Employment Authorization Reform for Asylum Applicants

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Federal Register › Vol. 91 › 91 FR 8616

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ding asylum application, DHS believes it is necessary to achieve its goals of enhancing benefit integrity, protecting national security, and reducing resource strains.

2 USCIS OPQ DATA, “I-589 Processing Time With and Without Admin Closed by Fiscal Year (FY2022-2025) (May 27, 2025). DHS notes these processing times are under LIFO processing, so these are still the “newer” cases being adjudicated. Further, these adjudications are not reducing the overall size of the asylum backlog.

3. Amend 8 CFR 208.7(b), Renewal

DHS proposes to clarify and consolidate the requirements for requesting a (c)(8) EAD renewal and specify that aliens applying for renewal (c)(8) EADs must also submit biometrics.

4. Amend 8 CFR 208.7(c), Termination

Under the proposed rule, termination of a (c)(8) EAD would occur: (1) immediately following the denial of an asylum application by an asylum officer, unless the case is referred to an Immigration Judge; (2) on the date that is 30 days after the date on which an Immigration Judge denies an asylum application, unless the alien makes a timely appeal to the Board of Immigration Appeals; or (3) immediately following the denial or dismissal by the Board of Immigration Appeals of an appeal of a denial of an asylum application.

5. Amend 8 CFR 274a.12(c)(8)

DHS proposes to remove the reference to recommended approvals because USCIS no longer issues recommended approvals as a preliminary decision for affirmative asylum adjudications.

6. Amend 8 CFR 274a.13, Application for Employment Authorization

Under the proposed rule, approval of (c)(8) EAD applications would be at USCIS' discretion, in keeping with its discretionary authority under section 208(d)(2) of the INA, 8 U.S.C. 1158(d)(2). DHS also proposes to replace the detailed information about filing and adjudicating applications for (c)(8) EADs with a reference to 8 CFR 208.7.

8 CFR 274a.13, Application for Employment Authorization

7. Technical and Conforming Updates to the Proposed Amendments

DHS proposes technical and conforming amendments to the affected regulations to align with the major changes described previously, including structural updates to 8 CFR 208.7(a) in order to incorporate the new provisions. The proposed rule would also revise outdated language, such as replacing references to “the commissioner” with “USCIS.”

C. Impact of Effective Date of the Final Rule

Under this proposed rule, DHS will allow aliens with pending asylum applications that have not yet been adjudicated and who already have employment authorization before the final rule's effective date to remain employment authorized until the expiration date on their current EAD, unless the card is terminated or revoked on the grounds specified in regulations in effect when their EAD was issued.

In this proposed regulation, there are certain provisions that apply only to initial (c)(8) EAD applications filed on or after the effective date of the final rule. Provisions that apply only to initial (c)(8) EAD applications are noted in the proposed regulatory text. The remaining proposed provisions apply to both initial and renewal (c)(8) EAD applications filed on or after the effective date of the final rule. In general, and unless otherwise specified, aliens who file renewal (c)(8) EAD applications on or after the effective date of the final rule would be subject to the applicable provisions in this proposed rule regardless of the date on which their initial application for a (c)(8) EAD was filed

riod to apply for and receive a (c)(8) EAD, and the pause and re-start of (c)(8) EAD application acceptance. With regard to the pause and re-start, USCIS anticipates that the rule would result in an initial and potentially lengthy pause. USCIS anticipates that this pause would be instituted after USCIS reviewed average asylum application times for the first 90-day period after the rule took effect. USCIS acknowledges that, while the asylum adjudication processing time calculation will be based solely on affirmative asylum applications, the pause on acceptances of (c)(8) employment authorization applications will impact both affirmative and defensive asylum applicants. This rule will not have any impact on the ability to apply to replace lost, stolen, or damaged (c)(8) EADs.

1. Processing Timeframe

DHS proposes to amend 8 CFR 208.7(a)(1) to extend the processing requirement from 30 days to 180 days for all initial (c)(8) EAD applications filed on or after the effective date of the final rule. Any initial (c)(8) EAD applications that are pending as of the effective date of the final rule would continue to be subject to the current 30-day processing requirement. A fuller discussion of this change and litigation relating to processing timeframes in Rosario v. USCIS appears in section V.D of this preamble. There are currently no processing timeframe requirements for renewal (c)(8) EAD applications, and there would be no changes to timeframe requirements for renewal (c)(8) EAD applications within this proposed rule.

2. Waiting Period To Apply for and Receive an Initial (c)(8) EAD

DHS proposes to amend the waiting period to apply for and receive an initial (c)(8) EAD to 365 calendar days. This regulation would apply to all initial applications for (c)(8) EADs filed on or after the effective date of the final rule. Any initial (c)(8) EAD applications that are pending as of the effective date of the final rule would still be subject to the current 180-day Asylum EAD Clock

would be no changes related to waiting periods for renewal (c)(8) EAD applications within this proposed regulatory action. 4

3 USCIS advises aliens that they should file their renewal Form I-765 within 6 months of the expiration date of the current EAD. USCIS, “I-765, Application for Employment Authorization,” https://www.uscis.gov/i-765 (last updated Apr. 29, 2025).

4 A settlement in Garcia Perez v. DHS, 2:22-cv-806 (W.D. Wash. 2022) was approved in September 2024 after class members challenged EOIR and USCIS policies and procedures regarding the 180-day Asylum EAD Clock. Among other provisions, the Garcia Perez settlement provides asylum applicants with an ability to obtain information about their Asylum EAD Clock and challenge the reason for any stops to the clock. The current mechanism to do this will be simplified by conversion to a 365-calendar day calculation. To the extent that there is conflict between the settlement agreement and the 365-calendar day calculation, this rule change would supersede the Garcia Perez settlement agreement, which contains a clause acknowledging the settlement agreement does not preclude future regulatory or statutory changes. See Garcia Perez Settlement Agreement, Section II.C.7— Impact of Statutory, Regulatory, or Precedential Changes, and/or Operational Needs.

n the settlement agreement and the 365-calendar day calculation, this rule change would supersede the Garcia Perez settlement agreement, which contains a clause acknowledging the settlement agreement does not preclude future regulatory or statutory changes. See Garcia Perez Settlement Agreement, Section II.C.7— Impact of Statutory, Regulatory, or Precedential Changes, and/or Operational Needs.

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

DHS proposes to pause and re-start the acceptance of initial (c)(8) EAD applications based on the average processing time of asylum application adjudications over a 90-day period. For purposes of this NPRM, an affirmative asylum application is considered processed when a grant, referral, or denial is issued or the application is administratively closed. Cases described as administrative closures are those that do not receive a final decision on the merits but are closed for reasons such as lack of jurisdiction or abandonment of the asylum application, USCIS uses different terms to address the lifespan of a case, including both “process time” and “cycle time”. Generally, “processing time” is the time from receipt to completion for each individual form and can be averaged over a specific period of time in the past, but does not take into account currently pending applications and is not used for projections. “Cycle time” is defined as how many months' worth of receipts represents the current pending case volume. This is an internal metric that can be used for projections because it takes into account current pending volume, anticipated receipts, and expected completions. As an internal management metric, cycle times are generally comparable to the agency's publicly posted median processing times. Cycle times are what the operational divisions of USCIS use to gauge how much progress the agency is, or is not, making on reducing our pending affirmative asylum caseload and overall case processing times

nt pending volume, anticipated receipts, and expected completions. As an internal management metric, cycle times are generally comparable to the agency's publicly posted median processing times. Cycle times are what the operational divisions of USCIS use to gauge how much progress the agency is, or is not, making on reducing our pending affirmative asylum caseload and overall case processing times. DHS would pause the acceptance of initial (c)(8) EAD applications when the average processing time for all affirmative asylum applications over a consecutive period of 90 days adjudication exceeds 180 days. Acceptance of initial (c)(8) EAD applications would resume when the average processing time for affirmative asylum adjudication over a consecutive period of 90 days is less than or equal to 180 days. The proposed provisions to pause and re-start EAD application acceptance only impact initial (c)(8) EAD applications. Thus, even in a period in which USCIS has paused the acceptance of initial (c)(8) EAD applications due to asylum application processing times, USCIS will continue to receive and adjudicate renewal (c)(8) EAD applications, as well as EAD applications in other eligibility categories.

The rule would require the USCIS Director to review affirmative asylum application processing times for the purpose of determining whether USCIS' (c)(8) EAD application acceptances would be paused or restarted. This requirement would begin on the effective date of the final rule and the Director would conduct the first required review of asylum application processing times after the first 90-day period thereafter. Based on recent processing times, USCIS anticipates that the Director will institute an initial pause on asylum EAD adjudications following that review. The USCIS Director's determination is not discretionary, and the determination to pause or restart acceptance of initial (c)(8) EAD applications is directly tethered to the processing times of all affirmative asylum applications over the previous 90-day period

nt processing times, USCIS anticipates that the Director will institute an initial pause on asylum EAD adjudications following that review. The USCIS Director's determination is not discretionary, and the determination to pause or restart acceptance of initial (c)(8) EAD applications is directly tethered to the processing times of all affirmative asylum applications over the previous 90-day period. DHS proposes to notify the public of any such processing changes and provide the supporting processing times through USCIS website announcements.

D. Summary of Benefits and Costs

DHS expects that this proposed rule will generate substantial benefits. As discussed later in this preamble, the asylum system is overwhelmed, federal adjudications resources are strained, and the affirmative asylum application backlog serves as a magnet pulling aliens into the U.S. illegally. The surge in both asylum filings and associated EADs over the past few years has created an untenable situation. This proposed rule would benefit USCIS by allowing it to operate under long-term, sustainable case processing times for initial EAD applications for asylum applicants, to allow sufficient time to address national security, public safety, or fraud concerns, and to maintain technological advances in document production and identity verification. Just as the 1994 INS rulemaking referenced below, DHS expects that this action would reduce frivolous and fraudulent asylum claims and perverse economic incentives to obtain an EAD under meritless asylum claims. 59 FR 14779 (Mar. 30, 1994); 59 FR 62284 (Dec. 5, 1994). Frivolous, fraudulent, and meritless asylum applications and related filings for employment authorization can serve as a magnet for illegal immigration and generate costs to localities, states, the national economy, and strain resources. These costs could include public assistance and additional local or state resources used to assist aliens, and this rule would potentially mitigate some of these costs

lous, fraudulent, and meritless asylum applications and related filings for employment authorization can serve as a magnet for illegal immigration and generate costs to localities, states, the national economy, and strain resources. These costs could include public assistance and additional local or state resources used to assist aliens, and this rule would potentially mitigate some of these costs. DHS expects that these changes would reduce confusion regarding EAD requirements for aliens with pending asylum applications and the public, help ensure the regulatory text reflects current DHS policy and more faithfully implements the intent of the statute while simultaneously improving program integrity. DHS cannot currently quantify all of the potential benefits of this proposed rule.

In addition, if employers are able to hire American workers to fill the jobs the asylum applicants would otherwise hold, the change in earnings to such aliens would constitute beneficial wage and benefit transfers to American workers and would potentially pose no productivity loss or costs to employers. While it is possible that aliens without work authorization could require assistance from their social and support networks, which could include public entities, there could be a counterbalance; as this rule potentially will reduce immigration, there could be less of an economic strain on states, local government, and non-governmental organizations, in terms of any public assistance and resources that are currently provided to asylum applicants. Furthermore, DHS anticipates this proposed rule would decrease illegal migration and fraudulent claims for asylum applications and EADs.

Many of the impacts described above will be indirect, unquantifiable benefits resulting from this proposed rule. DHS cannot estimate these potential indirect impacts (whether costs, benefits, transfers) or second order effects and beyond, as they are beyond the scope of this analysis

increase transparency pertinent to application and filing requirements. As discussed in the preamble, the asylum program has been subject to identity fraud concerns historically.

The impacts of this proposed rule include both potential distributional effects (which are transfers) and costs. The potential distributional impacts fall on the asylum applicants who may be delayed in entering the U.S. labor force or who may not obtain an EAD due to being ineligible ( e.g., aggravated felon, serious non-political crime, etc.) or due to a processing pause. The potential distributional impacts (transfers) would be in the form of lost opportunity to earn compensation (wages and benefits). A portion of this lost compensation might be transferred from asylum applicants to others that are currently employed in the U.S. labor force, possibly in the form of additional hours worked or overtime pay. A portion of the impact of this rule may also be borne by companies that would have hired the asylum applicants had they been eligible for an EAD or in the labor market earlier. However, if the affected employer were unable to find available workers, these companies could incur a cost to productivity and potential profit.

Companies may also incur opportunity costs by having to choose the next best alternative to immediately filling the job the asylum applicant would have filled. USCIS does not know what this next best alternative may be for those companies. As a result, USCIS does not know the portion of overall impacts of this rule that are transfers or costs. If companies can find replacement labor for the position the asylum applicant would have filled, this rule would have primarily distributional effects in the form of transfers from asylum applicants to others already in the labor market (or workers induced to return to the labor market). USCIS acknowledges that there may be additional opportunity costs to employers such as additional search costs

If companies can find replacement labor for the position the asylum applicant would have filled, this rule would have primarily distributional effects in the form of transfers from asylum applicants to others already in the labor market (or workers induced to return to the labor market). USCIS acknowledges that there may be additional opportunity costs to employers such as additional search costs. However, if companies cannot find a reasonable substitute for the labor an asylum applicant would have provided, the effect of this rule would primarily be a cost to these companies through lost productivity and profits.

USCIS uses the changes to earnings to asylum applicants as a measure of the overall impact of the rule—either as distributional impacts (transfers) or as a proxy for businesses' cost for lost productivity. It does not include additional costs to businesses for lost profits and opportunity costs or the distributional impacts for those in an applicant's support network. The lost compensation to these asylum applicants could range from $34.6 billion to $126.6 billion annually (undiscounted) depending on the wages the asylum applicant would have earned and other factors. The 5-year total discounted lost compensation to asylum applicants at 3 percent could range from $155.4 billion to $568.6 billion and at 7 percent could range from $135.5 billion to $495.8 billion (FY 2025 through FY 2029).

The quantified estimates may be overstated, as they assume that without this rule ( i.e. under the baseline) the EAD validity period would be longer than is currently permitted. 5 Since USCIS has reduced the maximum EAD validity period for aliens with pending asylum applications to 18 months, recipients must renew more often, which could result in fewer pending asylum applicants authorized to work over the 5-year period of analysis. This reduction would result from attrition in renewal applications and more frequent vetting

stributed its adjudication resources to work up to compliance. By extending the 30-day processing timeframe to 180 days, it is possible that resources could be reallocated, which could have the effect of reducing delays in processing status-granting benefit requests, and avoiding costs associated with hiring additional employees. However, there are many factors that could influence such processing. Additionally, if asylum filings decline, as this rule generates a disincentive to meritless claims with the goal of obtaining an EAD, then the public and the Federal Government could experience operational and cost efficiencies as it is based on adjudicating fewer asylum claims. DHS does not rule out that there could be resources allocated to other operational areas.

Table 1 provides a detailed summary of the regulatory changes and the expected impacts of proposed rule's provisions. USCIS estimates the primary impact of the rule would result from a pause in accepting all new initial (c)(8) EAD applications until USCIS' affirmative asylum applications processing time reach a 180-day average (Module 1). Additionally, USCIS provides impacts for provisions that would affect applicants (for initial and renewal EADs) when the pause is lifted (Module 2). However, USCIS does not include Module 2 in the total rule impact, because the Module 1 impacts (pause EADs) already accounted for impacts to all new EAD applicants. To include Module 2 would be double counting the impacts for the same population. Where a monetized figure is presented, it is based on a 7 percent annualized average, and the annual population is the midpoint of a high-low range.

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BILLING CODE 9111-97-C In addition to the information presented in Table 1, details and an A-4 accounting statement are provided in Section VI (Statutory and Regulatory Requirements) of the proposed rule

nnualized average, and the annual population is the midpoint of a high-low range.

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6 See Office of the Inspector General, OIG-16-130 “Potentially Ineligible Individuals Have Been Granted U.S. Citizenship Because of Incomplete Fingerprint Records” (Sept. 8, 2016), https://www.oig.dhs.gov/reports/2016-09/potentially-ineligible-individuals-have-been-granted-uscitizenship-because, finding “During immigration enforcement encounters with aliens, CBP and ICE take fingerprint records. These components and their predecessor, INS, used to collect aliens' fingerprint on two paper cards. One card was supposed to be sent to the FBI to be stored in its repository. The other fingerprint card was to be placed in the alien's file with all other immigration related documents.” Ultimately finding that “As long as the older fingerprint records have not been digitized and included in repositories, USCIS risks making naturalization decision without complete information and, as a result, naturalizing additional individuals who may be ineligible for citizenship or who may be trying to obtain U.S. citizenship fraudulently.” See also Office of the Inspector General, DHS, “Individuals with Multiple Identities in Historical Fingerprint Enrollment Records Who Have Received Immigration Benefits” DHS-OIG 17-111 (Sept

ns 103, 208, and 274A(h)(3) of the INA, 8 U.S.C. 1103, 1158, and 1324a(h)(3), as well as the Administrative Procedure Act (APA) at 5 U.S.C. 553. See Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2263 (2024) (“In a case involving an agency, of course, the statute's meaning may well be that the agency is authorized to exercise a degree of discretion. Congress has often enacted such statutes. For example, some statutes expressly delegate to an agency the authority to give meaning to a particular statutory term. Others empower an agency to prescribe rules to fill up the details of a statutory scheme, or to regulate subject to the limits imposed by a term or phrase that leaves agencies with flexibility, such as `appropriate' or `reasonable.' ”) (internal citations omitted).

• Sections 208(d)(1) and (d)(5)(B) of the INA, 8 U.S.C. 1158(d)(1) and (d)(5)(B), which authorize the Secretary to establish regulations concerning the procedures and conditions on asylum applications;

• Section 208(d)(2) of the INA, 8 U.S.C. 1158(d)(2), which provides the Secretary discretion to grant employment authorization to applicants for asylum if 180 days have passed since filing an application for asylum;

• Section 101(b)(1)(F) of the HSA, 6 U.S.C. 111(b)(1)(F), which establishes as a primary mission of DHS the duty to “ensure that the overall economic security of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland;” and

• Section 271(a)(3) of the HSA, 6 U.S.C. 271(a)(3), which confers authority on the Director of USCIS to establish “policies for performing [immigration adjudication] functions.”

), which establishes as a primary mission of DHS the duty to “ensure that the overall economic security of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland;” and

• Section 271(a)(3) of the HSA, 6 U.S.C. 271(a)(3), which confers authority on the Director of USCIS to establish “policies for performing [immigration adjudication] functions.”

F. Severability

The Department intends for the provisions of this proposed rule, if finalized, to be severable from each other and to be given effect to the maximum extent possible, such that if a court were to hold that any provision is invalid or unenforceable as to a particular alien or circumstance, the other provisions will remain in effect as to any other alien or circumstance. For example, if a court of competent jurisdiction were to hold that the proposed amendments to the regulations under 8 CFR 208.7(a)(2) alone should be enjoined or should be vacated for some reason, it is the intent of DHS that such court would narrowly construe its decision and leave the remainder of the rule in place with respect to all other covered aliens and circumstances. While the various provisions of this proposed rule, taken together, would provide maximum benefit with respect to improving the integrity of both the asylum program and employment authorization benefits process, strengthening the Department's national security and public safety posture, and decreasing the strain on operational resources, none of the provisions are fully interdependent and unable to operate separately.

DHS recognizes that the proposed provisions at 8 CFR 208.7(a)(1)(i), 8 CFR 208.7(a)(1)(iv), and 8 CFR 208.7(a)(1)(v) are related to each other, but they may still exist independently

same day, the President issued Executive Order (E.O.) 14159, Protecting the American People Against Invasion, to ensure “that the Federal Government protects the American people by faithfully executing the immigration laws of the United States.” 13 The E.O. also directed the Secretary to ensure “that employment authorization is provided in a manner consistent with section 274A of the INA (8 U.S.C. 1324a), and that employment authorization is not provided to any unauthorized alien in the United States.” 14

13 E.O. 14159 of Jan. 20, 2025, “Protecting the American People Against Invasion,” sec. 1, 90 FR 8443 (Jan. 29, 2025).

14 Id. at sec. 16(c), 90 FR 8446.

Through this proposed rule, DHS is addressing, in part, the President's national emergency and invasion at the southern border declarations by: (1) reducing incentives for aliens to file frivolous, fraudulent, or otherwise meritless asylum applications intended primarily to obtain employment authorization and to remain in the United States for years due to the current backlog of asylum cases; (2) disincentivizing illegal entry into the United States by providing that, on or after the effective date of the final rule, any alien who enters or attempts to enter the United States at a place and time other than lawfully through a U.S. port of entry will be ineligible to receive a (c)(8) EAD, with limited exceptions; (3) reducing opportunities for fraud; and (4) protecting USCIS' ability to have sufficient time and resources to receive, meaningfully screen and vet, and process initial (c)(8) EAD applications, while also protecting the security-related processes undertaken for each employment authorization application. This rule also aims to address the increased public safety and national security concerns exacerbated by large numbers of aliens illegally crossing the border and overwhelming the U.S. immigration system

tional security and public safety threat.

18 Bureau of Counterterrorism, DOS, “Designated Foreign Terrorist Organizations,” https://www.state.gov/foreign-terrorist-organizations/ (last visited May 23, 2025); E.O. 14157 of Jan. 20, 2025, “Designating Cartels and Other Organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists,” 90 FR 8439 (Jan. 29, 2025).

19 U.S. Congress, House of Representatives, Committee on Homeland Security Majority Report, Phase 2 Interim Report, 118th Cong., 1st sess., Sept. 7, 2023, https://homeland.house.gov/wp-content/uploads/2023/09/09.07-Phase-2-Final.pdf.

20 U.S. Congress, House of Representatives, Committee on Homeland Security Majority Report, Phase 2 Interim Report, 118th Cong., 1st sess., Sept. 7, 2023, https://homeland.house.gov/wp-content/uploads/2023/09/09.07-Phase-2-Final.pdf.

21 ICE, “Cartel Del Noreste Members Sent to Prison for Roles in Cartel-Linked Human Smuggling Scheme” (Nov. 4, 2024), https://www.ice.gov/news/releases/cartel-del-noreste-members-sent-prison-roles-cartel-linked-human-smuggling-scheme; DOJ, “Fatal human smuggling case and two alleged MS-13 members among those charged in relation to immigration and border security” (Apr. 4, 2025), https://www.justice.gov/usao-sdtx/pr/fatal-human-smuggling-case-and-two-alleged-ms-13-members-among-those-charged-relation; DOS, “In Dual Actions, Treasury Sanctions Clan Del Golfo Leadership in Colombia and Businesses” (Sept. 25, 2024), https://pa.usembassy.gov/in-dual-actions-treasury-sanctions-clan-del-golfo-leadership-in-colombia-and-businesses-owned-by-sinaloa-cartel-fentanyl-traffickers-in-mexico/; DOJ, “Law Enforcement Cooperation Between United States and Mexico Results in Mexican Takedown of Cartel-Linked Alien Smugglers,” (Feb. 20, 2025), https://www.justice.gov/opa/pr/law-enforcement-cooperation-between-united-states-and-mexico-results-mexican-takedown-cartel

outweigh any reliance interests.”).

23 USCIS, “Number of Service-wide Forms By Quarter, Form Status, and Processing Time” (Apr. 30, 2025), https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2025_q1.xlsx.

24 U.S. Department of Health and Human Services, “The Fiscal Impact of Refugees and Asylees Over 15 Years: Over $123 Billion in Net Benefit from 2005-2019” (Feb. 15. 2024), available at https://aspe.hhs.gov/sites/default/files/documents/ea6442054785081eb121fa5137cf837d/aspe-brief-refugee-fiscal-impact-study.pdf.

Further, many of the goals of this rule actually support the interests of those same asylum applicants, employers, and state and local communities. For example, the changes proposed in the rule would help deter frivolous, fraudulent, and otherwise meritless asylum filings, which would permit DHS to more efficiently adjudicate the applications for aliens with meritorious asylum claims. Employers who rely on employment-authorized aliens for a labor pool are unlikely to prefer aliens with criminal arrests and convictions, aliens who pose national security threats, or aliens who committed fraud during the immigration process. Similarly, while state and local communities have an economic interest in newly arrived aliens sustaining themselves and contributing to the economy, they also have an interest in protecting their communities from national security threats, aggravated felons, and other criminal and fraud risks.

It is the policy of the Executive Branch to protect the national sovereignty of the United States by facilitating the admission of aliens whose presence serves the national interest and preventing the admission of those who do not, as well as to protect national security and public safety. 90 FR 8327 (Jan. 29, 2025); 90 FR 8333 (Jan. 29, 2025). Aliens admitted into the United States may choose to file for a variety of immigration benefits or protections, one of which is asylum

he United States by facilitating the admission of aliens whose presence serves the national interest and preventing the admission of those who do not, as well as to protect national security and public safety. 90 FR 8327 (Jan. 29, 2025); 90 FR 8333 (Jan. 29, 2025). Aliens admitted into the United States may choose to file for a variety of immigration benefits or protections, one of which is asylum. This rulemaking is part of a series of reforms DHS is undertaking to improve the integrity of the asylum system, including streamlining efforts, so that those with meritorious asylum claims are adjudicated quickly and aliens who are ineligible are promptly denied.

B. Efforts To Reform the Asylum System

The Refugee Act of 1980, Public Law 96-212, 94 Stat. 102, was the first comprehensive legislation to establish the modern refugee and asylum system. 25 Signed into law in March 1980, the legislation was intended to “provide a permanent and systematic procedure for admission to this country of refugees of special humanitarian concern to the United States” and to provide provisions for effective resettlement of such refugees. 26 The Refugee Act also, for the first time, created a statutory basis for asylum, in order to help ensure that U.S. statutory law conformed to Article 33 of the 1951 U.N Convention relating to the Status of Refugees. 27 The law directed the Attorney General to establish a procedure for the granting of asylum status to aliens physically present in the United States, or at a land border or port of entry, if the Attorney General determines the alien meets the definition of a refugee. 28

25 The Refugee Act of 1980 codified the definition of a refugee from the 1967 United Nations Protocol Relating to the Status of Refugees. United Nations, “Protocol Relating to the Status of Refugees” (Jan. 31, 1967), 19 U.S.T. 6223, TIAS No. 6577, 606 U.N.T.S. 267.

26 Refugee Act of 1980, Public Law 96-212, sec. 101(b), 94 Stat. 102, 102 (Mar. 17, 1980).

27 H.R. Rep. No. 96-608 (1979)

ee. 28

26 Refugee Act of 1980, Public Law 96-212, sec. 101(b), 94 Stat. 102, 102 (Mar. 17, 1980).

27 H.R. Rep. No. 96-608 (1979).

28 Refugee Act of 1980, sec. 201(b), 94 Stat. at 105 (adding section 208 of the INA, 8 U.S.C. 1158); see also id. at sec. 201(a), 94 Stat. at 102 (codifying the following definition of “refugee”: “The term `refugee' means (A) any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. . . .”).

In June 1980, legacy Immigration and Naturalization Service (INS) issued an interim regulation implementing provisions of the Refugee Act. 29 Among other things, the regulation permitted district directors, in their discretion, to grant requests for employment authorization made by aliens who had filed non-frivolous asylum applications. 30 DHS notes the significance of even that interim regulation requiring that asylum applications be non-frivolous. The regulation did not, however, build in a waiting period, meaning aliens were eligible to request and receive employment authorization upon filing their asylum applications. 31 Further, the regulation did not specify any other restrictions related to employment authorization, such as the duration of employment authorization or grounds of ineligibility. 32

29 Aliens and Nationality; Refugee and Asylum Procedures, 45 FR 37392 (June 2, 1980)

iting period, meaning aliens were eligible to request and receive employment authorization upon filing their asylum applications. 31 Further, the regulation did not specify any other restrictions related to employment authorization, such as the duration of employment authorization or grounds of ineligibility. 32

29 Aliens and Nationality; Refugee and Asylum Procedures, 45 FR 37392 (June 2, 1980). This interim rule was not finalized until 1983. Aliens and Nationality; Asylum Procedures, 48 FR 5885 (Feb. 9, 1983).

30 45 FR 37394.

31 Id.

32 Id.

While the 1980 regulation fulfilled the Refugee Act's rulemaking mandate, it was a temporary regulatory mechanism and merely functioned to bridge the new statute with the system that was already in place while the U.S. government took up a period of deliberate study and analysis to design permanent procedures. 55 FR 30674, 30675 (July 27, 1990). In 1987, the INS published a more fulsome proposed regulation to reform asylum adjudications. 52 FR 32552 (Aug. 28, 1987). In 1988, the INS published a revised proposed rule in response to comments on the 1987 proposed rule, and in 1990, it promulgated the final regulation. 48 FR 5885 (Apr. 8, 1988); 55 FR 30674 (July 27, 1990). The final system included, among other changes, the creation of a new corps of asylum officers who would adjudicate asylum claims, moving away from district directors. 55 FR 30676. The final rule also changed the process for obtaining employment authorization, removing it from district director discretion and instead mandating employment authorization for asylum applicants who were not detained and whose applications an asylum officer determined were not frivolous. Id. at 30676-77. The validity period was set to 1 year, with renewable increments of up to 1 year. Id. The regulation also included automatic termination of employment authorization upon expiration of the EAD or 60 days after denial of asylum, whichever was longer. Id.; see also id. at 30682

comments related to the other proposed changes, including the proposed filing fee for asylum applications and associated employment authorization applications, the form of the asylum application, how incomplete applications would be processed, renewal of employment authorization, interviews and other procedures, and how failures to appear by the alien would be processed. See generally 59 FR 62284.

• Asylum applicants would be forced to work illegally in jobs where they would be underpaid and treated poorly but would have no means of redress because of the fear of reprisals.

• Advocated for eliminating the waiting period and maintaining the current rule, which allowed immediate applications for employment authorization and issuance within 90 days.

• Advised providing exceptions to the waiting period by granting employment authorization immediately or within 90 days to applicants who demonstrate hardship or economic need (such as those with no relatives in the United States or who have small children).

59 FR 62290. The INS responded to explain the belief that the asylum process should be separated from the employment authorization process and that the rule would discourage applicants from filing meritless asylum applications solely to obtain employment authorization. The INS further explained that it expected all applicants to have work authorization after 180 days unless their claims had been denied.

180 days unless their claims had been denied.

INS stated that it had considered in particular recommendations that it establish alternate means for adjudicating employment authorization based on the merits of the asylum application or on economic need. INS noted that either alternative would invite a large number of applications, thus diverting resources and undermining the goal of asylum reform. The Department noted that it did not believe loosening eligibility standards for employment authorization was the appropriate path in light of the large number of applicants who applied for asylum primarily as a means to gain work authorization, and that it believed the rule would instead provide the best way to discourage applications filed for this reason and enable it to grant asylum, and work authorization, to applicants meriting such relief. 59 FR 62290-91.

Clearly, the intent was that this would decouple asylum applications from employment authorization in order to disincentivize frivolous filings and allow the system to function properly. Further, DHS notes that the INS affirmatively decided to delay all aliens with pending asylum applications (both meritorious and meritless filings) the opportunity to apply for employment authorization expressly because the INS believed this measure would help combat frivolous, fraudulent, or otherwise meritless asylum applications filed primarily to obtain employment authorization and regain control over the backlog and processing times.

In 1996, shortly after the regulatory asylum reform, Congress passed comprehensive immigration enforcement legislation, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which, among other things, included provisions

on asylum adjudications. 43 IIRIRA states that any procedures established under section 208(d)(1) of the INA; 8 U.S.C

r the backlog and processing times.

on asylum adjudications. 43 IIRIRA states that any procedures established under section 208(d)(1) of the INA; 8 U.S.C. 1158(d)(1), “shall” provide that, in the absence of exceptional circumstances, final administrative adjudications of asylum applications “shall” be completed within 180 days after the date applications are filed. 44 Mirroring the 1994 regulatory reforms, IIRIRA also restricted the Secretary from granting employment authorization to asylum applicants until 180 days after the filing of the application for asylum. 45

43 Public Law 104-208, div. C, 110 Stat. 3009, 3009-546.

44 Id. sec. 604, 110 Stat. at 3009-694 (codified at INA sec. 208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii)).

45 Id. sec. 604, 110 Stat. at 3009-693 (codified at INA sec. 208(d)(2), 8 U.S.C. 1158(d)(2)).

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

46 Ruth Ellen Wasem, Congressional Research Service, “Asylum and `Credible Fear' Issues in U.S

ting the 1994 Asylum Reforms (which became effective in January 1995), including the following statement by INS Commissioner Doris Meissner, “Five years ago, INS launched badly needed reform of an asylum system that was overwhelmed, unresponsive and vulnerable to misuse.” 48 The news release continued:

46 Ruth Ellen Wasem, Congressional Research Service, “Asylum and `Credible Fear' Issues in U.S. Immigration Policy” (June 29, 2011), https://www.congress.gov/crs-product/R41753; INS, DOJ “Asylum Reform: Five Years Later” (Feb. 1, 2000), https://www.uscis.gov/sites/default/files/document/news/Asylum.pdf.

47 INS, DOJ “1999 Statistical Yearbook of the Immigration and Naturalization Service” (Mar. 2002), p. 100. Percent approved is `[t]he number of cases granted divided by the sum of: cases granted; denied; and referred to an Immigration Judge following an interview.”

48 INS, DOJ, “Asylum Reform: Five Years Later” (Feb. 1, 2000), https://www.uscis.gov/sites/default/files/document/news/Asylum.pdf.

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

49 Id.

INS statistics showed a “decrease of 75 percent in the number of new claims being filed with INS, from 127,129 in FY 1993 to 30,261 in FY 1999” while “the approval rate of cases heard by INS asylum officers has increased from 15 percent of cases adjudicated in FY 1993 to an approval rate of 38 percent in FY 1999, another indicator that INS is receiving more valid claims.” 50 These statistics show that the 1994 rulemakings had an unmistakable impact on asylum program integrity

ng what steps constitute a part of the adjudication and the length of time to adjudicate the applications. 52

52 See 59 FR 62284, 62289 (Dec. 5, 1994). On July 26, 2018, in Rosario v. USCIS, the U.S. District Court for the Western District of Washington granted summary judgment against the government and issued an order requiring USCIS to comply with the 30-day regulatory timeline at 8 CFR 208.7. 365 F. Supp. 3d 1156 (W.D. Wash. 2018).

Application Support Centers

One such operational challenge arose after the 1994 regulatory reforms, related to biometrics. In 1994 the INS was still using FD-258 fingerprint cards for the submission of biometrics for immigration benefit requests. The INS accepted those FD-258 fingerprint cards directly from applicants and petitioners through the mail. In 1997, when funding the agency for 1998, Congress prohibited the INS from accepting any fingerprint cards collected by entities outside the INS for immigration benefits, except in certain instances when collected by law enforcement agencies and in certain overseas situations. 53 Previously, certain “designated fingerprint services” entities could collect fingerprints and submit them to INS. This FD-258 process was fraught with both errors and fraud. 54 To comply with the law, INS established the Application Support Centers (ASCs), which continue to exist nationwide today and which DHS operates for the collection of biometrics for immigration benefits. See 63 FR 12979 (Mar. 17, 1998).

53 See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1998, Title I, Public Law 105-119, 111 Stat. 2440, 2447-48 (1997).

54 See Office of the Inspector General, DHS, OIG-16-130 “Potentially Ineligible Individuals Have Been Granted U.S. Citizenship Because of Incomplete Fingerprint Records” (Sept. 8, 2016), https://www.oig.dhs.gov/reports/2016-09/potentially-ineligible-individuals-have-been-granted-uscitizenship-because.

This new process was something of a double-edged sword

5-119, 111 Stat. 2440, 2447-48 (1997).

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

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

55 In essence, INS or USCIS would receive a benefit request and an employee would determine whether the filing was subject to a biometrics requirement. The employee would then determine the nearest ASC to the alien, according to the address provided on the request. The employee would have to then determine the next available appointment date and time for a biometrics collection at that particular ASC. Finally, the employee would have to create a paper appointment notice for the alien and mail it to the address provided on the request. In order to give the alien a reasonable amount of notice, and account for postal service delivery of the written appointment notice, appointments were typically scheduled approximately 30 days from the date of the appointment notice

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

58 USCIS Policy Memorandum No. 110, “Disposition of Cases Involving Removable Aliens” (Jul. 11, 2006).

59 Id

at did not rise to the level of aggravated felony—an additional 60-day hold would be required. Furthermore, in some cases, scheduling such an alien for an ASC appointment could use the entire 30-day (c)(8) EAD processing timeframe and that was prior to referring the case to FDNS or ICE.

58 USCIS Policy Memorandum No. 110, “Disposition of Cases Involving Removable Aliens” (Jul. 11, 2006).

59 Id.

60 USCIS, PM 110 (“USCIS will interrupt adjudication and FDNS will refer the case to ICE so that ICE has an opportunity to decide it, when and how it will issue an NTA and/or detain the alien.”); see also Memorandum of Agreement Between United States Citizenship and Immigration Services and United States Immigration and Customs Enforcement on the Issuance of Notices to Appear to Aliens Encountered During an Adjudication (June 20, 2006).

On May 11, 2007, USCIS issued the Interoffice Memorandum Processing of Applications for Ancillary Benefits Involving Aliens Who Pose National Security or Egregious Public Safety Concerns, 61 which clarified PM 110 as it related to primary and ancillary benefit requests. The Interoffice Memorandum expressly stated, “The adjudication of ancillary applications and petitions shall be suspended for 60 days or until ICE provides notification of its intended action(s) on the primary applicant, whichever is earlier.” In fact, the Interoffice Memorandum added another population of cases to the mix as well, by requiring that any application for an ancillary benefit filed by an alien who poses a national security concern would now be processed in a similar manner as an egregious public safety case. 62 As such, for any employment authorization application filed by a pending asylum applicant with potential national security or public safety derogatory information, officers could not comply with both the 30-day EAD processing timeframe and USCIS policy with respect to ICE referrals

processing timeframe as set forth in 8 CFR 208.7(a)(1), and ordered USCIS to submit status reports every six months regarding the rate of compliance with the 30-day EAD processing timeframe. 69 USCIS still submits status reports in compliance with the court order as of the publication of this NPRM. 70

65 See USCIS, “USCIS Increases Validity of Work Permits to Two Years for Asylum Applicants, U.S. Citizenship and Immigration Services” (Oct. 6, 2016), https://www.uscis.gov/archive/uscis-increases-validity-of-work-permits-to-two-years-for-asylum-applicants.

66 See Form M-1162, “Optional Checklist for Form I-765(c)(8) Filings,” Asylum Applications (With a Pending Asylum Application) Who Filed for Asylum on or after January 4, 1995, (July 17, 2017), https://www.uscis.gov/archive/optional-checklist-for-form-i-765-c8-filings.

67 See Rosario, 365 F.Supp.3d at 1160 (citing to 62 FR at 10318).

68 See Rosario, 365 F.Supp.3d at 1160 (citing to 50 FR at 14780).

69 See Rosario, 365 F.Supp.3d at 1163.

70 See generally, USCIS, “Rosario Class Action,” https://www.uscis.gov/laws-and-policy/other-resources/class-action-settlement-notices-and-agreements/rosario-class-action (last updated Sept. 19, 2022).

Subsequent Regulatory Efforts and Litigation.

More recently, there have been multiple efforts to reform the existing system, with the intent of relieving the agency of the burden of adjudicating (c)(8) EADs within 30 days and diminishing the incentive to file frivolous, fraudulent, or otherwise meritless affirmative asylum applications. In recent years, DHS published two regulations aimed at reforming the existing system and accomplishing those goals

EAD, and imposing other eligibility requirements. Id. In January 2018, prior to the promulgation of these rules, the affirmative asylum backlog stood at approximately 311,000 pending cases. 71 By the end of FY 2022, the backlog had nearly doubled to approximately 625,000 affirmative asylum applications, and by the end of FY 2023, had tripled to more than 1 million pending affirmative asylum cases. 72 This drastic increase in the affirmative asylum backlog highlights the dire situation USCIS finds itself in and the urgent need for reform of the existing regulations and process.

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

72 Id.

Litigation followed the publication of these two rules (“2020 Asylum EAD Rules”), including CASA 73 in the U.S. District Court for the District of Maryland, and Asylumworks 74 in the U.S. District Court for the District of Columbia. On September 11, 2020, the court in CASA imposed a preliminary injunction requiring that USCIS not apply the 2020 Asylum EAD Rules to members of CASA and Asylum Seeker Advocacy Project (ASAP) organizations. 75 The CASA preliminary injunction applying only to members of the CASA and ASAP created a bifurcated and operationally challenging application of the 2020 asylum rules in that the rules were enjoined from applying to organizational members while continuing to apply to non-member applicants. The CASA court made a finding that was significant to this proposed rulemaking, when the court determined the elimination of the 30-day Asylum EAD clock (“Timeline Repeal Rule”) was arbitrary and capricious for two different reasons

enging application of the 2020 asylum rules in that the rules were enjoined from applying to organizational members while continuing to apply to non-member applicants. The CASA court made a finding that was significant to this proposed rulemaking, when the court determined the elimination of the 30-day Asylum EAD clock (“Timeline Repeal Rule”) was arbitrary and capricious for two different reasons. Specifically, the court found, first, that USCIS' rationale for elimination of the 30-day processing timeframe belied the evidence in the record and, second, that USCIS' responses to public comments were conclusory and reflected that the agency did not consider important policy alternatives ( e.g., imposing a longer processing timeframe). 76 Specifically, the court found, “But rather than giving adequate consideration to this important alternative, the agency provided a half-baked and internally contradictory explanation for rejecting it. Its rationale does not pass muster.” 77 Relying on Rosario, the court noted “While the agency's difficulty in complying with the 30-day deadline supports extending the timeline, it hardly explains why there should be no timeline at all.” 78 In this proposed rule, DHS seeks to

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

73 See CASA de Maryland, Inc. v. Wolf, 486 F. Supp. 3d 928 (D. Md. 2020).

74 Asylumworks v. Mayorkas, 590 F. Supp. 3d 11 (D.D.C. Feb. 7, 2022).

75 CASA, 486 F. Supp. 3d at 973-74.

76 See id. at 961-63.

77 Id. at 963.

78 Id.

pp. 3d at 973-74.

76 See id. at 961-63.

77 Id. at 963.

78 Id.

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

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

As a result of the Asylumworks court order, since February 7, 2022, USCIS has been required to process all initial (c)(8) EAD applications within 30 days of filing. While the court ordered a return to a regulatory requirement that had existed until 2020, the burden created by the order was significant and continues to impact overall EAD processing due to the surge in (c)(8) EAD applications. Following the Asylumworks vacatur, at the end of February 2022, there were 93,639 pending EAD applications to which the 30-day processing timeframe requirement applied, including those aliens who were CASA or ASAP members who already benefited from the 30-day processing timeframe and those who were not previously subject to the CASA injunction and for whom USCIS was not subject to a processing timeframe prior to the vacatur

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

81 See USCIS, “USCIS Increases Validity of Work Permits to Two Years for Asylum Applicants, U.S. Citizenship and Immigration Services” (Oct. 6, 2016), https://www.uscis.gov/archive/uscis-increases-validity-of-work-permits-to-two-years-for-asylum-applicants.

82 See Rosario, 365 F.Supp.3d at 1158.

83 Id.

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

84 USCIS National Production Dataset (NPD), May 27, 2025.

85 Id; USCIS OPQ Data, “ I-765, Application for Employment Authorization, C08 Eligibility Category, Receipts from August 1, 2024-July 31, 2025” (Aug

before reaching a high of 152,341 in January 2025. 85 Since that time, initial EAD (c)(8) EAD receipts have somewhat decreased over recent months, but rebounded to 153,888 in July 2025. 86

84 USCIS National Production Dataset (NPD), May 27, 2025.

85 Id; USCIS OPQ Data, “ I-765, Application for Employment Authorization, C08 Eligibility Category, Receipts from August 1, 2024-July 31, 2025” (Aug. 26, 2025).

86 Id.

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

87 See also 87 FR 26614 (May 4, 2022) (temporary final rule on this same topic); 89 FR 24628, 24634 (Apr. 8, 2024) (same)

cessing times. 89 FR 101208 (Dec. 13, 2024). 87 While this rule extended authorization periods for a range of EAD categories, it applied to (c)(8) applicants, and DHS discussed the surge in (c)(8) applications as part of the support for that rule. See, e.g., id. at 101220. 88

87 See also 87 FR 26614 (May 4, 2022) (temporary final rule on this same topic); 89 FR 24628, 24634 (Apr. 8, 2024) (same).

88 On October 30, 2025, DHS ended the practice of automatically extending the validity period for EADs in certain categories, including aliens with pending asylum applications. 90 FR 48799 (Oct. 30, 2025). DHS explained that this change was designed to ensure complete and thorough vetting of all EAD applicants and that USCIS only issues EADs to aliens who are in fact eligible. 90 FR 48807-08.

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

which they suspected fraud.” 93

89 See generally, DOJ, Press Release, “Brooklyn Attorneys Sentenced For Asylum Fraud Scheme”, Press Release, “SoCal Immigration Consultants Sentenced to Prison in Scheme That Filed Bogus Asylum Applications for Hundreds of Chinese Nationals” (May 6, 2014), https://www.ice.gov/news/releases/socal-immigration-consultants-sentenced-prison-scheme-filed-bogus-asylum-applications; DOJ, Press Release, “Three Defendants Sentenced in Manhattan Federal Court for Roles in Immigration Asylum Fraud Scheme” (Mar. 14, 2014), https://archives.fbi.gov/archives/newyork/press-releases/2014/three-defendants-sentenced-in-manhattan-federal-court-for-roles-in-immigration-asylum-fraud-scheme; DOJ, Press Release, “Florida Resident Charged in Scheme to Submit Fraudulent Asylum Applications” (Jan. 24, 2025), https://www.justice.gov/usao-ndca/pr/florida-resident-charged-scheme-submit-fraudulent-asylum-applications; DOJ, Press Release, “Executives of Immigration Services Company Charged in Scheme to Submit Fraudulent Asylum Applications” (Oct. 11, 2024), https://www.justice.gov/usao-ndca/pr/executives-immigration-services-company-charged-scheme-submit-fraudulent-asylum; DOJ, Press Release, “Twenty-Six Individuals, Including Six Lawyers, Charged in Manhattan Federal Court with Participating in Immigration Fraud Schemes Involving Hundreds of Fraudulent Asylum Applications” (Dec. 18, 2012), https://archives.fbi.gov/archives/newyork/press-releases/2012/twenty-six-individuals-including-six-lawyers-charged-in-manhattan-federal-court-with-participating-in-immigration-fraud-schemes-involving-hundreds-of-fraudulent-asylum-applications; DOJ, Press Release, “Middlesex County, New Jersey, Man Admits Attempting to Obtain United States Citizenship by Fraud” (Apr. 8, 2019), https://www.justice.gov/usao-nj/pr/middlesex-county-new-jersey-man-admits-attempting-obtain-united-states-citizenship-fraud; DOJ, Press Release, “Broward Woman Charged in Scheme to Submit Fraudulent Asylum Applications” (Mar

dreds-of-fraudulent-asylum-applications; DOJ, Press Release, “Middlesex County, New Jersey, Man Admits Attempting to Obtain United States Citizenship by Fraud” (Apr. 8, 2019), https://www.justice.gov/usao-nj/pr/middlesex-county-new-jersey-man-admits-attempting-obtain-united-states-citizenship-fraud; DOJ, Press Release, “Broward Woman Charged in Scheme to Submit Fraudulent Asylum Applications” (Mar. 12, 2025), https://www.justice.gov/usao-sdfl/pr/broward-woman-charged-scheme-submit-fraudulent-asylum-applications.

90 See generally, USCIS, Press Release, “Phony Immigration Attorney Who Filed Hundreds of Fraudulent Asylum Applications Sentenced to More Than 20 Years in Federal Prison” (Apr. 13, 2021), https://www.uscis.gov/archive/phony-immigration-attorney-who-filed-hundreds-of-fraudulent-asylum-applications-sentenced-to-more; DOJ, Press Release, “Thai National Admits to Running Immigration Fraud Scheme” (Feb. 7, 2017), https://www.justice.gov/usao-ri/pr/thai-national-admits-running-immigration-fraud-scheme.

91 GAO, Report to Congressional Requesters, “Asylum: Additional Actions Needed to Assess and Address Fraud Risks” (Dec. 2015), https://www.gao.gov/assets/gao-16-50.pdf.

92 GAO, Report to Congressional Requesters, “Asylum: Additional Actions Needed to Assess and Address Fraud Risks” (Dec. 2015), https://www.gao.gov/assets/gao-16-50.pdf.

93 GAO Report, “Asylum: Additional Actions Needed to Assess and Address Fraud Risks” (Dec. 2015), https://www.gao.gov/assets/gao-16-50.pdf.

This is not a new revelation. As the former INS Commissioner noted in 2000 regarding the asylum reforms, “By 1993, the asylum system was in a crisis, having become a magnet for abuse by persons filing applications in order to obtain employment authorization.” 94 Even more telling, during the same period, incentives to abuse the asylum system reemerged as well. The number of EADs approved for aliens with asylum applications pending for more than 180-days increased from 55,000 in FY 2016 to 270,000 in FY 2022

3, the asylum system was in a crisis, having become a magnet for abuse by persons filing applications in order to obtain employment authorization.” 94 Even more telling, during the same period, incentives to abuse the asylum system reemerged as well. The number of EADs approved for aliens with asylum applications pending for more than 180-days increased from 55,000 in FY 2016 to 270,000 in FY 2022. This increase in EAD approvals may suggest that meritless asylum applications, filed for the purpose of obtaining work authorization, have increased alongside asylum application processing times. 95

94 DOJ, News Release “Asylum Reform: Five Years Later” (Feb. 1, 2000), https://www.uscis.gov/sites/default/files/document/news/Asylum.pdf.

95 Doris Meissner, Faye Hipsman, & T. Alexander Aleinikoff, “U.S. Asylum System in Crisis: Charting a Way Forward” Migration Policy Institute, (Sept. 2018).

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

96 USCIS, “Affirmative Asylum Statistics: July, August and September 2014” (Oct

per month and steadily grew until the peak in March 2017. 97 A 2020 Citizenship and Immigration Services Ombudsman's Report found “Total apprehensions of inadmissible aliens at the Southern border, after reaching an all-time high of 1.6 million in FY 2000, rose again from 444,859 in FY 2015 to 977,509 in FY 2019.” 98

96 USCIS, “Affirmative Asylum Statistics: July, August and September 2014” (Oct. 28, 2014), https://www.uscis.gov/sites/default/files/USCIS/Outreach/Upcoming%20National%20Engagements/PED_Affirmative_Asylum_July_August_September_2014.pdf.

97 Id.

98 CIS Ombudsman's Report 2020, at 43.

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

99 USCIS, “USCIS Temporarily Closing Offices to the Public March 18-April 1” (Mar. 17, 2020), https://www.uscis.gov/archive/uscis-temporarily-closing-offices-to-the-public-march-18-april-1.

100 CIS Ombudsman's Report 2020, at 47.

USCIS policy and processing changes also led to growth in the backlog. INS developed “Last-in, First-out” (LIFO) processing in the mid-1990s. The LIFO system is designed to allow employment authorization for asylum seekers while discouraging aliens from potentially filing meritless asylum applications to take advantage of the backlog to obtain employment authorization during the period in which their cases are pending in the backlog. In other words, by giving priority to the newest cases, the intent was that aliens who may have filed asylum applications solely to obtain work authorization would have their cases heard more quickly and denied during the waiting period, meaning that any efforts to file solely to obtain work authorization would be fruitless

IS received 143,000 asylum applications (a 402% increase). 106

101 USCIS, Press Release “USCIS Processing of Asylum Cases” (Nov. 6, 2020), https://www.uscis.gov/archive/uscis-processing-of-asylum-cases.

102 Id.

103 USCIS, Press Release, “USCIS to Take Action to Address Asylum Backlog” (Jan. 31, 2018); https://www.uscis.gov/news/news-releases/uscis-take-action-address-asylum-backlog.

104 Id.

105 Doris Meissner, Faye Hipsman, & T. Alexander Aleinikoff, “U.S. Asylum System in Crisis: Charting a Way Forward” Migration Policy Institute, (Sept. 2018).

106 Id.

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

107 It must be noted that not all of these Fraud Found SOFs related to the asylum application, however this is to be expected. Sometimes fraud and other irregularities are not discovered until after an immigration benefit is approved and this is not exclusive to asylum

for asylum, and the attorney is acting solely for the purpose of having the alien deliberately placed in removal proceedings. 112 The AILA guidance notes that, depending on the facts of a particular case, an attorney's conduct could be considered frivolous under the

111 USCIS FDNS Systems and Integration Division Data, “DOJ EOIR Disbarred Attorney Match to Global Asylum Receipts” (May 28, 2025).

112 Matthew Blaisdell and Michele Carney, “Ethical Considerations Related to Affirmatively Filing an Application for Asylum for the Purpose of Applying for Cancellation of Removal and Adjustment of Status for a Nonpermanent Resident” American Immigration Lawyers Association, (updated July 31, 2020) https://www.aila.org/library/submitting-an-affirmative-asylum-app-ethical-qs.

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

However, these cases with “Fraud Found” SOFs, or other fraud possibilities relating to aliens or attorneys/representatives, are not the only concern. One of the purposes of this rule is to combat “frivolous, fraudulent, and meritless” asylum applications and their associated applications for employment authorization, but the FDNS “Fraud Found” data arguably only accounts for the “fraudulent” applications and likely not the “frivolous” or “meritless” applications. When FDNS finds fraud after an administrative investigation, the record contains sufficient evidence to conclude there was a knowingly false representation of a material fact with the intent to deceive

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

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

USCIS data from FY2015 to present helps scope this problem and reveals some startling trends. Of course, asylum applications have risen incredibly since FY2015, when USCIS received 83,463 new asylum applications and the number of pending cases was 118,217 cases. 115 In FY 2017, the new receipts reached 142,254 with a pending caseload of 306,078. 116 Then, receipts in FY 2018 began to drop for four consecutive years until 2021, when receipts were 65,518 with a pending caseload of 452,181. 117 In FY2022, new asylum receipts jumped to 247,790 with a pending caseload of 664,290. 118 In FY2023, new asylum receipts jumped again to 464,398, with a pending caseload of 1,081,440

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

115 USCIS OPQ DATA, “By Fiscal Year, Data Type, and Deny/Referral Reasons” (May 22, 2025).

116 Id.

117 Id.

118 Id.

119 Id.

120 Id.

121 Id.

EP23FE26.017

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

. However, denials and referrals followed a different pattern. Since 2015, denials and referrals reached a high of 42,213 in FY2019 and a low of 5,709 in FY2024. Table 3 presents data applicable to Form I-589, Application for Asylum and for Withholding of Removal (principals only), by FY, from FY2015-2025 (through May 22, 2025), applicable to denials/referrals with a previously approved (c)(8) EAD.

EP23FE26.018

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

122 USCIS OPQ DATA, “ Form I-589, Application for Asylum and for Withholding of Removal (Principals only), Pending/Denial/Referral with a previously approved I-765(c)(8) by FY for FY2015-2025 (through May 22, 2025)”.

123 Id.

124 Id.

125 Id.

At the simplest level, if there were no asylum backlog and each asylum application received was adjudicated within 180 days, none of those aliens whose asylum applications were denied would have been granted an employment authorization. Looking at the percentages, it is clear there is an increasing correlation between asylum denials and previously approved (c)(8) EADs. Not only do these data serve as evidence that current asylum processing is not functioning properly, but it is also evidence that the processing is worsening

of those aliens whose asylum applications were denied would have been granted an employment authorization. Looking at the percentages, it is clear there is an increasing correlation between asylum denials and previously approved (c)(8) EADs. Not only do these data serve as evidence that current asylum processing is not functioning properly, but it is also evidence that the processing is worsening. The INS's original intention of discouraging aliens from filing meritless asylum claims cannot be fulfilled given the backlog volume is at an all-time high and nearly 90% of asylum denials last FY had a previously approved (c)(8) EAD. USCIS notes that it is not necessarily assigning, and does not need to assign, any fraudulent or bad intent to this population. These are simply cases where the alien was ultimately found ineligible for asylum, but, due to current agency regulations, policies, and processes, was able to derive employment authorization despite asylum ineligibility.

Despite the relative lack in changes for the adjudication of EADs for aliens with pending asylum applications since the 1994 regulatory reform, the number of asylum applications, and with it the number of requests for employment authorization have increased exponentially, fueling a massive asylum backlog. In FY 1994, the year the then-INS promulgated the requirement that employment authorizations for aliens with pending asylum applications be adjudicated within 30 days, the INS received 144,577 applications for affirmative asylum. 126 In FY 1996, the year IIRIRA provided that, in the absence of exceptional circumstances, final administrative adjudications of asylum applications “shall” be completed within 180 days after the date applications are filed, 127 the INS received 107,130 applications for affirmative asylum and had a backlog of 453,580 pending at the end of the fiscal year. 128 In FY 2024, USCIS received more than 419,000 applications for affirmative asylum, and adjudicated or closed more than 126,000 affirmative asylum applications

ations of asylum applications “shall” be completed within 180 days after the date applications are filed, 127 the INS received 107,130 applications for affirmative asylum and had a backlog of 453,580 pending at the end of the fiscal year. 128 In FY 2024, USCIS received more than 419,000 applications for affirmative asylum, and adjudicated or closed more than 126,000 affirmative asylum applications. 129 At the end of FY 2024, the number of affirmative asylum applications pending with USCIS grew to more than 1.35 million. 130

126 INS, DOJ, “1994 Statistical Yearbook of the Immigration and Naturalization Service” (Feb. 1996), p. 83.

127 IIRIRA sec. 604, Public Law 104-208, 110 Stat. 3009, 3009-694, codified at INA sec. 208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii).

128 INS, DOJ, “1996 Statistical Yearbook of the Immigration and Naturalization Service” (Oct. 1997), p. 90-91.

129 USCIS, “All USCIS Application Petition Form Types (Fiscal Year 2024, Quarter 4)” (Dec. 18, 2024), https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q4.xlsx.

130 USCIS, “All USCIS Application Petition Form Types (Fiscal Year 2024, Quarter 4)” (Dec. 18, 2024), https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q4.xlsx.

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

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

recognizes the importance of U.S workers as well. DHS notes that when adjudicating certain employment-based visas, statutory authorities mandate that such alien workers not displace qualified, available American workers who are capable of performing such services or labor, and similarly that such alien employment not adversely affect the wages and working conditions of workers in the United States. 133 DHS is in no way equating asylum applicants with temporary nonagricultural workers; rather DHS merely notes the mandatory consideration for American workers in certain visa programs. DHS recognizes there is historical precedent to consider American workers when DHS exercises discretion to determine the availability and scope of employment authorization for aliens.

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

For example, in 1974 the former INS Commissioner Leonard F. Chapman, Jr. announced a significant change to the summer program policy for foreign students. 134 Under the new policy, foreign students seeking summer employment had to apply and obtain permission from the INS. 135 In changing the long-standing student employment policy, the INS recognized the foreign policy benefits for young aliens studying in the United States, but determined that the protection of job opportunities for American workers should be the ultimate consideration. 136 The following year, INS General Counsel Sam Bernsen gave a presentation detailing this INS' decision further

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

140 See https://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/NIVClassIssuedDetailed/NIVClassIssued-DetailedFY1987-1991.pdf.

141 See GAO, “Controls Over Foreign Students in U.S. Postsecondary Institutions Are Still Ineffective” (Mar. 10, 1983), https://www.gao.gov/products/hrd-83-27.

142 Id.

143 USCIS, “All USCIS Application Petition Form Types (Fiscal Year 2024, Quarter 4)” (Dec. 18, 2024), https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q4.xlsx.

Building an Efficient Asylum System

As the INS did in 1994, DHS is implementing limitations on the availability of employment authorization and more stringent requirements for eligibility for employment authorization, in order to protect U.S. national security and public safety, better manage the asylum caseload, and disincentivize aliens who do not have meritorious asylum claims from exploiting the asylum program to seek economic opportunity in the United States. 59 FR 14779 (Mar. 30, 1994); 59 FR 62284 (Dec. 5, 1994).

As it currently functions, the asylum system is overwhelmed, unresponsive, and vulnerable to abuse

to protect U.S. national security and public safety, better manage the asylum caseload, and disincentivize aliens who do not have meritorious asylum claims from exploiting the asylum program to seek economic opportunity in the United States. 59 FR 14779 (Mar. 30, 1994); 59 FR 62284 (Dec. 5, 1994).

As it currently functions, the asylum system is overwhelmed, unresponsive, and vulnerable to abuse. Congress gave the Executive Branch the discretion to make employment authorization available to asylum applicants by regulation. 144 Employment authorization for aliens seeking asylum is not an entitlement under statute. DHS believes that this rule is key to disincentivizing aliens from using asylum primarily as a path to seek employment authorization in the United States and to ensuring more timely processing of asylum applications. By allowing DHS to focus resources on reducing the asylum backlog, ensuring that asylum applications are processed in a fair and timely manner, and divorcing the filing of an asylum application with a near automatic grant

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

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

DHS is now focusing on this regulation after years of different efforts to address the building backlog and significant program integrity concerns within the asylum program. The number of asylum officers USCIS employs increased from 349 in 2015 to 979 in 2025, but the asylum backlog has increased exponentially in spite of this. In the last decade, USCIS has built or expanded asylum offices in 11 cities to provide dedicated workspaces to accommodate the rapid growth in staffing. 145 USCIS has also implemented a number of operational changes designed to realize efficiency gains. These changes include post-interview case processing goals, the development of new technology, and the expansion of digitization to modernize case management

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

145 USCIS, DHS, “Asylum Application Processing Fiscal Year 2023” (Nov. 1, 2023), https://www.dhs.gov/sites/default/files/2024-01/2023_1101_uscis_asylum_application_processing_fy2023.pdf.

146 Id.

147 DHS Office of Inspector General, “USCIS Faces Challenges Meeting Statutory Timelines and Reducing Its Backlog of Affirmative Asylum Claims” (July 3, 2024), https://www.oig.dhs.gov/sites/default/files/assets/2024-07/OIG-24-36-Jul24.pdf.

148 Letter from Representative Raúl M. Grijalva (July 11, 2024) and DHS response (Aug

ese caseloads, reducing the number of asylum officers available to conduct affirmative asylum interviews. 153 In 2023, USCIS also trained more than 1,000 employees from across USCIS to assist with the credible fear workload as needed. 154 This diversion of resources to screening interviews further prevented USCIS from making meaningful progress to reduce or eliminate the affirmative asylum backlog. As affirmative asylum cases slowly wind their way through the immigration system, aliens continue to receive EADs, even though many or most will be found ineligible for asylum. 155

149 Noah Schofield and Amanda Yap, Office of Homeland Security Statistics, “Asylees: 2023” (Oct. 2024), https://ohss.dhs.gov/sites/default/files/2024-10/2024_1002_ohss_asylees_fy2023.pdf.

150 Id.

151 Office of Inspector General, DHS, “USCIS Faces Challenges Meeting Statutory Timelines and Reducing Its Backlog of Affirmative Asylum Claims” (July 3, 2024), https://www.oig.dhs.gov/sites/default/files/assets/2024-07/OIG-24-36-Jul24.pdf.

152 See 8 CFR 208.31, 8 CFR 235.3(b)(4). Any alien who indicates a fear of persecution or torture, a fear of return, or an intention to apply for asylum during the course of the expedited removal process is referred to an asylum officer for an interview to determine whether the alien has a credible fear of persecution or torture in the country of return. Aliens with prior removal orders for illegal entry or who are issued an administrative removal order for having been convicted of an aggravated felony may be referred to the asylum officer for a determination of whether the alien has a reasonable fear of persecution or torture. These screening interviews are required to be conducted by USCIS within a designated timeframe.

153 See USCIS, DHS, “Asylum Application Processing Fiscal Year 2023 Report to Congress” at 4, (Nov. 1, 2023), https://edit.dhs.gov/sites/default/files/2024-01/2023_1101_uscis_asylum_application_processing_fy2023.pdf

a determination of whether the alien has a reasonable fear of persecution or torture. These screening interviews are required to be conducted by USCIS within a designated timeframe.

154 See email entitled “Message from the Director—USCIS to Support Credible Fear Screening”, April 25, 2023, located in the administrative record.

155 EOIR, Asylum Decisions (Apr.4, 2025), https://www.justice.gov/eoir/media/1344851/dl?inline.

Another consequence of the asylum backlog is that many aliens who will ultimately be denied asylum are able to remain in the United States and obtain employment authorization. As discussed above, DHS believes that imposing stricter requirements for (c)(8) EAD eligibility will disincentivize some economic migrants and others who would ultimately not qualify for asylum from applying and possibly from making the arduous journey to the United States. For example, in addition to the current regulatory language that excludes an alien with an aggravated felony conviction as described under INA 101(a)(43), DHS proposes to codify in regulation that it will exclude from (c)(8) EAD eligibility any alien where there is reason to believe that the alien may be barred from a grant of asylum due to one of the criminal bars to asylum under sections 208(b)(2)(A)(ii)-(iii). These are also grounds for denial of the alien's underlying asylum application. See INA 208(b)(2) and 8 U.S.C. 1158(b)(2). This would be a sensible and logical change. Further, the change would increase program integrity by ensuring that an alien who is statutorily ineligible for asylum cannot file a frivolous or meritless asylum application in order to receive a (c)(8) EAD and take advantage of current USCIS processing backlogs to obtain employment authorization

application. See INA 208(b)(2) and 8 U.S.C. 1158(b)(2). This would be a sensible and logical change. Further, the change would increase program integrity by ensuring that an alien who is statutorily ineligible for asylum cannot file a frivolous or meritless asylum application in order to receive a (c)(8) EAD and take advantage of current USCIS processing backlogs to obtain employment authorization. Rather, under these proposed changes, aliens who are ineligible for asylum would likewise be ineligible for a “pending asylum” EAD. As detailed above, the 1994 INS's final regulatory asylum reform made clear, “[t]his rule will discourage applicants from filing meritless claims solely as a means to obtain employment authorization. . . . When the system is fully operational, asylum officers are expected to grant or refer affirmative claims within about 60 days. . . . All applicants could have work authorization after 180 days, unless their claims have been denied by an Immigration Judge.” 59 FR at 62290-91.

This is a significant point that is frequently lost given the current size of the asylum and asylum EAD backlogs: the INS designed the current regulatory landscape to be a means of primarily adjudicating the underlying asylum application. The intent was to give INS—today USCIS—180 days to

adjudicate the underlying asylum application and, if that could not be accomplished, then the alien was not harmed because they were eligible for employment authorization after 180 days. USCIS aimed to adjudicate referrals of asylum applications within 60 days from the date a complete asylum application was filed with USCIS, which would then leave 120 remaining days for EOIR to complete processing of the referred asylum application

ith INA 208(d)(5)(A)(iii) is extremely difficult. In FY2022, FY2023, and FY2024, the average processing time for asylum applications that received a final decision (approval, administrative closure, or denial/referral) was 35.5 months, 25.0 months, and 22.8 months, respectively. 157 The processing times far exceed the 180-day statutory requirement, but are nevertheless trending the right direction. However, DHS believes that the level of effort currently going into asylum and related EAD adjudications is not sustainable, which is one reason DHS needs these proposed regulatory changes. If USCIS were no longer governed by the 30-day processing timeframe, it would permit the agency to focus resources on the pending asylum applications, which in and of itself would reduce (c)(8) EAD application filings. These cases drain agency resources from other adjudications. Regardless of the backlog, the age of cases, or any asylum application processing changes, under 8 CFR 208.7(a)(1) USCIS is currently still required to adjudicate pending asylum applications for employment authorization within 30 days of filing. The changes proposed in this rule, specifically the pausing of (c)(8) EAD application acceptances and the 365-day wait to file an application for employment authorization, would allow USCIS to focus more on the underlying asylum applications—just as the INS attempted to do with the 1994 regulatory reforms.

157 USCIS OPQ DATA, “I-589 Processing Time With and Without Admin Closed by Fiscal Year (FY2022-2025) (May 27, 2025). DHS notes these processing times are under LIFO processing so these are still the “newer” cases being adjudicated. Further, these adjudications are not reducing the overall size of the asylum backlog

ization while waiting for their asylum application to be denied. This, in turn, incentivizes more aliens to file frivolous, fraudulent, or meritless asylum applications since they will obtain employment authorization 180 days after filing the asylum application—even if statutorily ineligible for asylum—and the alien's asylum application will likely remain pending for years given the asylum backlog. Previously, neither form had an associated filing fee, 159 so there was no downside to filing this way because, even if USCIS denied the asylum application years later, the alien was employment authorized during that time. DHS's proposed rulemaking attempts to align the eligibility requirements and end the incentive to abuse the asylum system. Under this proposal, aliens would still apply for employment authorization but DHS would, as part of the screening and vetting of the alien as part of the (c)(8) EAD adjudication, essentially determine if the alien was statutorily or regulatorily ineligible or barred from asylum approval and, if so, DHS would deny the application for employment authorization.

158 This is not the only grounds for denial, rather it renders the alien ineligible. As stated above, the alien can be denied for filing the application for employment authorization before 150 days have passed since filing the asylum application. 8 CFR 208.7(a)(1).

159 See USCIS, “G-1055, Fee Schedule,” (Apr. 18, 2025), https://www.uscis.gov/g-1055.

The need to determine whether the alien applying for employment authorization is also not ineligible for asylum justifies an additional and related change being made in this rule as well, the mandatory collection of biometrics for both initial and renewal (c)(8) EAD applications and the requirement that applicants for an EAD submit all records of charges, arrests, and convictions as part of their EAD application

rting the information. See generally National Crime Prevention and Privacy Compact, 34 U.S.C. 40311-40316 (formerly cited as 42 U.S.C. 14611-14616), including the definitions of “party state” and “nonparty state” found therein.

DHS believes the provisions of this proposed rule will enable meritorious applications to be granted sooner and meritless applications to be referred or

denied sooner. DHS recognizes that these reforms will apply equally to aliens with meritorious and meritless asylum claims and that either population may experience some degree of economic hardship as a result of heightened requirements for an EAD, the extended waiting period, and the pauses in USCIS' acceptance of EAD applications from asylum applicants. DHS also recognizes that some aliens whose asylum applications would have been found meritorious— i.e., those who would be able to show a well-founded fear of persecution in their country of nationality (or last habitual residence) on account of a protected ground—may abandon their applications or decide not to file applications and forego the protection that asylum would provide because they would not be able to support themselves while their asylum application is adjudicated. DHS recognizes that extending the processing time for employment authorization may also factor into a potentially meritorious applicant's decision-making process before applying for asylum. Due to this rule's proposed increased waiting periods before an alien may receive employment authorization, there may be aliens with potentially meritorious asylum claims who instead return to a country where they may fear harm

at extending the processing time for employment authorization may also factor into a potentially meritorious applicant's decision-making process before applying for asylum. Due to this rule's proposed increased waiting periods before an alien may receive employment authorization, there may be aliens with potentially meritorious asylum claims who instead return to a country where they may fear harm. DHS has seriously considered the potential harm to this population and has determined that the benefits of this rule outweigh these concerns: increasing program integrity, focusing USCIS resources on the underlying asylum backlog, ensuring aggravated felons and criminal aliens are not granted work authorization, biometrically verifying the identity of all (c)(8) EAD applicants and identifying any criminal history, if applicable, and disincentivizing asylum as a means to file a frivolous, fraudulent, or meritless application solely to obtain work authorization. Objectively speaking, the asylum system is overwhelmed and in need of additional reforms. The backlog of asylum cases weakens the integrity of the system, allowing thousands of non-meritorious cases to languish and obstructing the agency from addressing potential public safety and national security concerns until years down the road when the cases are finally adjudicated. The security of the United States and the integrity of our immigration processes outweighs the potential harm to a subset of the asylum applicant population. DHS has also considered potential hardship caused by a lengthier wait before filing an application for employment authorization or receiving employment authorization, which may lead some aliens to attempt to work without authorization

icated. The security of the United States and the integrity of our immigration processes outweighs the potential harm to a subset of the asylum applicant population. DHS has also considered potential hardship caused by a lengthier wait before filing an application for employment authorization or receiving employment authorization, which may lead some aliens to attempt to work without authorization. In order to minimize unauthorized employment, DHS has instituted certain compliance measures through the Immigration Reform and Control Act (IRCA), which requires employers to verify the identity and employment eligibility of their employees and sets forth criminal and civil sanctions for employment-related violations. See Public Law 99-603, 100 Stat. 3445 (1986). Additionally, section 274A(b) of the INA, 8 U.S.C. 1324a(b), requires employers to verify the identity and employment eligibility of all aliens hired in the United States. The Employment Eligibility Verification form (Form I-9) is used by employers to document this verification. Employers who fail to properly complete Forms I-9 are subject to civil money penalties for paperwork violations. 161 This process serves to protect the public and aliens who may attempt to work without authorization, which makes those aliens vulnerable to exploitation by their employers. Aliens who still choose to engage in unauthorized employment should be aware that this may render them removable and ineligible for future benefits such as adjustment of status. 162 Finally, DHS acknowledges there may be unknown impacts to the above populations, but DHS's responsibility to safeguarding national security and public safety takes precedence and justifies the approach proposed here.

161 See INA sec. 274A(e)(5), 8 U.S.C. 1324a(e)(5).

162 See, e.g., INA sec. 237(a)(1)(C), 8 U.S.C. 1227(a)(1)(C); 8 CFR 214.1(e); INA sec. 274A, 8 U.S.C. 1324a.

DHS's ultimate goal is to strengthen the benefit integrity of the asylum process and help ensure that the system is not being exploited

ing national security and public safety takes precedence and justifies the approach proposed here.

161 See INA sec. 274A(e)(5), 8 U.S.C. 1324a(e)(5).

162 See, e.g., INA sec. 237(a)(1)(C), 8 U.S.C. 1227(a)(1)(C); 8 CFR 214.1(e); INA sec. 274A, 8 U.S.C. 1324a.

DHS's ultimate goal is to strengthen the benefit integrity of the asylum process and help ensure that the system is not being exploited. DHS has determined that the current model for obtaining employment authorization as an asylum applicant is no longer practicable, but also inconsistent with the original intent of the asylum system. The intent has always been that once an asylum claim is filed, a decision is made in a timely manner so that there is no need for an employment authorization document until the alien has received the benefit. DHS has determined it is reasonable to require additional time and security requirements on asylum applicants before they may apply for and receive an EAD. The urgency to protect national security, public safety, and maintain the integrity of the U.S. asylum and immigration system outweighs the hardship that may be imposed by an additional waiting period the meritorious asylum applicant population would experience prior to receiving an EAD.

1. Other Regulatory Alternatives Considered

DHS considered several alternatives before deciding on the changes ultimately proposed in this rule and also recently implemented new filing fees that impact both asylum applications and pending asylum application-based applications for employment authorization.

On July 22, 2025, USCIS published the H.R.-1 Federal Register Notice to inform the public of a new series of fees for various immigration-related forms established in the OBBBA

s.gov/document/USCIS-2021-0010-0033 .

166 See USCIS, Increase of the Automatic Extension Period of Employment Authorization Final Rule's Background section detailing efforts to address EAD backlogs over the last 5 years. Section B.4 acknowledges asylum backlogs grew in FY23 despite USCIS's best efforts, and that this further contributed to an unsustainable quantity of (c)(8) EAD renewals in FY24. https://www.federalregister.gov/documents/2024/12/13/2024-28584/increase-of-the-automatic-extension-period-of-employment-authorization-and-documentation-for-certain .

One alternative DHS considered and evaluated was the possibility of re-publishing the elimination of the 30-day EAD processing timeframe rule (“Timeline Repeal Rule”) from 2020, but with updated filing data, more recent economic analysis, and additional justification for the proposed changes. DHS recognizes that any such changes are within the Secretary's authority under INA 274A(h)(3)(B) (8 U.S.C. 1324a(h)(3)(B)), INA 208(d)(1) and (d)(5)(B) (8 U.S.C. 1158(d)(1) and (d)(5)(B)), and INA 208(d)(2) (8 U.S.C. 1158(d)(2)). However, DHS is mindful of the CASA de Maryland, Inc. v. Wolf holding that determined the elimination of the 30-day Asylum EAD clock (“Timeline Repeal Rule”) was arbitrary and capricious for multiple different reasons. That court found that USCIS' rationale for elimination of the 30-day processing timeframe belied the evidence in the record and USCIS' responses to public comments were conclusory and reflected that the agency did not consider important policy alternatives. 167 Specifically, the court was not convinced that USCIS considered imposing a longer processing timeframe instead of removing the timeframe altogether

t found that USCIS' rationale for elimination of the 30-day processing timeframe belied the evidence in the record and USCIS' responses to public comments were conclusory and reflected that the agency did not consider important policy alternatives. 167 Specifically, the court was not convinced that USCIS considered imposing a longer processing timeframe instead of removing the timeframe altogether. 168 Despite the fact that DHS still believes there should be no processing timeframe on (c)(8) EADs—just as there are currently no processing timeframes on any other EAD category—DHS was uncertain if a second proposed outright elimination of the (c)(8) EAD processing timeframe would be successful even with updated filing data, more recent economic analysis, additional consideration of alternatives, and additional justifications. A significant amount of work goes into regulatory changes, and DHS would rather not risk another years long effort merely to be subject to adverse court action and, in the end, still be required to adjudicate pending asylum applications and associated employment authorization applications under the current, and flawed, regulatory authorities and timeframes.

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

168 See id.

A second alternative DHS considered and evaluated was extending the waiting period for filing an application for employment authorization based on a pending asylum application from the current 150 days to a significantly longer period, something closer to four or five years. Extending this waiting period would be well within the Secretary's authority under INA 274A(h)(3)(B) (8 U.S.C. 1324a(h)(3)(B)), INA 208(d)(1) and (d)(5)(B) (8 U.S.C. 1158(d)(1) and (d)(5)(B)), and INA 208(d)(2) (8 U.S.C

e backlog for years.

Under such a proposal, with no (c)(8) EAD to apply for, aliens with pending asylum applications would not be employment authorized until USCIS approved the underlying asylum application.

DHS ultimately decided not to pursue such an alternative at this time. First, DHS has already established that the primary problem is the processing of the volume of cases in the backlog. Second, because employment authorization for pending asylum applicants has been available for decades, since prior to the INS's 1994 asylum reform rulemakings, it is not clear at this time whether data exists to support such a change. Moreover, DHS was concerned with the anticipated public comments that did not support such a change. Additionally, DHS believes that the proposed provision of this rule tethering employment authorization to asylum processing times by pausing the acceptance of initial (c)(8) EADs if average asylum processing rises above 180 days for 90 consecutive days would achieve the same positive impact that terminating the (c)(8) EAD category altogether would achieve but through less severe means.

Should this rule prove ineffective or be enjoined, DHS will likely re-evaluate one or more of these alternative options for future asylum applications and their associated employment authorization applications given the ongoing incentive they represent for illegal entry to the United States and abuse of the asylum system to the detriment of meritorious asylum seekers.

D. Background

1. Eligibility for Asylum

Asylum is a discretionary benefit that can be granted by the Secretary or Attorney General if the alien establishes, among other things, that he or she has experienced past persecution or has a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA sec. 208(b)(1), 8 U.S.C. 1158(b)(1) (providing that the Attorney General and Secretary “may” grant asylum to refugees); INA sec. 101(a)(42)(A), 8 U.S.C

ov/humanitarian/refugees-and-asylum/asylum (last updated Jan. 24, 2025).

2. Affirmative vs. Defensive Filings

To request asylum, an alien must file Form I-589, Application for Asylum and for Withholding of Removal, with either USCIS or the immigration court (EOIR). Asylum applications are characterized as “affirmative” or “defensive” based on which agency has jurisdiction over the alien's case. Generally, if an alien is physically present in the United States, not detained, and has not been placed in removal proceedings, the alien files the asylum application with USCIS. These applications are known as “affirmative” filings. If DHS places an alien in removal proceedings, the alien files an application for asylum with an Immigration Judge (IJ). 178 These applications are known as “defensive” filings and include aliens the USCIS asylum officer refers to the IJ for de novo review of their asylum claim. 179

178 Where an asylum application is filed by a UAC, USCIS has initial jurisdiction over that application, even if the alien is in removal proceedings. INA sec. 208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C); William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Public Law 110-457, sec. 235(d)(7), 122 Stat. 5044, 5081.

179 See 8 CFR 208.14(c).

USCIS is responsible for initial adjudication of asylum applications filed by UACs. This is because an asylum application filed by a UAC must be processed according to requirements established in the TVPRA, Public Law 110-457, 122 Stat. 5044, and the settlement agreement in J.O.P. v. U.S. Dept of Homeland Security, 8:19-cv-01944 (D. Md.) (approved Nov. 25, 2024) (J.O.P. Settlement Agreement). The provisions of the TVPRA that apply to UACs took effect on March 23, 2009 and provide USCIS with initial jurisdiction over all asylum applications filed by UACs. Thus, even UACs who have been issued a Notice to Appear in immigration court can have their application for asylum heard by USCIS if they were UACs on the date they first filed for asylum

d Nov. 25, 2024) (J.O.P. Settlement Agreement). The provisions of the TVPRA that apply to UACs took effect on March 23, 2009 and provide USCIS with initial jurisdiction over all asylum applications filed by UACs. Thus, even UACs who have been issued a Notice to Appear in immigration court can have their application for asylum heard by USCIS if they were UACs on the date they first filed for asylum. The TVPRA also provides an opportunity for UACs, who did not previously file for asylum with USCIS and who had a pending claim in immigration court, on appeal to the Board of Immigration Appeals, or in federal court, to have their asylum claim heard and adjudicated by a USCIS Asylum Officer in a non-adversarial setting. 180 Furthermore, under the terms of the J.O.P. Settlement Agreement, USCIS will not rely on any determination by DOJ that an alien is not a UAC. 181 Rather, USCIS exercises initial jurisdiction over the adjudication of the UAC's asylum application and renders its own jurisdictional determination. 182 Therefore, if a UAC's

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

180 William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Public Law 110-457 (Section 235 (d)(7)).

181 J.O.P. v. U.S. Dept of Homeland Security, 8:19-cv-01944, Part III.D. (D. Md.) (approved Nov. 25, 2024), https://www.ice.gov/doclib/legalNotice/jopSettlementAgreement.pdf.

182 J.O.P. v. U.S. Dept of Homeland Security, 8:19-cv-01944, Part III.C.1. (D. Md.) (approved

Nov. 25, 2024), https://www.ice.gov/doclib/legalNotice/jopSettlementAgreement.pdf.

(D. Md.) (approved

Nov. 25, 2024), https://www.ice.gov/doclib/legalNotice/jopSettlementAgreement.pdf.

Aliens who present themselves at a U.S. port of entry (air, sea, or land) are generally deemed applicants for admission. 183 INA sec. 235(a)(1), 8 U.S.C. 1225(a)(1). If an immigration officer determines that an alien is inadmissible under section 212(a)(6)(C) or 212(a)(7) of the Act, 8 U.S.C. 1182(a)(6)(C) or 1182(a)(7), for being in possession of false documents, making false statements, or lacking the required travel documentation, the alien may be placed in expedited removal proceedings under section 235(b)(1) of the Act, 8 U.S.C. 1225(b)(1). Expedited removal may also be applied to certain other aliens who have not been admitted or paroled into the United States and who cannot show that they have been continuously physically present in the United States for the two years prior to the date of determination of inadmissibility. INA sec. 235(b)(1)(A)(iii), 8 U.S.C. 1225(b)(1)(A)(iii). Aliens in expedited removal proceedings who indicate an intention to apply for asylum, express a fear of persecution or torture, or a fear of return to their home country are referred to an asylum officer to determine whether the alien has a credible fear of persecution or torture. 184 INA sec. 235(b)(1), 8 U.S.C. 1225(b)(1); 8 CFR 208.30(b); 8 CFR 235.3(b)(4). If an alien is determined to have a credible fear, “the alien shall be detained for further consideration of the application for asylum.” INA sec. 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii).

183 INA sec. 101(a)(13)(C), 8 U.S.C. 1101(a)(13)(C), provides separate exceptions for when a lawful permanent resident will be considered an alien for admission ( e.g., abandoned residence, continuous absence of 180 days, illegal activity after departure from the United States)

tained for further consideration of the application for asylum.” INA sec. 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii).

184 Except for certain aliens who entered on or after January 20, 2025, who are restricted from invoking provisions of the INA that permit their continued presence in the United States, including but not limited to section 208 of the INA, 8 U.S.C. 1158.

Asylum applications based initially on a positive credible fear determination are under the jurisdiction of EOIR once a Notice to Appear (NTA) is filed with the court and are considered “defensively filed” applications. Similarly, if an alien has a positive credible fear determination, but is released from detention by U.S. Immigration and Customs Enforcement (ICE), the alien is still considered to be under EOIR jurisdiction once the NTA is filed and must file the application for asylum with the court.

3. Employment Authorization for Asylum Applicants

An alien may be authorized for employment in the United States based on the alien's immigration status or other conditions, as established by statute or by regulation. See 8 CFR 274a.12. An asylum applicant is not entitled to employment authorization by statute, but Congress granted the Secretary discretion to authorize employment, through regulations, for these aliens while the asylum application is pending adjudication. See INA sec. 208(d)(2), 8 U.S.C. 1158(d)(2). Aliens seeking employment authorization generally must apply for an EAD by filing Form I-765 with USCIS in accordance with the form instructions, along with any prescribed fee. 8 CFR 274a.13(a). The regulations at 8 CFR 208.7 and 274a.12(c)(8) govern employment authorization for asylum applicants.

hile the asylum application is pending adjudication. See INA sec. 208(d)(2), 8 U.S.C. 1158(d)(2). Aliens seeking employment authorization generally must apply for an EAD by filing Form I-765 with USCIS in accordance with the form instructions, along with any prescribed fee. 8 CFR 274a.13(a). The regulations at 8 CFR 208.7 and 274a.12(c)(8) govern employment authorization for asylum applicants.

a. 180-Day Asylum EAD Clock

Under the current statute and regulations, the Secretary cannot grant employment authorization to an asylum applicant until 180 days after the filing of the asylum application. INA sec. 208(d)(2), 8 U.S.C. 1158(d)(2), 8 CFR 208.7(a)(1). This 180-day period is commonly called the “180-day Asylum EAD Clock.” 185 The 180-day Asylum EAD Clock begins to run after USCIS or EOIR, as applicable, accepts the asylum application for processing. 8 CFR 208.7(a)(1). Existing regulations provide that USCIS or EOIR should return an incomplete application to the alien within 30 days of receipt of the application, but if USCIS or EOIR has not returned the incomplete asylum application within that time, the application is automatically deemed complete. 8 CFR 208.3(c), 1208.3(c)(3) (as effective). 186 Once the asylum application is accepted, the alien must wait 150 days before they may file the application for employment authorization. 8 CFR 208.7(a)(1). USCIS has 30 days from the filing date of the EAD application to adjudicate the application. Id. The 180-day Asylum EAD Clock therefore includes the 150-day waiting period for filing the (c)(8) EAD application and the additional 30-day period that USCIS has to adjudicate the EAD application.

185 USCIS, “The 180-Day Asylum EAD Clock Notice,” https://www.uscis.gov/sites/default/files/document/notices/Applicant-Caused-Delays-in-Adjudications-of-Asylum-Applications-and-Impact-on-Employment-Authorization.pdf (last updated Mar. 2025).

186 Paragraph (c)(3) of 8 CFR 1208.3 was amended by the rule Procedures for Asylum and Withholding of Removal, 85 FR 81698 (Dec

s for his or her biometrics appointment. Id. Similarly, if an alien asks to amend or supplement his or her asylum application, fails to provide a competent interpreter at the asylum interview, or reschedules the asylum interview for a later date, all of these actions will stop the 180-day Asylum EAD Clock, and the clock will not restart until the required action is completed. 187 8 CFR 208.7(a)(2). USCIS will deny an EAD application if the asylum application is still subject to an unresolved alien-caused delay that prevents the alien from accumulating 180 days at the time USCIS adjudicates the initial (c)(8) EAD application. 188 As a result, some asylum applicants may wait longer than 180 days before they can be granted employment authorization.

187 See “The 180-Day Asylum EAD Clock Notice” for additional examples of actions that can affect the 180-day Asylum EAD Clock.

188 See, USCIS, “The 180-Day Asylum EAD Clock Notice,” https://www.uscis.gov/sites/default/files/document/notices/Applicant-Caused-Delays-in-Adjudications-of-Asylum-Applications-and-Impact-on-Employment-Authorization.pdf (last updated Mar. 2025).

b. 30-Day Processing Timeframe

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

processing timeframe in 8 CFR 208.7(a)(1) was established more than 25 years ago, when the former INS adjudicated EAD applications at local INS offices, but EAD applications are now adjudicated at USCIS Service Centers. As a result of numerous factors, including a massive growth in EAD application volume, the need for ASC appointment scheduling, 190 the identification of more national security and public safety concerns, and an increase in the level and complexity of fraud concerns, USCIS was unable to match the pace of adjudications to the volume of receipts. As result, on May 22, 2015, plaintiffs in Rosario v. USCIS, No. C15-0813JLR (W.D

tors, including a massive growth in EAD application volume, the need for ASC appointment scheduling, 190 the identification of more national security and public safety concerns, and an increase in the level and complexity of fraud concerns, USCIS was unable to match the pace of adjudications to the volume of receipts. As result, on May 22, 2015, plaintiffs in Rosario v. USCIS, No. C15-0813JLR (W.D. Wash.), brought a class action in the U.S. District Court for the Western District of Washington to compel USCIS to comply with the 30-day processing timeframe of 8 CFR 208.7(a)(1). 191 On July 26, 2018, the court enjoined USCIS from further failing to adhere to the 30-day processing timeframe for adjudicating EAD applications. As of March 2025, USCIS completed 86.4 percent of initial (c)(8) EAD applications within 30 days and completed 98.3 percent of initial (c)(8) applications within 60 days. However, compliance with the court order places significant strain on already limited agency resources, especially considering that initial (c)(8) EAD applications (except those filed under the special ABC procedures) are free of cost, and USCIS will not be able to continue to sustain this burden in the long-term without adding additional agency resources or negatively impacting processing times for other applications, petitions, and benefit requests, including other EAD categories. Full-time equivalent officer hours allocated to initial (c)(8) EAD applications have increased from approximately 50 to a high-water mark of over 800 in March of 2025 in order to keep pace with the drastic increase in initial (c)(8) EAD application receipts. Given that there was previously no fee for initial (c)(8) EAD applications (except those filed under the special ABC procedures), the costs of intake, adjudication, and customer service and other support functions were historically borne by other benefit requestors who pay fees

of over 800 in March of 2025 in order to keep pace with the drastic increase in initial (c)(8) EAD application receipts. Given that there was previously no fee for initial (c)(8) EAD applications (except those filed under the special ABC procedures), the costs of intake, adjudication, and customer service and other support functions were historically borne by other benefit requestors who pay fees.

189 The regulations at 8 CFR 208.7(a)(1) currently provide that if the asylum application is not denied, USCIS will have 30 days from the date of filing of the request for employment authorization to grant or deny the employment authorization request.

Certain events may suspend or restart the 30-day adjudication period. For instance, the time between the issuance of a request for evidence and the receipt of the response, or a delay requested or caused by the alien, is not counted as part of the 30-day period. 8 CFR 208.7(a)(2).

190 At the time the INS published the current 30-day Asylum EAD clock regulation, Application Support Centers (ASCs) did not exist. All adjudications were essentially 30-45 days quicker prior to the statutory creation of the ASCs. See Section III.C., above.

191 The court in Rosario also sought to compel USCIS to comply with the 90-day rule for (c)(8) renewals based on the EAD adjudicative timeframe in 8 CFR 274a.13(d). USCIS' failure to comply with either the 30-day timeframe for initial (c)(8) EAD applications or the 90-day timeframe for (c)(8) renewals meant USCIS should have issued interim employment authorization under (then current) 8 CFR 274a.13(d) (2015).

c. Impact of Denial of the Asylum Application on Employment Authorization

Denial of the asylum application impacts the alien's ability to apply for and retain employment authorization in different ways, depending on when and where the denial occurred

0-day timeframe for (c)(8) renewals meant USCIS should have issued interim employment authorization under (then current) 8 CFR 274a.13(d) (2015).

c. Impact of Denial of the Asylum Application on Employment Authorization

Denial of the asylum application impacts the alien's ability to apply for and retain employment authorization in different ways, depending on when and where the denial occurred.

If the asylum application is denied by an asylum officer or IJ within the 150-day waiting period after applying for asylum, the alien may not apply for employment authorization. 8 CFR 208.7(a)(1). If the application for employment authorization is filed after the 150-day waiting period and the asylum application is denied prior to adjudication of the application for employment authorization, employment authorization will be denied. Id.

If the alien applies for and is granted an EAD based on a pending affirmative asylum application and the asylum application is denied by the asylum officer, the EAD will either terminate on its expiration date or 60 days after the denial of the asylum application, whichever is later. 8 CFR 208.7(b)(1). If the alien receives an EAD and the asylum application is later referred by USCIS to EOIR, employment authorization will remain valid through the expiration date on the EAD. 8 CFR 208.7(b)(2).

If the IJ, BIA, or Federal court denies the asylum application and the alien does not file the appropriate request for administrative or judicial review, employment authorization will expire on the date printed on the EAD. 8 CFR 208.7(b)(2). If the IJ, BIA, or Federal court denies the asylum application and the alien chooses to file the appropriate request for administrative or judicial review, employment authorization will remain valid through the EAD expiration date, and the alien will be eligible to file for a renewal EAD upon its expiration. 8 CFR 208.7(c).

zation will expire on the date printed on the EAD. 8 CFR 208.7(b)(2). If the IJ, BIA, or Federal court denies the asylum application and the alien chooses to file the appropriate request for administrative or judicial review, employment authorization will remain valid through the EAD expiration date, and the alien will be eligible to file for a renewal EAD upon its expiration. 8 CFR 208.7(c).

IV. Related Rulemaking

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

A. Discretionary EAD NPRM

In a separate notice of proposed rulemaking (NPRM), DHS is will propose amendments to regulations governing discretionary employment authorization for certain aliens who: have final orders of removal, but are temporarily released from custody on orders of supervision (OSUP); are paroled into the United States temporarily for urgent humanitarian reasons or significant public benefit; or have been granted deferred action. DHS proposes to limit and clarify eligibility to apply for these categories of discretionary employment authorization. DHS further proposes to specify that aliens applying for discretionary employment authorization: (1) who admit committing a violent or dangerous crime even if he or she has never been formally arrested, charged, indicted, or convicted; (2) who have been arrested for, charged with (without disposition), indicted for, or convicted of any criminal acts; or (3) for whom there is evidence of the alien's membership in a gang or terrorist organization, generally do not warrant a favorable exercise of discretion unless there are significant countervailing public interests

e Fall 2025 Unified Agenda of Federal Regulatory and Deregulatory Actions.

DHS considered the possible combined effects of Asylum EAD Reform NPRM and the Biometrics NPRM. As at least one of the amendments made in the Asylum EAD Reform NPRM and the Biometrics NPRM generally overlap, the combined effects are generally mitigated by the inclusion of a similar amendment between the two proposed rules. Specifically, DHS is proposing to require biometrics for all (c)(8) EAD applicants in both the Asylum EAD NPRM and the Biometrics NPRM.

V. Discussion of Proposed Rule

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

The IIRIRA amended the Act to state that any asylum procedures established under section 208(d)(1) of the Act, 8 U.S.C. 1158(d)(1), “shall provide that . . . , in the absence of exceptional circumstances, final administrative adjudication of [an] asylum application . . . shall be completed within 180 days after the date an application is filed.” 192 In 1996, Congress decided to pursue completion of first-instance asylum application decisions within 180 days of filing. Both Congress and the administration at that time provided significant resources to accomplish that processing goal. 193 After the statutory and regulatory changes of 1994 and 1996, new asylum filings decreased from their peak of 154,464 in FY 1995 to 32,711 in FY 1999. 194 As a result of both the reforms and the increase in resources, the asylum system moved closer to accomplishing both protection and benefit integrity, and closer to aligning with the original intent behind the asylum process as a whole. 195 The intent has always been that once an asylum claim is filed, a decision is made in a timely manner so that there is no need for an employment authorization document until the alien has received a decision on the asylum application.

192 IIRIRA sec. 604(a), Public Law 104-208 (codified at INA sec. 208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii)). IIRIRA also modified the asylum statute to provide “[n]othing in [8 U.S.C

een that once an asylum claim is filed, a decision is made in a timely manner so that there is no need for an employment authorization document until the alien has received a decision on the asylum application.

192 IIRIRA sec. 604(a), Public Law 104-208 (codified at INA sec. 208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii)). IIRIRA also modified the asylum statute to provide “[n]othing in [8 U.S.C. 1158(d)] shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.” INA sec. 208(d)(7), 8 U.S.C. 1158(d)(7). Courts accordingly have acknowledged the “exceptional circumstances” carve-outs to the timing provisions of INA sec. 208(d)(5)(A), 8 U.S.C. 1158(d)(5)(A), and this no-private-right-of-action provision render those timing provisions non-mandatory. See, e.g., Zhuo v. Mayorkas, No. 23-cv-5416, 2024 WL 4309232 at *4 (E.D.N.Y. Sept. 26, 2024) (“The qualifying phrase `absen[t] exceptional circumstances' suggests that Congress intended that the timeline not apply while the USCIS is dealing with an exceptional level of aliens,” and “the bar to a private right of action set forth in § 1158(d)(7) . . . supplies additional evidence of Congress' intent that the timeline is not mandatory.”).

193 David A. Martin, “The Need for Balance,” Proceedings of the Annual Meeting, American Society of International Law, Vol. 98 (2004), pp. 252-55; S. Rept. 104-249 (1996) (describing increased property and personnel to address the asylum backlog).

address the asylum backlog).

194 Part of the reason for the high numbers in FY 1995 was the ABC Settlement, which required certain aliens to file by deadlines in 1995 and 1996. USCIS, “American Baptist Churches v. Thornburgh (ABC) Settlement Agreement,” https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/american-baptist-churches-v-thornburgh-abc-settlement-agreement (last updated Sept. 3, 2009); INS, DOJ, “1995 Statistical Yearbook of the Immigration and Naturalization Service” (Mar. 1997), p. 84; INS, DOJ, “1999 Statistical Yearbook of the Immigration and Naturalization Service” (Mar. 2002), p. 86.

195 David A. Martin, “The Need for Balance,” Proceedings of the Annual Meeting, American Society of International Law, Vol. 98 (2004), pp. 252-55.

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

grow

d 54,092 credible fear cases. 199 In 2023, that number almost tripled to 150,431 credible fear receipts. 200 In 2023, with the expiration of Title 42, USCIS allocated more than 90% of its asylum officers to process an expected surge of credible fear cases. 201 This left only about 3 percent of asylum officers to adjudicate affirmative asylum cases, thus allowing the backlog to continue to

grow. 202 Similar to the affirmative asylum program, EOIR also more than tripled their asylum application receipts, going from 265,632 in FY 2022 to 905,632 in FY 2024. 203 While the average processing time for an affirmative asylum case completed in FY 2024 was 1,287 days, it is important to note this includes the universe of affirmative asylum cases, including backlog, LIFO, and any case prioritized for adjudication, such as Afghan Operation Allies Welcome (OAW), 204 mandamus, and expedited cases. In FY 2025 Q1, new affirmative asylum applicants could expect processing to take 765.75 months, or more than 63 years; and for new filers in FY 2025 Q2, USCIS expects processing to take approximately 562.25 months, or more than 46 years. 205 DHS believes the current volume and processing times of asylum applications reflects similar dynamics as the pre-reform filings, and the effect of the prior reform supports the deduction that there are many frivolous, fraudulent, or otherwise meritless asylum application filings that are filed solely for the purposes of obtaining an EAD. The asylum system is again in need of a reform that decouples employment authorization from the filing of an asylum application. However, the situation has now turned catastrophic and requires novel solutions that meet the severity of the problem.

196 As described previously, after the statutory and regulatory changes of 1994 and 1996, new asylum filings decreased by approximately 80 percent from FY 1995 to FY 1999, and the approval rate for asylum filings significantly increased

the current pending volume. It is a metric that can be used for projections because it takes into account current pending volume, anticipated receipts, and expected completions.

If finalized, DHS would pause the acceptance of initial (c)(8) EAD applications when the average processing time 206 for affirmative asylum applications over a consecutive period of 90 days adjudication exceeds 180 days. 207 Acceptance of initial (c)(8) EAD applications would resume when the average processing time for affirmative asylum adjudications over a consecutive period of 90 days is less than or equal to 180 days. The USCIS Director's determination to pause or restart acceptance of (c)(8) EAD applications is not discretionary, and that determination would be directly tethered to the processing times of all affirmative asylum applications over the previous 90-day period. DHS acknowledges that the pausing of acceptance of initial (c)(8) EAD applications will create a potentially significant hardship for asylum applicants. Depending on asylum receipts moving forward, which will likely decrease if this rule is finalized as proposed but will also continue to be subject to change due to a variety of other factors, the initial pause may last a significant amount of time. The pause on EAD application acceptances and processing may last from 14 to 173 years, or longer. For example, without factoring in any of the other proposed changes in this rule and how they would impact adjudications, if receipts decrease by 80 percent, as they did following the 1994 regulatory reforms, it could take USCIS as long as 14 years to reach a 180-day processing time. 208 If, instead, receipts decrease by 50 percent, it could take USCIS as long as 173 years to reach a 180-day processing time. It bears repeating that neither of those projections take into account any of the other proposed changes in this rule which, if finalized, would also shorten those processing times

similar situation to the INS in the early 1990s. The INS responded with certain regulatory reforms that succeeded in curtailing meritless claims and delivering fair and timely decisions on asylum cases. 210 In the wake of those asylum reforms, new asylum filings actually decreased from their then-peak of 149,566 in FY 1995 to just 30,261 in FY 1999, a decrease of nearly 80 percent in only five FYs. 211 At the same time, the approval rate significantly increased, from 15 percent of cases adjudicated in FY 1993 to 38 percent in FY 1999. 212 Consequently, INS's reforms met the stated goals of that rulemaking, preventing aliens from applying for asylum primarily as a means to obtain employment authorization, while simultaneously enabling the INS to more promptly grant asylum—and provide work authorization—to those who merit this relief”. 213 Because the proposals in this rulemaking are designed to have a similar effect to those reforms implemented by the INS in 1994, DHS expects this rulemaking will eventually achieve similar results to those achieved by the INS.

210 Rules and Procedures for Adjudication of Applications for Asylum or Withholding of Deportation and for Employment Authorization, 59 FR 14779 (Mar. 30, 1994); Rules and Procedures for Adjudication of Applications for Asylum or Withholding of Deportation and for Employment Authorization, 59 FR 62284 (Dec. 5, 1994).

211 Ruth Ellen Wasem, Congressional Research Service, “Asylum and `Credible Fear' Issues in U.S. Immigration Policy” (June 29, 2011), https://www.congress.gov/crs-product/R41753; INS, DOJ “Asylum Reform: Five Years Later” (Feb. 1, 2000), https://www.uscis.gov/sites/default/files/document/news/Asylum.pdf.

212 INS, DOJ “1999 Statistical Yearbook of the Immigration and Naturalization Service” (Mar. 2002), p. 100. Percent approved is `[t]he number of cases granted divided by the sum of: cases granted; denied; and referred to an Immigration Judge following an interview.”

213 See 59 FR 62284, 62290-62291 (Dec. 5, 1994)

eb. 1, 2000), https://www.uscis.gov/sites/default/files/document/news/Asylum.pdf.

213 See 59 FR 62284, 62290-62291 (Dec. 5, 1994).

As detailed above, DHS is primarily attempting to resolve the issues surrounding the asylum backlog but is having difficulty even reaching those

cases due to many operational concerns and competing adjudications priorities. DHS can circumstantially establish that these proposed reforms would help DHS achieve its stated goals—which are the same as the INS's goals in 1994. For purposes of a hypothetical, assuming DHS publishes a final rule aligned with the proposed rule here and achieves similar results to what the INS achieved in 1994—a nearly 80 percent reduction in asylum applications in only five FYs—DHS could then reallocate asylum resources and more successfully tackle the looming backlog. DHS could also move its EAD adjudicatory resources to support timely adjudication of initial (c)(8) EAD applications as well as other EAD application categories, which in turn reduces processing times for EAD applications across the board. Once (c)(8) EAD receipts decrease, USCIS could comfortably surge resources to the Asylum Division for adjudications support functions (with appropriate cross training) or clerical and administrative functions, both of which have simply not been possible with the current state of operations necessary to maintain Rosario compliance.

For example, in FY2024, the last full year of data available, DHS received 422,457 asylum applications. 214 Assuming for a moment DHS can replicate INS's results with this rule, achieving an 80% reduction in asylum filings, then DHS new asylum filings would drop closer to 84,491 (20% of 422,457)

poses to codify in regulation that it will pause acceptance of initial (c)(8) EAD applications from asylum applicants when the processing times of adjudications of affirmative asylum applications exceeds 180 days for a period of 90 consecutive days, until the USCIS processing time for adjudicating affirmative asylum applications is less than or equal to 180 days for a period of 90 consecutive days. 219 After USCIS has resumed accepting initial employment authorization applications from asylum applicants, if the average processing times of adjudications of affirmative asylum applications again exceeds 180 days for a period of 90 consecutive days, USCIS would again pause the acceptance of (c)(8) EAD applications. The determinations as to whether initial employment authorization applications for asylum applicants are accepted or not would be made by the Director of USCIS, based on the USCIS processing times only and not subject to discretion. The agency would announce on the USCIS website when it will accept and when it pauses acceptance of initial (c)(8) EAD applications. The announcement would also be accompanied by the publication of the processing times, which support the determination made by the Director of USCIS. DHS believes that a website update is the most expeditious and accessible mode of notifying the public of its operational posture. DHS also believes that a critical part of this process will be to provide the processing times, which form the basis for the determinations made by the Director of USCIS. Therefore, DHS proposes to publish the quarterly processing times. It should be highlighted that any pause of initial employment authorization applications from asylum applicants would not apply to any renewal (c)(8) EAD applications, which would continue to be accepted and adjudicated by USCIS in the event the processing time of adjudications of affirmative asylum applications exceeds 180 days for a period of 90 consecutive days

h the quarterly processing times. It should be highlighted that any pause of initial employment authorization applications from asylum applicants would not apply to any renewal (c)(8) EAD applications, which would continue to be accepted and adjudicated by USCIS in the event the processing time of adjudications of affirmative asylum applications exceeds 180 days for a period of 90 consecutive days. DHS decided on a 90-day evaluation period, as it correlates with the current compilation of processing times and other statistics performed on a quarterly basis by DHS experts.

219 USCIS calculates processing times by determining how long it took to complete 80 percent of adjudicated cases over the last six months. See more USCIS, “Case Processing Times,” https://egov.uscis.gov/processing-times/more-info (last visited May 26, 2025).

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

m applications, including the frivolous, fraudulent, or otherwise by

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

220 USCIS, “Form I-765 Application for Employment Authorization, All Receipts, Denials, Pending Grouped by Eligibility Category and Filing Type,” (Apr

nefit.” 225 While those parole

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

224 See e.g. DHS final rule, International Entrepreneur Rule, 82 FR 5238 (Jan. 17, 2017). DHS published a proposed rule (83 FR 24415, May 29, 2018) to rescind the International Entrepreneur Parole Program created in January 2017. Implementation of a Parole Process for Cubans, 88 FR 1266 (Jan. 9, 2023); Implementation of a Change to the Parole Process for Cubans, 88 FR 26329 (Apr. 28, 2023); Implementation of a Parole Process for Haitians, 88 FR 1243 (Jan. 9, 2023); Implementation of a Change to the Parole Process for Haitians, 88 FR 26327 (Apr. 28, 2023); Implementation of a Parole Process for Nicaraguans, 88 FR 1255 (Jan. 9, 2023); Implementation of a Parole Process for Venezuelans, 87 FR 63507 (Oct. 19, 2022); Implementation of Changes to the Parole Process for Venezuelans, 88 FR 1279 (Jan. 9, 2023).

225 INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A); see also 8 CFR 212.5(a) and (c) through (e) (discretionary authority for establishing conditions of parole and for terminating parole). Parole was codified into immigration law in the Immigration and Nationality Act of 1952. As envisioned then, the 1952 Act authorized the Attorney General to parole aliens temporarily under such conditions as he may prescribe for emergent reasons or reasons deemed strictly in the public interest. As expressed then, “the parole of aliens seeking admission is simply a device through which needless confinement is avoided while administrative proceedings are conducted.” See Leng May Ma v. Barber, 357 U.S. 185, 190 (1958)

at foreign state or eligible aliens having no nationality who last habitually resided in that state. 232 In addition, DHS has at times re-designated countries for TPS and allowed aliens who entered the United States after the initial designation of TPS to be newly eligible for TPS. 233 In Calendar Year 2024 there were approximately 1,396,586 TPS beneficiaries. 234

231 INA sec. 244(b)(1), 8 U.S.C. 1254a(b)(1).

232 Id.

233 See, e.g., 89 FR 26172 (Apr. 15, 2024) (extending and redesignating TPS for Ethiopia).

234 USCIS OPQ DATA, “PAER0015852_I821_CY24_Congressional_Current_Holders_as_of_2024-12-31_FIN” (January 10, 2025).

The expansive use of these three programs over the years has created a very large population of illegal aliens that do not have pathways to permanent residence in the United States outside of seeking asylum. The expansive use of these programs has further incentivized aliens to file frivolous, fraudulent, or otherwise meritless asylum applicatio

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