Asylum Application, Interview, and Employment Authorization for Applicants

Federal RegisterJun 26, 2020

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 208 and 274a

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

RIN 1615-AC27

Asylum Application, Interview, and Employment Authorization for Applicants

AGENCY:

Department of Homeland Security.

ACTION:

Final rule.

SUMMARY:

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

DATES:

This final rule is effective August 25, 2020.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

A. Proposed Rule

B. Major Provisions of the Proposed Rule

C. Summary of Changes in the Final Rule

1. Effective Date

2. Illegal Entry

3. One-Year Filing Deadline

4. Criminal Bars to Eligibility

5. Applicant-Caused Delays

D. Summary of Costs, Benefits, and Transfer of Payments

II. Purpose of The Regulatory Action

A. Efforts To Reform the Asylum System

B. Need for Reform

III. Background

A. Legal Authority

B. Eligibility for Asylum

C. Affirmative vs. Defensive Asylum Filings

D. Employment Authorization for Asylees and Asylum Applicants

E. Asylum and EAD Adjudications

IV. Discussion of the Final Rule

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

B. One-Year Filing Deadline

C. Criminal Bars to Eligibility

D. Procedural Reforms

E. Termination of Employment Authorization

1. Denial of Asylum Application by USCIS Asylum Officer

2. Termination After Denial by IJ

3. Automatic Extensions of Employment Authorizations and Terminations

4. Adjudication and Termination of EADs Filed by UACs

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

G. Illegal Entry

H. Effective Date of the Final Rule

V. Public Comments on the Proposed Rule

A. Summary of Public Comments

B. Requests To Extend Comment Period

C. Severability Clause

D. Comments Expressing General Support for the NPRM

E. Comments Expressing General Opposition to the NPRM

F. Comments Regarding Legal Authority and Statutory Provisions

1. Acting Secretary of Homeland Security's Legal Authority

2. Relevant Statutes

3. Litigation

4. International Law and Conventions

5. Administrative Procedure Act

6. Constitutional Concerns

G. Comments on Specific Rule Provisions

1. 365-Day Waiting Period

2. One-Year Filing Deadline

3. Criminal Bars

4. Illegal Entry and Good Cause Exception

5. Procedural Reforms

6. Miscellaneous Comments

7. Effective Date and Retroactive Application

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

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

B. Other Comments on Statutory and Regulatory Requirements

VII. Statutory and Regulatory Requirements

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

1. Summary

2. Background and Purpose of Rule

3. Population

4. Transfers, Costs, and Benefits of This Rule

B. Regulatory Flexibility Act (RFA)

C. Congressional Review Act

D. Unfunded Mandates Reform Act of 1995 (UMRA)

E. Executive Order 13132 (Federalism)

F. Executive Order 12988 (Civil Justice Reform)

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

H. Family Assessment

I. National Environmental Policy Act (NEPA)

J. National Technology Transfer and Advancement Act

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

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

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

N. Paperwork Reduction Act (PRA)

O. Signature

Table of Abbreviations

APA—Administrative Procedure Act

ASC—Application Support Center

BCR—Biometrics Collection Rate

BFR—Biometrics Fee Ratio

BIA—Board of Immigration Appeals

BLS—Bureau of Labor Statistics

CAM—Central American Minors Program

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

CBP—U.S. Customs and Border Protection

CFR—Code of Federal Regulations

CPMS—Customer Profile Management System

DHS—U.S. Department of Homeland Security

DOJ—Department of Justice

DOS—Department of State

E.O.—Executive Order

EAD—Employment Authorization Document

EOIR—Executive Office for Immigration Review

FBI—Federal Bureau of Investigation

FDNS—Fraud Detection and National Security Directorate

FIFO—First in/First Out

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

Form I-765—Application for Employment Authorization

Form I-863—Notice of Referral to Immigration Judge

FY—Fiscal Year

GSA—General Services Administration

HSA—Homeland Security Act of 2002

ICE—U.S. Immigration and Customs Enforcement

IIRIRA—Illegal Immigration Reform and Immigrant Responsibility Act of 1996

IJ—Immigration Judge

INA—Immigration and Nationality Act

INS—Immigration and Naturalization Services

IRCA—Immigration Reform and Control Act of 1986

ISO—Immigration Services Officer

LCA—Labor Condition Application

LIFO—Last In, First Out

NEPA—National Environmental Policy Act

NOID—Notice of Intent to Deny

NPRM—Notice of Proposed Rulemaking

NTA—Notice to Appear

OMB—Office of Management and Budget

PM—Presidential Memorandum

PRA—Paperwork Reduction Act

RFA—Regulatory Flexibility Act

Secretary—Secretary of Homeland Security

TPS—Temporary Protected Status

TVPRA—The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008

UAC—Unaccompanied Alien Children

UMRA—Unfunded Mandates Act of 1995

UNHCR—United Nations High Commissioner for Refugees

U.S.C.—United States Code

USCIS—U.S. Citizenship and Immigration Services

VAWA— Violence Against Women Act

I. Executive Summary

A. Proposed Rule

On November 14, 2019, DHS published a notice of proposed rulemaking (“NPRM”) entitled Asylum Application, Interview, and Employment Authorization for Applicants.

In the NPRM, DHS proposed amendments in order to (1) reduce incentives for aliens to file frivolous, fraudulent, or otherwise non-meritorious asylum applications to obtain employment authorization pursuant to 8 CFR 274a.12(c)(8) (hereinafter “(c)(8) EAD” or “EAD”) or other non-asylum-based forms of relief such as cancellation of removal, and (2) discourage illegal entry into the United States. DHS also proposed changes to reduce incentives for aliens to intentionally delay asylum proceedings in order to extend the period of employment authorization based on the pending asylum application, and to simplify the adjudication process. DHS proposed further changes to prevent asylum applicants who have committed certain crimes from obtaining a (c)(8) EAD, and to make the decision to grant (c)(8) employment authorization to asylum applicants discretionary, in line with DHS' statutory authority. DHS proposed to modify its regulations in the following areas:

Asylum Application, Interview, and Employment Authorization for Applicants,

84 FR 62374 (proposed Nov. 14, 2019). DHS incorporates by reference the NPRM in its entirety here.

Extend the waiting period to apply for employment authorization:

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

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

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

Revise eligibility for employment authorization:

DHS proposed to exclude aliens who, absent good cause, entered or attempted to enter the United States at a place and time other than lawfully through a U.S. port of entry from eligibility for (c)(8) employment authorization. DHS also proposed to exclude from eligibility for employment authorization aliens who have failed to file for asylum within one year of their last entry, unless and until an asylum officer or immigration judge (IJ) determines that an exception to the statutory requirement to file for asylum within one year applies. DHS proposed to exclude from eligibility aliens whose asylum applications have been denied by an asylum officer or an IJ during the 365-day waiting period or before the request for initial employment authorization has been adjudicated. DHS further proposed to exclude from eligibility for employment authorization aliens who have: (1) Been convicted of any aggravated felony as defined under section 101(a)(43) of the INA, 8 U.S.C. 1101(a)(43); (2) been convicted of any felony in the United States or serious non-political crime outside the United States; or (3) been convicted in the United States of certain public safety offenses involving domestic violence or assault; child abuse or neglect; possession or distribution of controlled substances;

or driving or operating a motor vehicle under the influence of alcohol or drugs, regardless of how the offense is classified by the state or local jurisdiction. DHS proposed that it would consider, on a case-by-case basis, whether aliens who have been convicted of any non-political foreign criminal offense, or have unresolved arrests or pending charges for any non-political foreign criminal offenses, warrant a favorable exercise of discretion.

DHS requested public comment on whether these and additional crimes should be included as bars to employment authorization. Because the one-year filing deadline does not apply to unaccompanied alien children (UACs), DHS proposed that the bar to eligibility for failing to meet the one-year filing deadline would not bar UACs who apply for asylum from eligibility for an EAD after the 365-day waiting period has expired. DHS also proposed to clarify that only applicants for asylum who are in the United States may apply for employment authorization. Finally, DHS proposed a severability clause to ensure that in the event any of provision of the final rule is found by a court to be invalid, DHS could still implement the remaining provisions of the rule.

See

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

See, e.g.,

INA sec. 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F); INA sec. 212(a)(2)(A)(i)(I), 8 U.S.C. 1182(a)(2)(A)(i)(I); INA sec. 212(a)(2)(B), 8 U.S.C. 1182(a)(2)(B).

Revise the provisions for EAD termination:

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

Change provisions for filing an asylum application:

DHS proposed to remove the requirement that USCIS return an incomplete application within 30 days or have it deemed complete for adjudication purposes. DHS also proposed that amending an asylum application, requesting an extension to submit additional evidence beyond a time that allows for its meaningful consideration prior to the interview, or failing to appear at a USCIS Asylum office to receive a decision as designated, would constitute an applicant-caused delay, which, if not resolved by the date the application for employment authorization is adjudicated, would result in the denial of that employment authorization application. DHS also proposed to clarify the effect of an applicant's failure to appear for either an asylum interview or a scheduled biometric services appointment on a pending asylum application.

Limit EAD validity periods:

DHS proposed to clarify that the validity period of (c)(8) employment

authorization is discretionary and further proposed that any (c)(8) EAD validity period, whether initial or renewal, would not exceed increments of 2 years. DHS proposed to allow USCIS to set shorter validity periods for initial and renewal (c)(8) EADs.

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

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

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

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 proposed to clarify that aliens who have been paroled into the United States pursuant to section 212(d)(5) of the INA, 8 U.S.C. 1182(d)(5), after establishing a credible fear or reasonable fear of persecution or torture under 8 CFR 208.30, may not request a discretionary grant of employment authorization under 8 CFR 274a.12(c)(11), but may still apply for a (c)(8) EAD, if otherwise eligible. DHS sought public comment on this proposal and whether the (c)(11) category (parole-based EADs) should be further limited, such as to provide employment authorization only to those aliens DHS determines are needed for foreign policy, law enforcement, or national security reasons, especially since parole is meant only as a temporary measure to allow an alien's physical presence in the United States until the need for parole is accomplished or the alien can be removed.

Specify the effective date:

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

Rosario

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

DHS also sought 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 will not apply this rule to any initial EAD application filed by a

Rosario

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

Rosario

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

Rosario

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

DHS also proposed revisions to existing USCIS information collections (forms) to accompany the proposed regulatory changes.

B. Major Provisions of the Proposed Rule

DHS proposed the following regulatory changes:

Amending 8 CFR 208.3, Form of application.

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

Amending 8 CFR 208.4, Filing the application.

The proposed amendments to this section provided that a request to amend a pending application for asylum or to supplement such an application may be treated as an applicant-caused delay, and if unresolved on the date the employment authorization application is adjudicated, will result in the denial of the application for employment authorization.

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. Comments on the NPRM addressing removal of the 30-day processing provision are not addressed here.

Jurisdiction.

The proposed amendments to this section clarified 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 replaced the 150-day waiting period and the 180-day asylum EAD clock. The proposed amendments would make asylum applicants eligible to apply for employment authorization 365 calendar days from the date their asylum application is received. The 365-day period was based on an average of the current processing times for asylum applications which can range anywhere from 6 months to over 2 years, before there is an initial decision, especially in cases that are referred to DOJ-EOIR from an asylum office. DHS also proposed that if any unresolved applicant-caused delays in the asylum adjudication exist on the date the (c)(8) EAD application is adjudicated, the EAD application would be denied. Consistent with the prior regulation, DHS also proposed to exclude from eligibility aliens whose asylum applications have been denied by an asylum officer or an IJ during the 365-day waiting period or before the adjudication of the initial request for employment authorization.

One-Year Filing Deadline.

The proposed amendments to this section excluded from eligibility for employment authorization aliens who have failed to file for asylum within 1 year unless and until an asylum officer or IJ determines that an exception to the statutory requirement to file for asylum within 1 year applies.

Illegal Entry.

The proposed amendments to this section also made any alien who entered or attempted to enter the United States at a place and time other than lawfully through a U.S. port of entry ineligible to receive a (c)(8) EAD, with limited exceptions.

Criminal convictions.

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

in the United States; (3) been convicted of a serious non-political crime outside the United States; (4) been convicted in the United States of domestic violence or assault (except aliens who have been battered or subjected to extreme cruelty and who were not the primary perpetrators of violence in their relationships), child abuse or neglect; possession or distribution of controlled substances; or driving or operating a motor vehicle under the influence of alcohol or drugs, regardless of how the offense is classified by the state, local, or tribal jurisdiction. DHS proposed to consider, on a case-by-case basis, whether an alien who has unresolved domestic charges or arrests that involve domestic violence, child abuse, possession or distribution of controlled substances, or driving under the influence of drugs or alcohol, warrants a favorable exercise of discretion for a grant of employment authorization.

See

18 U.S.C. 3156(a)(3) (the term “felony” means an offense punishable by a maximum term of imprisonment of more than 1 year).

Recommended Approvals.

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

EAD Renewals.

The proposed amendments to this section permitted renewals during the pendency of the asylum application, including while the asylum application is still pending before the immigration court or at the BIA (if a timely appeal was filed), for such periods as determined by USCIS in its discretion, but not to exceed increments of 2 years.

Submission of biometrics.

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

Termination After Denial by USCIS Asylum Officer.

The proposed amendments to this section provided that when a USCIS asylum officer denies an alien's request for asylum, any employment authorization associated with a pending asylum application, including any automatic extension of employment authorization, would be automatically terminated effective on the date the asylum application is denied. As is current practice, if a USCIS asylum officer determines that the alien has no lawful immigration status and is not eligible for asylum, the asylum officer will refer the case to DOJ-EOIR and place the alien in removal proceedings. Employment authorization would be available to the alien while the alien is in removal proceedings and the alien's application for asylum is under review before an IJ.

Termination After Denial by an IJ or the BIA.

The proposed amendments to this section also provided that where USCIS refers a case to DOJ-EOIR, employment authorization would continue for 30 days following the date that the IJ denies the asylum application to account for a possible appeal of the denial to the BIA. If the alien filed a timely appeal, employment authorization would continue, and the alien would be able to file a renewal EAD application, if otherwise eligible and if the asylum application was still pending on review with the BIA prior to expiration of the alien's EAD. Employment authorization would be prohibited during the Federal court appeal process. However, if the Federal court remanded the case to the BIA for a new decision, the alien could request a (c)(8) EAD once the asylum application was again pending with the BIA.

Eligibility.

The proposed amendments to the section also clarified and codified that only an applicant who is in the United States may apply for employment authorization.

Severability.

The proposed amendments to this section included a severability clause. This section was drafted with provisions separated into distinct parts. In the event that any provision is found by a court to be invalid, DHS intended that the remaining provisions be implemented as an independent rule in accordance with the stated purposes of this rule.

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

The proposed amendments to this section clarified that an applicant's failure to appear at a USCIS Asylum Office to receive and acknowledge receipt of the asylum decision following an interview, and an applicant's request for an extension to submit additional evidence would be considered applicant-caused delays for purposes of eligibility for employment authorization. The proposed amendments also removed references to the “Asylum EAD clock” and required that documentary evidence to support a pending asylum application be submitted no later than 14 calendar days before the asylum interview. DHS proposed this change to allow USCIS asylum officers time to conduct a meaningful examination of the evidence prior to, and in preparation for, the asylum applicant's interview. As a matter of discretion, the asylum officer can consider evidence submitted within the 14 calendar days in advance of the interview date, or may grant the

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 proposed amendments to this section clarified that an asylum applicant's failure to appear for an asylum interview or biometric services appointment may lead to referral or dismissal of the asylum application, and may be treated as an applicant-caused delay affecting eligibility for employment authorization. In addition, DHS proposed to clarify that USCIS is not obligated to send any notice to the applicant about his or her failure to appear at a scheduled biometrics appointment or an asylum interview as a prerequisite to making a decision on the asylum application, which may include dismissing the asylum application or referring it to an IJ. DHS proposed these amendments to facilitate more timely and efficient case processing when applicants fail to appear for essential appointments. Finally, the amendments replaced references to fingerprint processing and fingerprint appointments with the term presently used by USCIS—“biometric services appointment.”

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

The proposed amendments to this section removed the language in 8 CFR 274a.12(c)(8) referring to “recommended approvals.” The amendments also deleted an obsolete reference to the Commissioner of the former Immigration and Naturalization Service (INS) and replaced it with a reference to USCIS. DHS further proposed to clarify that aliens who have been paroled into the United States after being found to have a credible fear or reasonable fear of persecution or torture may not apply under 8 CFR 274a.12(c)(11) (parole-related EADs), but may apply for employment authorization under 8 CFR 274a.12(c)(8) if they apply for asylum in accordance with the rules for (c)(8) EADs and if they are otherwise eligible. The proposed amendments also provided that employment authorization would not be granted if a denial of an asylum application is under judicial review, in conformity with amendments proposed at 8 CFR 208.7. DHS requested public comment on these proposals and whether the (c)(11) category (parole-based EADs) should be further limited, such as to provide employment authorization only to those DHS determines are needed for foreign policy, law enforcement, or national security reasons, especially since parole is meant only as a temporary measure to allow an alien's physical presence in the United States until the need for parole is accomplished or the alien can be removed.

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

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

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

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

Effective date:

DHS proposed that, with limited exceptions, the rules in effect on the date of filing Form I-765, Application for Employment Authorization, would govern all initial and renewal applications for a (c)(8) EAD based on a pending asylum application and a (c)(11) EAD based on a grant of parole after establishing a credible fear or reasonable fear of persecution or torture. DHS proposed that the criminal provisions and the failure to file the asylum application within 1 year of last entry would apply to initial and renewal EAD applications pending on the date the final rule is published. In order to implement the criminal ineligibility provision, DHS proposed to require applicants with a pending initial or renewal (c)(8) EAD on the effective date of this rule to appear at an ASC for biometrics collection but DHS would not collect the biometrics services fee from these aliens. DHS indicated it would provide notice of the place, date and time of the biometrics appointment to applicants with pending (c)(8) EAD application. DHS also proposed that, if applicable, initial (c)(8) EAD applications filed before the effective date of the final rule by members of the

Rosario

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

C. Summary of Changes in the Final Rule

Following careful consideration of public comments, DHS has made some changes to the regulatory text proposed in the NPRM.

As discussed in detail elsewhere in this preamble, the changes in this final rule include the following:

Asylum Application, Interview, and Employment Authorization for Applicants,

84 FR 62374 (proposed Nov. 14, 2019).

1. Effective Date

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

apply any provisions of this rule to applications for employment authorization under 8 CFR 274a.12(c)(8) and (c)(11) that are pending on the final rule's effective date. Except as noted below, the provisions of this rule will apply only to applications for employment authorization based on pending asylum applications ((c)(8) initial and renewal applications) and applications for employment applications based on parole ((c)(11) initial and renewal applications) that are postmarked (or if applicable, electronically submitted) on or after the effective date; EAD applications that were postmarked before the effective date of this final rule, accepted as properly filed by USCIS pursuant to 8 CFR 103.2(a)(1) and (a)(2), and are deemed pending on the effective date of this final rule, will be adjudicated under the respective prior regulations. As the criminal provisions will not be applied to aliens with initial and renewal EAD applications under (c)(8) or (11) that are pending on the effective date of this final rule as initially proposed, DHS will not require these aliens to appear for biometrics collection associated with their pending EAD applications. This amendment is reflected by the deletion of proposed 208.7(a)(1)(iv).

DHS will only apply the termination provisions to aliens who filed their applications for employment authorization (initial and renewal) on or after the effective date of this final rule, regardless of whether their asylum application was filed before or after the effective date of the final rule. DHS will only apply the illegal entry bar to eligibility for employment authorization to aliens who entered or attempted to enter the United States at a place and time other than lawfully through a U.S. port of entry on or after the effective date of this final rule. This change is reflected in 208.7(a)(1)(iii)(G).

DHS will only apply the one-year filing deadline provision to aliens who filed their asylum application on or after the effective date of this rule. This change is reflected in 208.7(a)(1)(iii)(F). DHS will only apply the criminal bars for particularly serious crimes and serious non-political crimes where the conviction or offense triggering the bar occurred on or after the effective date of the rule. DHS will apply the aggravated felony bar to any conviction regardless of the conviction date. These changes are reflected in 208.7(a)(1)(iii)(A)-(C).

2. Illegal Entry

DHS proposed to exclude from (c)(8) EAD eligibility any alien who entered or attempted to enter the United States at a place and time other than lawfully through a U.S. port of entry, with the limited exception of when an alien demonstrates that he or she: (1) Presented himself or herself without delay to the Secretary of Homeland Security (or his or her delegate); (2) indicated to a DHS agent or officer an intent to apply for asylum or expressed a fear of persecution or torture; and (3) otherwise had good cause for the illegal entry or attempted entry. In the final rule, DHS is clarifying that to meet the first prong of this three-part exception, the alien must present himself or herself without delay, but no later than 48 hours after the entry or attempted entry, to the Secretary or his or her delegate.

3. One-Year Filing Deadline

DHS is emphasizing the importance of the statutory one-year filing in this final rule by providing that aliens who fail to file their asylum applications within 1 year of their arrival into the United States will be ineligible for a (c)(8) EAD while their asylum application is pending until an asylum officer or an IJ has determined that the alien meets an exception under INA section 208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D). However, DHS is making a clarifying amendment to 8 CFR 208.7(a)(1)(iii)(F) to replace the word “beyond” with “after” to more clearly indicate that aliens are not eligible for a (c)(8) EAD if the alien filed his or her asylum application

after

the statutory one-year filing deadline. DHS is also amending 8 CFR 208.7(a)(1)(iii)(F) to clarify that the one-year filing requirement does not apply if the alien was a UAC on the date their asylum application was filed. For additional discussion, see section IV. Discussion of the Final Rule, ¶ B. One-Year Filing Deadline.

4. Criminal Bars to Eligibility

In the NPRM, DHS proposed to exclude from eligibility for employment authorization aliens who have: (1) Been convicted of any aggravated felony as defined under section 101(a)(43) of the INA, 8 U.S.C. 1101(a)(43); (2) been convicted of any felony in the United States or serious non-political crime outside the United States; or (3) been convicted in the United States of certain public safety offenses involving domestic violence or assault; child abuse or neglect; possession or distribution of controlled substances; or driving or operating a motor vehicle under the influence of alcohol or drugs, regardless of how the offense is classified by the state or local jurisdiction. DHS proposed that it would consider, on a case-by-case basis, whether aliens who have been convicted of any non-political foreign criminal offense, or have unresolved arrests or pending charges for any non-political foreign criminal offenses, warrant a favorable exercise of discretion. DHS requested public comment on whether these and additional crimes should be included as bars to employment authorization.

DHS carefully considered the public comments received, including those suggesting that bars to (c)(8) EAD eligibility should align with bars to asylum. DHS disagrees that (c)(8) EAD bars

must

align with asylum bars. DHS recognizes that DOJ and DHS have proposed a separate joint rule enumerating similar criminal bars to asylum, and has chosen to adopt the bars in that rule, if finalized, based on the similarity to offenses initially proposed in this rulemaking and the similar impact of protecting public safety by preventing aliens with significant criminal histories from obtaining a discretionary benefit.

The bars proposed in the DOJ-DHS joint NPRM will replace the public safety offenses and arrests DHS initially proposed in this rulemaking. DHS also revised the bar relating to serious non-political crimes committed outside the United States to align with the statutory bar to asylum and to reflect that a serious non-political crime does not require a conviction.

These changes are reflected at 208.7(a)(1)(iii)(B)-(D). For additional discussion, see section IV. Discussion of the Final Rule, ¶ C. Criminal Bars to Eligibility.

See

Proposed rule:

Procedures for Asylum and Bars to Asylum Eligibility,

84 FR 69640 (Dec. 19, 2019). By reference to 8 CFR 208.13(c), DHS does not intend that these criminal bars incorporate INA 208(b)(2)(A)(1)(i), (iv), or (v) (as referenced via 8 CFR 208.13(c)(1)), or 8 CFR 208.13(c)(2)(C), (E), or (F).

An alien is barred from asylum if there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside of the United States.

See

INA section 208(b)(2)(A)(iii) of the INA, 8 U.S.C. 1158(b)(2)(A)(iii).

5. Applicant-Caused Delays

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

outstanding or has not been remedied at the time the initial (c)(8) EAD application is

filed

will result in the denial of the EAD application. Unlike the date of adjudication, the alien has control over the date of filing. DHS is making this change in response to public comments proposing that DHS consider alternative ways to protect due process and gain efficiencies in the adjudication of the asylum application DHS believes this modification will provide the applicant with certainty of their eligibility requirements under the applicant-caused delay provision of the rule, while disincentivizing applicants from prolonging the adjudication of their asylum application.

Further, DHS provided examples of what may constitute an applicant-caused delay in the NPRM but did not clearly indicate whether applicant-caused delays would affect applications for initial (c)(8) EADs or renewal EADs or both. DHS is clarifying that applicant-caused delays only apply to initial applications for (c)(8) EADs by adding the word “initial” to 8 CFR 208.7(a)(1)(iv).

D. Summary of Costs, Benefits, and Transfer Payments

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

The quantified maximum population this rule will apply to is about 290,000 annually. DHS assessed the potential impacts from this rule overall, as well as the individual provisions, and provided quantitative estimates of such impacts where possible and relevant. For the provisions involving biometrics and the removal of recommended approvals, the quantified analysis covers the entire population. For the change to a 365-day waiting period to file an EAD, the quantified analysis also covers the entire population; however, DHS relies on historical data to estimate the costs for affirmative cases and certain assumptions to provide a maximum potential estimate for the remaining affected population. For the provisions that will potentially end some EADs early, DHS estimated only the portion of the costs attributable to affirmative cases because DHS has no information available to estimate the number of defensively-filed cases.

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

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

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

Table 1—Summary of Costs and Transfers

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)

1. Population: 39,000.

2. Cost: $542.7 million (quantified impacts for 39,000 of the 153,381 total population).

3. Reduction in employment tax transfers: $83.2 million (quantified impacts for 39,000 of the 153,381).

4. Cost basis: Annualized equivalence cost.

5. Summary: Lost compensation for a portion of DHS affirmative asylum cases who will have to wait longer to earn wages under the rule; nets out cost-savings for aliens who will no longer file under the rule; includes partial estimate of DHS referral cases to DOJ-EOIR. It does not include impacts for defensively-filed cases.

DHS emphasizes that the costs of the rule in terms of lost or deferred labor readings will potentially depend on the extent of surplus labor in the labor market. In the current environment with COVID-19-related layoffs and unemployment, there is the potential that the impacts will be mainly transfers and less in terms of costs.

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

1. Population: 114,381.

2. Cost: $2.39 billion (quantified impacts for the remaining 114,381 of the 153,381 total population).

3. Reduction in employment tax transfers: $366.2 million (quantified impacts for the remaining 114,381 of the 153,381).

4. Cost basis: Annualized equivalence cost.

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

Biometrics requirement

1. Population for initial and renewal EADs: 290,094.

2. Cost: $36.3 million.

3. Reduction in employment tax transfers: None.

4. Cost basis: Annualized equivalence cost.

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

Eliminate recommended approvals

1. Population: 1,930 annual.

2. Cost: $13.9 million.

3. Reduction in employment tax transfers: $2.13 million.

4. Cost basis: Annualized equivalence cost.

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

Terminate EADs if asylum application denied/dismissed (DHS)

1. Population: 575 (current and future).

2. Cost: $31.8 million.

3. Reduction in employment tax transfers: $4.9 million.

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

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

II. Unquantified:

Clarify employment eligibility under (c)(11) category for I-765

a. Population: 13,000.

b. Cost: Delayed/forgone earnings.

c. Cost basis: N/A.

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

Criminal activity/illegal entry bar

DHS is unable to estimate the number of aliens impacted that will no longer be eligible to receive an EAD while their asylum applications are being adjudicated. Impacts would involve forgone earnings and potentially lost taxes.

One-year filing deadline

Some portion of the 8,326 annual filing bar referrals will no longer be eligible to receive an EAD while their asylum applicants are being adjudicated. Impacts would comprise deferred/delayed or forgone earning and potentially lost taxes. DHS does not have data on filing bar cases referred to DOJ-EOIR.

Terminate EADs if asylum 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 and are employed. Costs would involve forgone earnings and tax transfers for any such EADs that would be terminated earlier than they otherwise would, as well as forgone future earnings and tax transfers. DHS acknowledges that as a result of this change businesses that have hired such workers will incur labor turnover costs earlier than without this rule. Businesses unable to replace these workers will also incur productivity losses.

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

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

pay workers to work overtime hours. DHS does not know what this next best alternative may be for those companies. As a result, DHS does not know the portion of overall effects of this rule that are transfers or costs, but estimates the maximum monetized impact of this rule in terms of delayed/lost labor compensation. If all companies are able to easily find reasonable labor substitutes for the positions the asylum applicant would have filled, they will bear little or no costs, so $4.459 billion (annualized at 7 percent) will be transferred from asylum applicants to workers currently in the labor force or induced back into the labor force (we assume no tax losses as a labor substitute was found). Conversely, if companies are unable to find reasonable labor substitutes for the position the asylum applicant would have filled then $4.459 billion is the estimated maximum monetized cost of the rule, and $0 is the estimated minimum in monetized transfers from asylum applicants to other workers. In addition, under this scenario, because the jobs would go unfilled there would be a loss of taxes. DHS estimates $682.5 million as the maximum decrease in employment tax transfers from companies and employees to the Federal Government.

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

See

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

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

Because the biometrics requirement implemented in this rule is a cost to applicants and not a transfer, its minimum annual value of $27.08 million is the minimum cost of the rule. The range of impacts described by these two scenarios, plus the consideration of the biometrics costs, are summarized in Table 2 below (Table 2A and 2B capture the impacts a 3 and 7 percent rates of discount, respectively).

The two scenarios described above represent the estimated endpoints for the range of monetized impacts resulting from the provisions that affect the amount of time an asylum applicant is employed. However, DHS is aware that the outbreak of COVID-19 will likely impact these estimates in the short run.

As discussed above, the analysis presents a range of impacts, depending on if companies are able to find replacement labor for the jobs asylum applicants would have filled. In April 2020, the unemployment rate increased by 10.3 percentage points to 14.7 percent.

This marks the highest rate and the largest over-the-month increase in the history of the series (seasonally adjusted data are available back to January 1948). By comparison, the unemployment rate for the same month in 2019 was 3.6%.

DHS assumes that during the COVID-19 pandemic, with additional available labor nationally, companies are more likely to find replacement labor for the job the asylum applicant would have filled.

Thus, in the short-run during the pandemic and the ensuing economic recovery, the lost compensation to asylum applicants as a result of this rule is more likely to take the form of transfer payments from asylum applicants to other available labor, than it is to be costs to companies for lost productivity because they were unable to find replacement labor. DHS notes that although the pandemic is widespread, the severity of its impacts varies by locality, and there may be structural impediments to the national and local labor market. Consequently, it is not clear to what extent the distribution of asylum applicants overlaps with areas of the country that will be more or less impacted by the COVID-19 pandemic. Accordingly, DHS cannot estimate with confidence to what extent the impacts will be transfers instead of costs.

On March 13, 2020, the President declared that the COVID-19 outbreak in the United States constitutes a national emergency. See `Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak,” available at

https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/.

Department of Labor, Bureau of Labor Statistics, The Employment Situation—April 2020. Available at:

https://www.bls.gov/news.release/archives/empsit_05082020.pdf.

Department of Labor, Bureau of Labor Statistics, The Employment Situation—April 2020, Employment Situation Summary Table A. Household data, seasonally adjusted. Available at:

https://www.bls.gov/news.release/archives/empsit_05082020.pdf.

The Congressional Budget Office estimates the unemployment rate is expected to average close to 14 percent during the second quarter, See: CBO's Current Projections of Output, Employment, and Interest Rates and a Preliminary Look at Federal Deficits for 2020 and 2021,

https://www.cbo.gov/publication/56335,

April 24, 2020.

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

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

[$ millions]

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)

$0.0

$1,473.2

$4,459.0

$2,229.5

Transfers—Taxes

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

225.5

682.4

0.0

341.2

Costs:

Cost Subtotal—Biometrics

Biometrics Requirements

27.1

45.5

27.1

45.5

36.35

Cost Subtotal—Lost Productivity

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

1,473.2

4,459.0

0.0

2,229.5

Total Costs

1,500.2

4,504.5

27.1

45.5

2,265.8

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

[$ millions]

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

$1,473.3

$4,459.5

$2,229.7

Transfers—Taxes

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

225.5

682.5

341.2

Costs:

Cost Subtotal—Biometrics

Biometrics Requirements

27.1

45.5

27.1

45.5

36.3

Cost Subtotal—Lost Productivity

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

1,473.3

4,459.5

0.0

2,229.7

Total Costs

1,500.4

4,505.0

27.1

45.5

2,266.1

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

Table 3—OMB A-4 Accounting Statement

[$ millions, 2019]

[Period of analysis: 2020-2029]

Category

Primary

estimate

Minimum

estimate

Maximum

estimate

Source citation

(RIA, preamble, etc.)

Benefits:

Monetized Benefits

(7%)

(3%)

N/A

RIA.

Annualized quantified, but un-monetized, benefits

N/A

RIA.

Unquantified Benefits

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

RIA.

Costs:

Annualized monetized costs (discount rate in parenthesis)

(7%)

(3%)

$2,266.1

2,265.8

$27.08

27.08

$4,505.0

4,504.5

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.

RIA.

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

There would also be delayed or forgone labor income for EAD applicants impacted by the criminal and 1-year filing provisions, renewal applicants, transfers from the (c)(11) group, and filing bar cases, all of whom would be subject to some of the criteria being implemented in this rule. In addition, such impacts could also affect those who would be eligible currently for an EAD, or have such eligibility terminated earlier, but would be ineligible for an EAD under the rule.

Delaying and/or eliminating employment authorization eligibility would have a negative impact on asylum seekers' welfare. The removal or delay of some workers regarding employment could have an adverse effect in terms of their health insurance.

Transfers:

Annualized monetized transfers: “on budget”

(7%)

(3%)

RIA.

From whom to whom?

N/A

N/A.

Annualized monetized transfers: Compensation

(7%)

(3%)

2,229.7

2,229.5

0.00

4,459.5

4,459.0

RIA.

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.

Annualized monetized transfers: Taxes

(7%)

(3%)

341.2

0.00

682.5

682.4

RIA.

From whom to whom?

A reduction in employment taxes from companies and employees to the Federal Government. There could also be a transfer of Federal, state, and local income tax revenue (provisions: 365-day wait + end EADs early + end recommended approvals) that are not quantified.

Category

Effects

Source citation

(RIA, preamble, etc.)

Effects on state, local, and/or tribal governments

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

RIA.

Effects on small businesses

This 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 denied asylum cases under DOJ-EOIR purview will result in businesses that have hired such workers incurring labor turnover costs earlier than without this rule. Such small businesses may also incur costs related to a difficulty in finding workers that may not have occurred without this rule

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

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

The biometrics requirement will provide a benefit to the U.S. government by enabling DHS to know with greater certainty the identity of aliens requesting EADs in connection with an asylum application. The biometrics requirement also will allow DHS to conduct criminal history background checks to confirm the absence of a disqualifying criminal offense, to vet the applicant's biometrics against government databases (for example, FBI databases) to determine if he or she matched any criminal activity on file, to verify the applicant's identity, and to facilitate card production.

Along with the changes summarized above and discussed in detail in the preamble and regulatory impact sections of this rule, DHS will modify and clarify existing regulations dealing with technical and procedural aspects of the asylum interview process, USCIS authority regarding asylum, applicant-caused delays in the process, and the validity period for EADs. DHS discusses these provisions in the unquantified impacts section of the analysis.

II. Purpose of This Rule

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

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

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 rule, DHS is addressing, in part, 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 providing that, on or after August 25, 2020, any alien who enters or attempts to enter the United States at a place and time other than lawfully through a U.S. port of entry will be ineligible to receive a (c)(8) EAD, with limited exceptions. DHS is also making administrative reforms that will ease some of the administrative burdens USCIS faces in accepting and adjudicating applications for asylum and related employment authorization.

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

As explained more fully below, DHS believes these reforms will help mitigate the crisis that our immigration and asylum systems are facing as a consequence of the mass migration of inadmissible aliens across our southern border,

and improve the current asylum backlog, helping to clear the way for meritorious asylum applications to be received, processed, and adjudicated more quickly. This will give bona fide asylum seekers the certainty they deserve but are currently deprived of because of the flood of frivolous, fraudulent, or otherwise non-meritorious asylum claims clogging the system. The extensive resources required to process and care for these aliens pulls personnel away from processing bona fide asylum claims and securing our Nation's borders. Additionally, illicit organizations benefit financially by smuggling aliens into the United States and encouraging abuse of our asylum procedures. This strategic exploitation of our Nation's

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 for such relief or protection, 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 have their claims decided quickly and, if granted, extended the protections that the United States has offered for over a century, including employment authorization, to aliens legitimately seeking refuge from persecution.

Id.

A. Efforts to Reform the Asylum System

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

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 sudden influxes of asylum seekers, such as subsequently occurred with the Mariel boatlift—a mass influx of Cuban citizens and nationals, many of whom had criminal histories, to the United States in 1980.

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 198

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

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 (former 8 CFR 208.4).

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

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

See, e.g.,

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

See Martin, supra

note 27, at p. 734;

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

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

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 27, 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 27, at p. 733-37.

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

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, with an additional 30 days for adjudication. DOJ based the timeframe on the 180-day processing goals it had set for asylum officers and IJs to complete asylum cases at a time when the volume of cases was substantially lower than the present day level.

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);