewal of employment authorization would be available to the alien during the pendency of the appeal to the BIA. DHS, however, would prohibit employment authorization during the Federal court appeal process, but the alien could reapply for a (c)(8) EAD if the Federal court remanded the asylum case to BIA.

•

Change provisions for filing an asylum application:

DHS proposes to remove the requirement that USCIS return an incomplete application within 30 days or have it deemed complete for

adjudication purposes. DHS also proposes that amending an asylum application, requesting an extension to submit additional evidence beyond a time that allows for its meaningful consideration prior to the interview, or failing to appear to receive a decision as designated, will constitute an applicant-caused delay, which, if not resolved by the date the application for employment authorization is adjudicated, will result in the denial of that employment authorization application. DHS also is clarifying the effect of an applicant's failure to appear for either an asylum interview or a scheduled biometric services appointment on a pending asylum application.

•

Limit EAD validity periods:

DHS proposes to clarify that the validity period of (c)(8) employment authorization is discretionary and further proposes that any (c)(8) EAD validity period, whether initial or renewal, will not exceed increments of two years. USCIS may set shorter validity periods for initial and renewal (c)(8) EADs.

•

Incorporate biometrics collection requirements into the employment authorization process for asylum seekers:

DHS proposes to incorporate biometrics collection into the employment authorization process for asylum applicants, which would require applicants to appear at an Application Support Center (ASC) for biometrics collection and pay a biometric services fee. At present, biometrics collection generally refers to the collection of fingerprints, photographs, and signatures.

Such biometrics collection will allow DHS to submit a (c)(8) applicant's fingerprints to the Federal Bureau of Investigation (FBI) for a criminal history check, facilitate identity verification, and facilitate (c)(8) EAD card production. DHS will require applicants with a pending initial or renewal (c)(8) EAD on the effective date of this rule to appear at an ASC for biometrics collection but DHS will not collect the biometrics services fee from these aliens. DHS will contact applicants with pending applications and provide notice of the place, date and time of the biometrics appointment.

See https://www.uscis.gov/forms/forms-information/preparing-your-biometric-services-appointment

(describing biometrics as including fingerprints, photographs, and digital signature) (last visited July 11, 2019).

•

Clarify employment authorization eligibility for aliens who have been paroled after being found to have a credible or reasonable fear of persecution or torture:

DHS is clarifying that aliens who have been paroled after establishing a credible fear or reasonable fear of persecution or torture under 8 CFR 208.30 may not request a discretionary grant of employment authorization under 8 CFR 274a.12(c)(11), but may still apply for a (c)(8) EAD, if eligible. DHS seeks public comment on this proposal and whether the (c)(11) category (parole-based EADs) should be further limited, such as to provide employment authorization only to those DHS determines are needed for foreign policy, law enforcement, or national security reasons, especially since parole is meant only as a temporary measure to allow an alien's physical presence in the United States until the need for parole is accomplished or the alien can be removed.

Specify the effective date:

DHS proposes to apply changes made by this rule only to initial and renewal applications for employment authorization under 8 CFR 274a.12(c)(8) and (c)(11) filed on or after the effective date of the final rule, with limited exceptions. DHS will apply two of the proposed ineligibility provisions—those relating to criminal offenses and failure to file the asylum application within one year of the alien's last entry to the US—to initial and renewal applications for employment authorization applications pending on the effective date of the final rule. In order to implement the criminal ineligibility provision, DHS will require applicants with an initial or renewal (c)(8) EAD application pending on the effective date of this rule to appear at an ASC for biometrics collection but DHS will not collect the biometrics services fee from these aliens. DHS will contact applicants with pending applications and provide notice of the place, date and time of the biometrics appointment. If applicable, initial applications filed before the effective date of this rule by members of the

Rosario

class will not be subject to any of the provisions of this proposed rule.

DHS seeks public comment on whether other aliens, such as those affected by the Settlement Agreement in

American Baptist Churches

Thornburgh,

760 F. Supp. 796 (N.D.Cal.1991), or those whose asylum applications predate the 1995 asylum reforms, should be subject to all, some or none of the provisions in this rule.

On May 22, 2015, plaintiffs in

Rosario

USCIS,

No. C15-0813JLR (W.D. Wash.), brought a class action in the U.S. District Court for the Western District of Washington to compel USCIS to comply with the 30-day provision of 8 CFR 208.7(a)(1). On July 26, 2018, the court enjoined USCIS from further failing to adhere to the 30-day deadline for adjudicating EAD applications. DHS published a proposed rule to remove this timeframe on September 9, 2019, where it proposed to grandfather into the 30-day adjudication timeframe those class members who filed their initial EAD applications prior to the effective date of any final rule that changes the 30-day DHS timeline. To ensure compliance with the court order and consistency with the 30-day proposed rule, USCIS further proposes not to apply this rule to any initial EAD application filed by a

Rosario

class member that is pending as of the effective date of this rule, so long as the

Rosario

injunction remains in effect. USCIS has not included proposed regulatory text to this effect, but would include such text in the event that members of the

Rosario

class remain as of the date of publication of a final rule.

DHS is updating the regulations to reflect the amendments made by this proposed rule, and proposing revisions to existing USCIS information collections to accompany the proposed regulatory changes.

A. Major Provisions of the Regulatory Action

DHS proposes to include the following major changes:

•

Amending 8 CFR 208.3, Form of application.

The amendments to this section propose to remove the language providing that an application for asylum will automatically be deemed “complete” if USCIS fails to return the incomplete application to the alien within a 30-day period. This provision is inconsistent with how all other applications and petitions for immigration benefits are treated, creates an arbitrary circumstance for treating a potentially incomplete asylum application as complete, and imposes an unnecessary administrative burden on USCIS. DHS proposes to conform its current process for determining when an asylum application is received and complete to the general rules governing all other immigration benefits under 8 CFR 103.2, in addition to the specific asylum rules under 8 CFR 208.3 and 208.4. The regulations at 8 CFR 103.2(a)(7) state that USCIS will record the receipt date as of the actual date the benefit request is received at the designated filing location, whether electronically or in paper, provided that it is signed with a valid signature, executed, and filed in compliance with the regulations governing that specific benefit request. If a fee is required, the benefit request must also include the proper fee. Benefit requests not meeting these acceptance criteria are rejected at intake. Rejected benefit requests do not retain a filing date.

•

Amending 8 CFR 208.4, Filing the application.

The proposed amendments to this section 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, and if unresolved on the date the employment authorization application

is adjudicated, will result in the denial of the application for employment authorization.

•

Amending 8 CFR 208.7, Employment authorization.

DHS has published a notice of proposed rulemaking (NPRM) entitled “Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications,” DHS Docket No. USCIS-2018-0001, separate from this NPRM, which addresses application processing times. Processing times are therefore not addressed here.

○

Jurisdiction.

The proposed amendments to this section clarify that USCIS has jurisdiction over all applications for employment authorization based on pending or approved applications for asylum.

○

365-day Waiting Period.

The proposed amendments to this section also replace the 150-day waiting period and the 180-day asylum EAD clock. The proposed amendments will make asylum applicants eligible to apply for employment authorization 365 calendar days from the date their asylum application is received. The 365-day period was based on an average of the current processing times for asylum applications which can range anywhere from six months to over 2 years, before there is an initial decision, especially in cases that are referred to DOJ-EOIR from an asylum office. The amendments propose 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. Consistent with the current regulation, DHS also proposes to exclude from eligibility aliens whose asylum applications have been denied by an asylum officer or an IJ during the waiting period of at least 365-days or before the adjudication of the initial request for employment authorization.

○

One Year Filing Deadline.

The proposed amendments to this section also 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.

○

Illegal Entry.

The proposed amendments to this section also 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 a (c)(8) EAD, with limited exceptions.

○

Criminal convictions.

The rule proposes amendments to this section include excluding from (c)(8) EAD eligibility any alien who has (1) been convicted of an aggravated felony as described in section 101(a)(43) of the INA, 8 U.S.C. 1101(a)(43), (2) been convicted of any felony

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. USCIS will consider, on a case-by-case basis, whether an alien who has unresolved domestic charges or arrests that involve domestic violence, child abuse, possession or distribution of controlled substances, or driving under the influence of drugs or alcohol, warrant a favorable exercise of discretion for a grant of employment authorization.

See

18 U.S.C. 3156(a)(3) (the term “felony” means an offense punishable by a maximum term of imprisonment of more than one year).

○

Recommended Approvals.

The proposed amendments to this section also remove the language referring to “recommended approvals.” Under this proposal, USCIS would no longer issue grants of recommended approvals as a preliminary decision for affirmative asylum adjudications.

○

EAD Renewals.

The proposed amendments would permit renewals during the pendency of the asylum application, including in immigration court and at the BIA, for such periods as determined by USCIS in its discretion, but not to exceed increments of two years.

○

Submission of biometrics.

The proposed amendments would require applicants to submit biometrics at a scheduled biometrics services appointment for all initial and renewal applications for employment authorization. DHS will require applicants with a pending initial or renewal (c)(8) EAD on the effective date of this rule to appear at an ASC for biometrics collection but DHS will not collect the biometrics services fee from these aliens. DHS will contact applicants with pending applications and provide notice of the place, date and time of the biometrics appointment.

○

Termination After Denial by USCIS Asylum Officer.

The proposed amendments to this section 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. If a USCIS asylum officer determines that the alien has no lawful immigration status and is not eligible for asylum, the asylum officer will refer the case to DOJ-EOIR and place the alien in removal proceedings. Employment authorization will be available to the alien while in removal proceedings and the application for asylum is under review before an IJ.

○

Termination After Denial by an IJ or the BIA.

The rule proposes that if USCIS refers a case to DOJ-EOIR, employment authorization would continue for 30-days following the date that the IJ denies the asylum application to account for a possible appeal of the denial to the BIA. If the alien 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.

○

Eligibility.

The amendments to the section also clarify existing USCIS policy that only an applicant who is in the United States may apply for employment authorization.

○

Severability.

The amendments also include a severability clause. This section is drafted with provisions separated into distinct parts. In the event that any provision is not implemented for whatever reason, DHS intends that the remaining provisions be implemented as an independent rule in accordance with the stated purpose of this rule.

•

Amending 8 CFR 208.9, Procedure for interview before an asylum officer.

The amendments to this section 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. The amendments also remove references to the “Asylum EAD clock.” This section is further amended to 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 may consider evidence submitted within the fourteen (14) calendar days in advance of the interview date or may grant the applicant a brief extension of time during which the applicant may submit additional evidence.

•

Amending 8 CFR 208.10, Failure to appear for an interview before an asylum officer or for a biometric services appointment for the asylum application.

The amendments to this section seek to 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 clarifies 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. These amendments are intended to facilitate more timely and efficient case processing when applicants fail to appear for essential appointments. Finally, the amendments replace references to fingerprint processing and fingerprint appointments with the term presently used by USCIS—“biometric services appointment.”

•

Amending 8 CFR 274a.12, Classes of aliens authorized to accept employment.

The amendments to this section remove the language in 8 CFR 274a.12(c)(8) referring to “recommended approvals.” The amendments also delete an obsolete reference to the Commissioner of the former Immigration and Naturalization Service (INS) and replace it with a reference to USCIS. Amendments to this section also 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) (parole-related EADs). The amendments also provide that employment authorization will not be granted if a denial of an asylum application is under judicial review, in conformity with amendments proposed at 8 CFR 208.7. DHS seeks public comment on this proposal and whether the (c)(11) category (parole-based EADs) should be further limited, such as to provide employment authorization only to those DHS determines are needed for foreign policy, law enforcement, or national security reasons, especially since parole is meant only as a temporary measure to allow an alien's physical presence in the United States until the need for parole is accomplished or the alien can be removed.

•

Amending 8 CFR 274a.13, Application for employment authorization.

The proposed amendments to this section remove unnecessary references to the supporting documents required for submission with applications for employment authorization based on a pending asylum application and clarify that such employment authorization applications, like all other applications, petitions, or requests for immigration benefits, must be filed on the form designated by USCIS, in accordance with the form instructions, and along with any applicable fees. DHS is also proposing to amend 8 CFR 274a.13(a)(1) so that USCIS has discretion to grant applications for employment authorization filed by asylum applicants pursuant to 8 CFR 274a.12(c)(8) in keeping with its discretionary statutory authority under INA 208(d)(2), 8 U.S.C. 1158(d)(2). To conform the current automatic extension and termination provisions to the changes proposed under 8 CFR 208.7(b), the amendments to this section 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.

•

Amending 8 CFR 274a.14, Termination of employment authorization.

For purposes of clarity, the amendment to this section adds a new paragraph at 8 CFR 274a.14(a)(1) that cross-references any automatic EAD termination provision elsewhere in DHS regulations, including the automatic termination provisions being proposed by this rule in 8 CFR 208.7(b).

•

Effective date:

With limited exceptions, the rules in effect on the date of filing form I-765 will govern all initial and renewal applications for a (c)(8) EAD based on a pending asylum application and a (c)(11) EAD based on a grant of parole after establishing a credible fear or reasonable fear of persecution or torture. The criminal provisions and the failure to file the asylum application within one year of last entry will apply to initial and renewal EAD applications pending on the date the final rule is published. In order to implement the criminal ineligibility provision, DHS will require applicants with a pending initial or renewal (c)(8) EAD on the effective date of this rule to appear at an ASC for biometrics collection but DHS will not collect the biometrics services fee from these aliens. DHS will provide notice of the place, date and time of the biometrics appointment to applicants with pending (c)(8) EAD application. If applicable, initial (c)(8) EAD applications filed before the effective date by members of the

Rosario

class would not be affected by this proposed rule. DHS will allow aliens with pending asylum applications that have not yet been adjudicated and who already have received employment authorization before the final rule's effective date to retain their (c)(8) employment authorization until the expiration date on their EAD, unless the employment authorization is terminated or revoked on grounds in the existing regulations. DHS will also allow aliens who have already received employment authorization before the final rule's effective date under the (c)(11) eligibility category based on parole/credible fear to retain that employment authorization until their EAD expires, unless the employment authorization is terminated or revoked on grounds in the existing regulations. The proposals in this rule will not impact the adjudication of applications to replace lost, stolen, or damaged (c)(8) or (c)(11) EADs.

B. Summary of Costs, Benefits, and Transfer Payments

This proposed rule amends the (c)(8) EAD system primarily by extending the period that an asylum applicant must wait in order to be employment authorized, and by disincentivizing asylum applicants from causing delays in the adjudication of their asylum application. The Department has considered that asylum applicants may seek unauthorized employment without possessing a valid employment authorization document, but does not believe this should preclude the Department from making procedural adjustments to how aliens gain access to a significant immigration benefit. The provisions seek to reduce the incentives for aliens to file frivolous, fraudulent, or otherwise non-meritorious asylum applications primarily to obtain employment authorization and remain for years in the United States for economic purposes

The quantified maximum population this rule would apply to about 305,000 aliens in the first year the rule could take effect and about 290,000 annually thereafter. DHS assessed the potential impacts from this rule overall, as well as the individual provisions, and provides quantitative estimates of such

impacts where possible and relevant. For the provisions involving biometrics and the removal of recommended approvals, the quantified analysis covers the entire populations. For the 365-day EAD filing time proposal, the quantified analysis also covers the entire population; however, DHS relies on historical data to estimate the costs for affirmative cases and certain assumptions to provide a maximum potential estimate for the remaining affected population. For the provisions that would potentially end some EADs early, DHS could estimate only the portion of the costs attributable to affirmative cases because DHS has no information available to estimate the number of defensive cases affected.

DHS provides a qualitative analysis of the provisions proposing to terminate EADs earlier for asylum cases denied/dismissed by an IJ; remove employment eligibility for asylum applicants under the (c)(11) category, and; bar employment authorization for asylum applicants with certain criminal history, who did not enter at a U.S. port of entry, or who, with little exception, did not file for asylum within one year of their last arrival to the United States. As described in more detail in the unquantified impacts section, DHS does not have the data necessary to quantify the impacts of these provisions.

To take into consideration uncertainty and variation in the wages that EAD holders earn, all of the monetized costs rely on a lower and upper bound, benchmarked to a prevailing minimum wage and a national average wage, which generates a range. Specific costs related to the provisions proposed are summarized in Table 1. For the provisions in which impacts could be monetized, the single midpoint figure for the wage-based range is presented.

The populations reported in Table 1 reflect the maximum population that would be covered by the provision. Some of the populations that would incur monetized impacts are slightly different due to technical adjustments.

Table 1—Summary of Costs and Transfers of the Proposed Rule

Provision summary

Annual costs and transfers

(mid-point)

I. Quantified:

365-day EAD filing wait period (for DHS affirmative asylum cases and partial estimates for DHS referrals to DOJ)

Population: 39,000.

Cost: $542.7 million (quantified impacts for 39,000 of the 153,458 total population).

Reduction in employment tax transfers: $83.2 million (quantified impacts for 39,000 of the 153,458).

Cost basis: Annualized equivalence cost.

Summary: Lost compensation for a portion of DHS affirmative asylum cases that benefitted from initial EAD approvals who would have to wait longer to earn wages under the proposed rule; nets out cost-savings for persons who would no longer file under the rule; includes partial estimate of DHS referral cases to DOJ-EOIR and the apropos estimated tax transfers. It does not include impacts for defensively filed cases.

Biometrics requirement

Population for initial and renewal EADs: 289,751.

Population for pending EADs: 14,451.

Cost: $37,769,580.

Reduction in employment tax transfers: None.

Cost basis: Maximum costs of the provision, which would apply to the first year the rule could take effect.

Summary: For initial and renewal EADs, there would be time-related opportunity costs plus travel costs of submitting biometrics, as well as $85 fee for (c)(8) I-765 initial and renewal populations subject to the biometrics and fee requirements. A small filing time burden to answer additional questions and read associated form instructions in the I-765 is consolidated in this provision's costs. There would also be time-related opportunity costs plus travel costs of submitting biometrics for EADs pending on the effective date of the final rule.

Eliminate recommended approvals

Population: 1,930 annual.

Cost: $13,907,387.

Reduction in employment tax transfers: $2,127,830.

Cost basis: Annualized equivalence cost.

Summary: Delayed earnings and tax transfers that would have been earned for an average of 52 calendar days earlier with a recommended approval.

Terminate EADs if asylum application denied/dismissed (DHS)

Population: 575 (current and future).

Cost: $31,792,569.

Reduction in employment tax transfers: $4,864,263.

Cost basis: Maximum costs of the provision, which would apply to the first year the rule could take effect.

Summary: Forgone earnings and tax transfers from ending EADs early for denied/dismissed DHS affirmative asylum applications. This change would affect EADs that are currently valid and EADs for affirmative asylum applications in the future that would not be approved. DHS acknowledges that as a result of this proposed change, businesses that have hired such workers would incur labor turnover costs earlier than without this rule.

365-day EAD filing wait period (for the residual population)

Population: 114,458.

Cost: $1,189.6 million-$3,600.4 million (quantified impacts for the remaining 114,458 of the 153,458).

Reduction in employment tax transfers: $182.0 million-$550.9 million (quantified impacts for the remaining 114,458 of the 153,458).

Cost basis: Annualized equivalence cost.

Summary: Lost compensation for the population of approved annual EADs for which DHS does not have data to make a precise cost estimate; The costs reported are a maximum because the potential impact is based on the maximum impact of 151 days; in reality there would be lower-cost segments to this population and filing-cost savings as well.

II. Unquantified:

Revise (c)(11) category from I-765

Population: 13,000.

Cost: delayed/foregone earnings.

Cost basis; NA.

Summary: DHS does not know how many of the actual population will apply for an EAD via the (c)(8) I-765, but the population would be zero at a minimum and 13,000 at a maximum, with a mid-point of 6,500. The population would possibly incur delayed earnings and tax transfers by being subject to the 365-day EAD clock (it is noted that this population would also incur costs under the biometrics provision, above), or lost earnings if they do not apply for a (c)(8) EAD. There is potentially countervailing cost-savings due to a reduced pool of filers under the proposed rule.

Criminal activity/illegal entry bar

DHS is unable to estimate the number of aliens impacted. Impacts could involve forgone earnings and lost taxes.

Adjudication of pending (c)(8) I-765 applications under the criminal and one-year-filing provisions

DHS cannot determine how many of the 14,451 pending EAD filings would be impacted by the criminal and one-year-filing provisions. Impacts could involve forgone earning and tax transfers.

One-year filing deadline

Some portion of the 8,472 annual filing bar referrals could be impacted, which could comprise deferred/delayed or forgone earning and tax transfers. DHS does not have data on filing bar cases referred to DOJ-EOIR.

Terminate EADs if asylum application denied/dismissed (DOJ-EOIR)

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

For those provisions that affect the time an asylum applicant is employed, the impacts of this rule would include both distributional effects (which are transfers) and costs.

The transfers would fall on the asylum applicants who would be delayed in entering the U.S. labor force or who would leave the labor force earlier than under current regulations. The transfers would be in the form of lost compensation (wages and benefits). A portion of this lost compensation might be transferred from asylum applicants to others that are currently in the U.S. labor force, or, eligible to work lawfully, possibly in the form of additional work hours or the direct and indirect added costs associated with overtime pay. A portion of the impacts of this rule would also be borne by companies that would have hired the asylum applicants had they been in the labor market earlier or who would have continued to employ asylum applicants had they been in the labor market longer, but were unable to find available replacement labor. These companies would incur a cost, as they would be losing the productivity and potential profits the asylum applicant would have provided. Companies may also incur opportunity costs by having to choose the next best alternative to the immediate labor the asylum applicant would have provided and by having to pay workers to work overtime hours. 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, but estimated the maximum monetized impact of this rule in terms of delayed/lost labor compensation. If all companies are able to easily find reasonable labor substitutes for the positions the asylum applicant would have filled, they will bear little or no costs, so $4,461.9 million (annualized at 7%) will be transferred from asylum applicants to workers currently in the labor force or induced back into the labor force (we assume no tax losses as a labor substitute was found). Conversely, if companies are unable to find reasonable labor substitutes for the position the asylum applicant would have filled then $4,461.9 million is the estimated monetized cost of the rule, and $0 is the estimated monetized transfers from asylum applicants to other workers. In addition, under this scenario, because the jobs would go unfilled there would be a loss of employment taxes to the Federal Government. USCIS estimates $682.9 million as the maximum decrease in employment tax transfers from companies and employees to the Federal Government.

Transfer payments are monetary payments from one group to another that do not affect total resources available to society.

See

OMB Circular A-4 pages 14 and 38 for further discussion of transfer payments and distributional effects. Circular A-4 is available at:

https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf.

The two scenarios described above represent the estimated endpoints for the range of monetized impacts resulting from the provisions that affect the amount of time an asylum applicant is employed. USCIS notes that given that the U.S. unemployment rate is hovering around a 50-year low—at 3.7% as of August 2019—it could be possible that employers may face difficulties finding reasonable labor substitutes. DHS does note that an alternative measure of the unemployment rate from the Bureau of Labor Statistics (the U-6) provides additional information on the labor market not found in the official unemployment rate (the U-3). The U-6 rate is a broader measure of labor underutilization and takes into account workers not included in the official U-3 rate that could potentially benefit from this rule. For example, the U-6 rate considers persons who are neither working nor looking for work but indicate they want and are available for a job and have looked for work sometime in the past twelve months and also considers part-time workers who otherwise want and are available for full time employment. The U-6 rate shows unemployment at 7.2 percent, which is much higher than the official U-3 rate of 3.7 percent.

The full definition of the U-3 and U-6 unemployment rates can be found on the Bureau of Labor Statistics (BLS) website under the “Local Area Unemployment Statistics (LAUS),” at:

https://www.bls.gov/lau/stalt.htm.

The actual figures for the U-3 and U-6 unemployment rates are found in table A-15, “Alternative Measures of Labor Underutilization,” in the Economic News Release Archives at:

https://www.bls.gov/news.release/archives/empsit_09062019.htm.

Included in the broader U-6 unemployment rate is the number of persons employed part time for economic reasons (sometimes referred to as involuntary part-time workers), which BLS estimates is 4.4 million in August 2019. These individuals, who would have preferred full-time

employment, were working part time because their hours had been reduced or they were unable to find full-time jobs.

In addition, BLS reports for August 2019 that 1.6 million persons were marginally attached to the labor force. These individuals were not in the labor force, wanted and were available for work, and had looked for a job sometime in the prior 12 months. They were not counted as unemployed in the official U-3 unemployment rate because they had not searched for work in the 4 weeks preceding the BLS survey, but are counted in the U-6 rate.

The U-6 rate provides additional evidence that U.S. workers might be available to substitute into the jobs that asylum applicants currently hold.

See

Table A-8, “Employed Persons by Class of Worker and Part-Time Status”, Persons at work part time for economic reasons:

https://www.bls.gov/news.release/archives/empsit_09062019.htm.

See

Table A-16, “Persons not in the labor force and multiple jobholders by sex, not seasonally adjusted”, Persons marginally attached to the labor force:

https://www.bls.gov/news.release/archives/empsit_09062019.htm.

Because the biometrics requirement proposed in this rule is a cost to applicants and not a transfer, its minimum value of $27.17 million is the minimum cost of the rule. The range of impacts described by these two scenarios, plus the consideration of the biometrics costs, are summarized in Table 2 below (Table 2A and 2B capture the impacts a 3 and 7 percent rates of discount, in order).

Table 2A—Summary of Range of Monetized Annualized Impacts at 3%

Category

Description

Scenario: No replacement labor found for asylum applicants

Low wage

High wage

Scenario: All asylum applicants

replaced with other workers

Low wage

High wage

Primary

(average of the highest high and the lowest low, for each row)

Transfers:

Transfers—Compensation

Compensation transferred from asylum applicants to other workers (provisions: 365-day wait + end EADs early + end recommended approvals)

$0.00

$1,473,953,451

$4,461,386,308

$2,230,693,154

Transfers—Taxes

Lost employment taxes paid to the Federal Government (provisions: 365-day wait + end EADs early + end recommended approvals)

225,587,337

682,771,643

0.00

341,385,822

Costs:

Cost Subtotal—Biometrics

Biometrics Requirements

27,154,124

45,726,847

27,154,124

45,726,847

36,440,486

Cost Subtotal—Lost Productivity

Lost compensation used as proxy for lost productivity to companies (provisions: 365-day wait + end EADs early + end recommended approvals)

1,473,953,451

4,461,386,308

0.00

2,230,693,154

Total Costs

1,501,107,576

4,507,113,155

27,154,124

45,726,847

2,267,133,639

Table 2B—Summary of Range of Monetized Annualized Impacts at 7%

Category

Description

Scenario: No replacement labor found for asylum applicants

Low wage

High wage

Scenario: All asylum applicants

replaced with other workers

Low wage

High wage

Primary

(average of the highest high and the lowest low, for each row)

Transfers:

Transfers—Compensation

Compensation transferred from asylum applicants to other workers (provisions: 365-day wait + end EADs early + end recommended approvals)

0.00

1,474,123,234

4,461,900,172

2,230,950,086

Transfers—Taxes

Lost employment taxes paid to the Federal Government (provisions: 365-day wait + end EADs early + end recommended approvals)

225,613,314

682,850,264

341,425,132

Costs:

Cost Subtotal—Biometrics

Biometrics Requirements

27,171,858

45,766,847

27,171,858

45,766,847

36,469,352

Cost Subtotal—Lost Productivity

Lost compensation used as proxy for lost productivity to companies (provisions: 365-day wait + end EADs early + end recommended approvals)

1,474,123,234

4,461,900,172

0.00

2,230,950,086

Total Costs

1,501,295,093

4,507,667,018

27,171,858

45,766,847

2,267,419,438

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

Table 3—OMB A-4 Accounting Statement

[$ millions, 2019]

[Period of analysis: 2019-2028]

Category

Primary estimate

Minimum

estimate

Maximum

estimate

Source citation

(RIA, preamble, etc.)

Benefits:

Monetized Benefits

(7%)

N/A

RIA.

(3%)

N/A

Annualized quantified, but un-monetized, benefits

N/A

RIA.

Unquantified Benefits

The benefits potentially realized by the proposed rule are qualitative and accrue to a streamlined system for employment authorizations for asylum seekers that would reduce fraud, improve overall integrity and operational efficiency, and prioritize aliens with bona fide asylum claims. These impacts stand to provide qualitative benefits to asylum seekers, the communities in which they reside and work, the U.S. Government, and society at large. The proposed rule aligns with the Administration's goals of strengthening protections for U.S. workers in the labor market. The proposed biometrics requirement would enhance identity verification and management.

RIA.

Costs:

Annualized monetized costs (discount rate in parenthesis)

(7%)

$2,267.4

$27.17

$4,507.7

RIA.

(3%)

2,267.1

27.17

4,507.1

RIA.

Annualized quantified, but un-monetized, costs

N/A

RIA.

Qualitative (unquantified) costs

In cases where companies cannot find reasonable substitutes for the labor the asylum applicants would have provided, affected companies would also lose profits from the lost productivity. In all cases, companies would incur opportunity costs by having to choose the next best alternative to immediately filling the job the pending asylum applicant would have filled. There may be additional opportunity costs to employers such as search costs. There could also be a loss of Federal, state, and local income tax revenue.

RIA.

Estimates of costs to proposals that would involve DOJ-EOIR defensively-filed asylum applications and DHS-referrals could not be made due to lack of data. Potential costs would involve delayed/deferred or forgone earnings, and possible lost tax revenue.

There would also be delayed or forgone labor income and tax transfers for pending EAD applicants impacted by the criminal and one-year filing provisions, renewal applicants, transfers from the (c)(11) group, and filing bar cases, all of whom would be subject to some of the criteria being proposed; in addition, such impacts could also affect those who would be eligible currently for an EAD, or have such eligibility terminated earlier, but would be ineligible for an EAD under the proposed rule.

Transfers:

Annualized monetized transfers: “on budget”

(7%)

RIA.

(3%)

From whom to whom?

N/A

N/A.

Annualized monetized transfers: Compensation

(7%)

$2,231.0

$4,461.9

RIA.

(3%)

2,230.7

4,461.4

From whom to whom?

Compensation transferred from asylum applicants to other workers (provisions: 365-day wait + end EADs early + end recommended approvals). Some of the deferred or forgone earnings could be transferred from asylum applicants to workers in the U.S. labor force or induced into the U.S. labor force. Additional distributional impacts from asylum applicant to the asylum applicant's support network that provides for the asylum applicant while awaiting an EAD; these could involve burdens to asylum applicants' personal private or familial support system, but could also involve public, private, or charitable benefits-granting agencies and non-governmental organizations (NGOs).

RIA.0.0.

Annualized monetized transfers: Taxes

(7%)

$341.4

$682.9

RIA.

(3%)

341.4

682.8

From whom to whom?

A reduction in employment taxes from companies and employees to the Federal Government. There could also be a transfer of Federal, state, and local income tax revenue (provisions: 365-day wait + end EADs early + end recommended approvals).

Category

Effects

Source citation (RIA, preamble, etc.)

Effects on state, local, and/or tribal governments

DHS does not know how many low-wage workers could be removed from the labor force due to the proposed rule. There may also be a reduction in state and local tax revenue. Budgets and assistance networks that provide benefits to asylum seekers could be impacted negatively if asylum applicants request additional support.

RIA.

Effects on small businesses

This proposed rule does not directly regulate small entities, but has indirect costs on small entities. DHS acknowledges that ending EADs linked to denied DHS-affirmative asylum claims and EADs linked to asylum cases under DOJ-EOIR purview would result in businesses that have hired such workers incurring labor turnover costs earlier than without this rule. Such small businesses may also incur costs related to a difficulty in finding workers that may not have occurred without this rule.

RFA.

Effects on wages

None.

RIA.

Effects on growth

None.

RIA.

As will be explained in greater detail later, the benefits potentially realized by the proposed rule are qualitative. This rule would reduce the incentives for aliens to file frivolous, fraudulent, or otherwise non-meritorious asylum applications intended primarily to obtain employment authorization or other forms of non-asylum-based relief from removal, thereby allowing aliens with bona fide asylum claims to be prioritized. A streamlined system for employment authorizations for asylum seekers would reduce fraud and improve overall integrity and operational efficiency. DHS also believes these administrative reforms will encourage aliens to follow the lawful process to immigrate to the United States.

These effects stand to provide qualitative benefits to asylum seekers, communities where they live and work, the U.S. government, and society at large.

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

The proposed rule also aligns with the Administration's goals of strengthening protections for U.S. workers in the labor market. Several employment-based visa programs require U.S. employers to test the labor market, comply with recruiting standards, agree to pay a certain wage level, and agree to comply with standards for working conditions before they can hire an alien to fill the position. These protections do not exist in the (c)(8) EAD program. While this rule would not implement labor market tests for the (c)(8) program, it would put in place mechanisms to reduce fraud and deter those without bona fide claims for asylum from filing applications for asylum primarily to obtain employment authorization or other, non-asylum-based forms of relief from removal. DHS believes these mechanisms will protect U.S. workers.

The proposed biometrics requirement would provide a benefit to the U.S. government by enabling DHS to know with greater certainty the identity of aliens requesting EADs in connection with an asylum application. The biometrics will allow DHS to conduct criminal history background checks to confirm the absence of a disqualifying criminal offense, to vet the applicant's biometrics against government databases (

e.g.,

FBI databases) to determine if he or she matched any criminal activity on file, to verify the applicant's identity, and to facilitate card production. Along with the proposals summarized above and discussed in detail in the preamble and regulatory impact sections of this proposed rule, DHS proposes to modify and clarify existing regulations dealing with technical and procedural aspects of the asylum interview process, USCIS authority regarding asylum, applicant-caused delays in the process, and the validity period for EADs. These provisions are not expected to generate costs. If adopted in a final rule, the rules and criteria proposed herein relating to certain criminal offenses and the one-year-filing bar would apply to pending EAD applications. In order to implement the criminal ineligibility provision, DHS will require applicants with a pending initial or renewal (c)(8) EAD on the effective date of this rule to appear at an ASC for biometrics collection but DHS will not collect the biometrics services fee from these aliens. DHS will contact applicants with pending EAD applications and provide notice of the place, date and time of the biometrics appointment. Some aliens could be impacted and some may not be granted an EAD as they would otherwise under current practice, but DHS does not know how many could be impacted and does not estimate costs for this provision.

III. Purpose of the Proposed Rule

On April 29, 2019, the White House issued a Presidential Memorandum (PM) entitled, “Presidential Memorandum on Additional Measures to Enhance Border Security and Restore Integrity to Our Immigration System.”

The White House, referencing the President's earlier Proclamations noted that “our immigration and asylum system is in crisis as a consequence of the mass migration of aliens across our southern border” and that the “emergency continues to grow increasingly severe. In March, more than 100,000 inadmissible aliens were encountered seeking entry into the United States. Many aliens travel in large caravans or other large organized groups, and many travel with children. The extensive resources required to process and care for these individuals pulls U.S. Customs and Border Protection personnel away from securing our Nation's borders. Additionally, illicit organizations benefit financially by smuggling illegal aliens into the United States and encouraging abuse of our asylum procedures. This strategic exploitation of our Nation's humanitarian programs undermines our Nation's security and sovereignty. The purpose of this memorandum is to strengthen asylum procedures to safeguard our system against rampant abuse of our asylum process.”

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

Id.

The PM directs the Secretary of Homeland Security to propose regulations to bar aliens who have entered or attempted to enter the United States unlawfully from receiving employment authorization prior to being approved for relief and to immediately revoke the employment authorization of aliens who are denied asylum or become subject to a final order of removal.

Through this proposed rule, DHS seeks to address the national emergency and humanitarian crisis at the border

by (1) reducing incentives for aliens to file frivolous, fraudulent, or otherwise non-meritorious asylum applications intended primarily to obtain employment authorization, or other forms of non-asylum based relief, and remain for years in the United States due to the backlog of asylum cases, and (2) disincentivizing illegal entry into the United States by proposing that 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 be ineligible to receive a (c)(8) EAD, with limited exceptions. DHS is also proposing administrative reforms that will ease some of the administrative burdens USCIS faces in accepting and adjudicating applications for asylum and related employment authorization.

Proclamation No. 9844, 84 FR 4949 (Feb. 15, 2019).

As explained more fully below, USCIS believes 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 our southern border,

as well as improve the current asylum backlog, helping to clear the way for meritorious asylum applications to be received, processed, and adjudicated more quickly, and allowing USCIS to issue employment authorizations more efficiently. The extensive resources required to process and care for these individuals pulls personnel away from securing our Nation's borders. Additionally, illicit organizations benefit financially by smuggling illegal aliens into the United States and encouraging abuse of our asylum procedures. This strategic exploitation of our Nation's humanitarian programs undermines our Nation's security and

sovereignty.

These interests, when weighed against any reliance interest on behalf of impacted aliens, are greater, particularly because of the large increase in number of those seeking asylum at the border, which is operationally unsustainable for DHS long-term.

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

Id.

It is the policy of the Executive Branch to manage humanitarian immigration programs in a safe, orderly manner that provides access to relief or protection from removal from the United States for aliens who qualify, and that promptly denies benefits to and facilitates the removal of those who do not.

This rulemaking is part of a series of reforms DHS is undertaking, in coordination with DOJ-EOIR, to improve and streamline the asylum system, so that those with bona fide asylum claims can be prioritized and extended the protections that the United States has offered for over a century, including employment authorization, to aliens legitimately seeking refuge from persecution

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

A. Efforts To Reform the Asylum System

The Refugee Act of 1980, Public Law 96-212, 94 Stat. 102, was the first comprehensive legislation to establish the modern refugee and asylum system.

Congress passed the Refugee Act mainly to replace the ad hoc process that existed at the time for admitting refugees and to provide a more uniform refugee and asylum process.

The focus of the Refugee Act was reforming the overseas refugee program. The Refugee Act did not explicitly address how the United States should reform the asylum process or handle the then-sudden influx of asylum seekers, such as occurred with the Mariel boatlift—a mass influx of Cuban citizens and nationals, many of whom with criminal histories, to the United States in 1980.

Congress also provided that any alien who had applied for asylum before November 1, 1979, had not been granted asylum, and did not have a final order of deportation or exclusion, could obtain employment authorization.

Congress added the definition of refugee under section 101(a)(42) of the Act, 8 U.S.C. 1101(a)(42), based on the 1967 United Nations (U.N.) Protocol relating to the Status of Refugees, 19 U.S.T. 6223, TIAS No. 6577, 606 U.N.T.S. 267 (1967), which the United States ratified in November of 1968. The Refugee Act also made withholding of removal mandatory, authorized adjustment of status for asylees and refugees, expanded the funding available for domestic refugee assistance services, and barred eligibility for asylum for aliens who were convicted of a serious crime, firmly resettled, persecutors, or a danger to the security of the United States.

See

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

See, e.g., Immigration Reform and Control Act of 1982: Joint Hearing on H.R. 5872 and S. 2222 Before the Subcommittee on Immigration, Refugees, and International Law, Committee on the Judiciary, House of Representatives, and Subcommittee on Immigration and Refugee Policy, Committee on the Judiciary,

97th Cong. 2nd Sess, 326-328 (Apr. 1 and 20, 1982) (statement of Attorney General William French).

94 Stat. 102 at sec. 401(b) and (c).

In 1980, the then-INS issued an interim regulation implementing the asylum provisions of the Refugee Act.

This regulation provided that an INS district director could authorize an applicant for asylum to work, in six-month increments, if the alien had filed a non-frivolous application for asylum.

The regulation did not define what constituted a “frivolous” filing. The regulation also excluded, without explanation, the limitation on the size of the class of aliens who could qualify for employment authorization (

i.e.,

only aliens who had applied for asylum before November 1, 1979, but had not been granted asylum, and did not have a final order of deportation or exclusion). As a result of the regulation, the class of aliens who could seek employment authorization based on an asylum application was interpreted to include past and future asylum seekers.

See Aliens and Nationality; Refugee and Asylum Procedures,

45 FR 37392 (June 2, 1980). This interim rule was not finalized until 1983.

See also Aliens and Nationality; Asylum Procedures,

48 FR 5885-01 (Feb. 9, 1983).

45 FR at 37394, section 208.4.4.

Congress, however, did not provide adequate resources or enact legislation that would address the “pull” factors that led to significant increases in illegal immigration and in asylum filings following enactment of the Refugee Act.

In addition, the publication of two INS regulations—the 1986 implementing regulations for the Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603 (Nov. 6, 1986)

and the 1990 asylum regulations—further incentivized illegal immigration and the filing of non-meritorious asylum claims or other forms of relief because of the ease with which aliens could obtain employment authorization, regardless of the basis for the application for employment authorization.

In the implementing regulations for IRCA, INS provided that aliens could receive an interim EAD if INS did not adjudicate the application for employment authorization within 60 days (former 8 CFR 274a.12(c) and (d)).

The IRCA regulations also required asylum officers to give employment authorization, in one-year increments, to any alien who had filed a non-frivolous

asylum application. In the 1990 asylum regulation, INS also mandated that asylum officers give interim EADs to any alien who had filed a non-frivolous asylum application, and that asylum officers continue to renew employment authorization for the time needed to adjudicate the asylum application (former 8 CFR 208.7(a)).

See, e.g.,

David A. Martin,

Making Asylum Policy: The 1994 Reforms,

70 Wash. L. Rev. 725 (July 1995) and David A. Martin,

The 1995 Asylum Reforms,

Ctr. for Immigration Studies (May 1, 2000) for a discussion of the history and consequences of the asylum reforms in 1990s.

IRCA legalized many illegal aliens present in the United States prior to 1986, created new temporary agricultural worker programs, and mandated employment verification and employer sanctions to address the problem of U.S. employers hiring illegal immigrants. One of the main reasons Congress passed IRCA was its growing concern over the large influx of aliens crossing our borders illegally, particularly on the Southwest border, to find jobs. The employer verification system and employer sanctions were designed to address this concern by reducing the “pull” factor created by the availability of higher paying jobs in the United States.

See, e.g.,

H.R. Rep. No. 99-682(I) at pp. 5649-5654 (July 16, 1986) (Committee explanation for the need for IRCA to control illegal immigration).

See Martin, supra

note 2121, at p. 734;

see also David A. Martin, Reforming Asylum Adjudication: On Navigating the Coast of Bohemia,

138 U. Pa. L. Rev. 1247 (May 1990) at pp. 1267-69, 1288-89, and 1373.

DOJ final rule,

Control of Employment of Aliens,

52 FR 16216-01 (May 1, 1987). The 60-day period was subsequently extended to 90-days with the publication of the final rule,

Powers and Duties of Service Officers; Availability of Service Records, Control of Employment of Aliens,

56 FR 41767-01 (Aug. 23, 1991).

DOJ INS also for the first time defined “frivolous” to mean “manifestly unfounded or abusive.”

See

former 8 CFR 208.7(a) (1991).

DOJ INS final rule,

Aliens and Nationality; Asylum and Withholding of Deportation Procedures,

55 FR 30674-01 (July 27, 1990).

While IRCA's creation of the employer verification system and employer sanctions was designed to reduce the “pull” factor created by the availability of higher paying jobs in the United States, the ability to get interim employment authorization within 90 days, regardless of the basis for requesting employment authorization in the first instance, had the exact opposite effect.

In addition, because the agency already had a backlog for adjudicating asylum applications, it was unlikely any asylum application would be adjudicated within a 90-day timeframe, which virtually guaranteed that most asylum applicants would be eligible for interim employment authorization.

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

See Martin, supra

note 21, at p. 733-36.

In 1994, Congress passed the Violent Crime Control and Law Enforcement Act of 1994

(VCCLEA), Public Law 103-322, 108 Stat. 1796 (Sept. 13, 1994). As part of its findings, Congress stated “. . . in the last decade applications for asylum have greatly exceeded the original 5,000 annual limit provided in the Refugee Act of 1980, with more than 150,000 asylum applications filed in fiscal year 1993, and the backlog of cases growing to 340,000.” VCCLEA, at sec. 130010(1).

See Martin, supra

note 21, at p. 733-37

In 1994, Congress passed the Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA), Public Law 103-322, 108 Stat. 1796 (Sept. 13, 1994), which provided for expedited exclusion proceedings and summary deportation of aliens with failed asylum claims and provided that no applicant for asylum would be entitled to employment authorization unless the Attorney General (now Secretary of Homeland Security) determined, as a matter of discretion, that employment authorization was appropriate.

Congress passed these amendments mainly because the asylum system was being overwhelmed with asylum claims, including frivolous and fraudulent claims filed merely to obtain employment authorization.

The hope was that the expedited exclusion proceedings would reduce such claims. During consideration of the VCCLEA, DOJ also conducted a review of the asylum process and published regulations designed to reduce the asylum backlogs, eliminate procedural hurdles that lengthened the process, and deter abuses in the system.

For the first time, DOJ implemented a waiting period for asylum seekers—150 days—before they could apply for employment authorization. DOJ based the timeframe on the 150-day processing goals it had set for asylum officers and IJs to complete asylum cases.

See

Public Law 103-322, 108 Stat. 1796, at sec. 130005.

See id.

at sec. 130010(1) (findings of the Senate on the need for reforms to the asylum process, including finding of a backlog of cases up to 340,000);