The Department of Homeland Security has introduced a final rule titled “Asylum Application, Interview, and Employment Authorization for Applicants,” effective August 25, 2020. This rule significantly amends the regulations governing asylum applications, interviews, and employment authorization documents (EAD) for applicants, aligning with efforts to reform the U.S. asylum system.

Key Provisions of the Rule

The new rule is structured to discourage the filing of non-meritorious asylum applications intended to exploit the system for employment benefits and to prevent illegal entry into the United States. Below are the main components of the rule:

Extended Waiting Period for Employment Authorization

The rule mandates that asylum applicants wait 365 days after their application is received by the U.S. Citizenship and Immigration Services (USCIS) or the Department of Justice’s Executive Office for Immigration Review (DOJ-EOIR) before they are eligible to apply for an employment authorization document (EAD). Previously, applicants could apply for an EAD after 150 days. This extension aims to reduce the number of frivolous asylum claims filed primarily to obtain employment in the U.S.

Illegal Entry Restrictions

The rule makes individuals who enter or attempt to enter the United States illegally ineligible for an EAD, with exceptions granted under specific conditions. These include presenting themselves to a DHS officer within 48 hours of entry, expressing an intention to apply for asylum, and demonstrating good cause for their illegal entry. This provision is intended to discourage unauthorized border crossings by ensuring that employment authorization is not easily accessible to those who do not follow legal entry protocols.

Criminal Bars to Employment Authorization

The rule imposes strict bars on the issuance of employment authorization to asylum applicants with certain criminal histories. These bars apply to those convicted of aggravated felonies, serious non-political crimes outside the U.S., or specific public safety offenses such as domestic violence, child abuse, and driving under the influence of alcohol or drugs. The rule underscores that the issuance of EADs is a discretionary act, and the DHS will assess applications on a case-by-case basis to ensure that those with significant criminal backgrounds do not receive this benefit.

One-Year Filing Deadline

The rule enforces the statutory requirement that asylum applications must be filed within one year of the applicant’s arrival in the United States to be eligible for an EAD. Exceptions can be granted if an asylum officer or immigration judge determines that special circumstances justify the delay. This requirement emphasizes the importance of timely asylum claims to facilitate orderly processing and adjudication.

Elimination of Recommended Approvals

Under the new regulations, USCIS will no longer issue recommended approvals for affirmative asylum cases where preliminary findings are favorable but background checks are pending. This change aims to simplify the process and reduce administrative burdens, ensuring that all security and background checks are completed before any form of approval is granted.

Termination of Employment Authorization

The rule specifies that employment authorization will terminate upon the denial of an asylum application by a USCIS asylum officer, effective immediately. If the application is referred to the DOJ-EOIR and subsequently denied by an immigration judge, employment authorization will terminate 30 days after the decision unless an appeal is filed with the Board of Immigration Appeals (BIA). The rule prohibits EADs during the federal court appeal process unless the case is remanded to the BIA.

Biometrics Collection

The rule requires asylum applicants to submit biometrics, such as fingerprints and photographs, as part of the EAD application process. This measure is designed to enhance identity verification and ensure thorough background checks, which are crucial for maintaining the security and integrity of the asylum system.

Implementation and Transition

The rule applies to initial and renewal applications for employment authorization filed on or after the effective date, with certain provisions applying retroactively. DHS has outlined that existing EADs issued before the rule’s effective date will remain valid until their expiration, unless terminated or revoked under the new provisions.