News

Asylum seekers in the United States may not work without authorization from federal immigration authorities. Proposed regulations threaten to leave asylum seekers without employment authorization indefinitely which they await decisions on their asylum applications.

Federal law prohibits asylum applicants from receiving employment authorization unless their applications have been pending at least 180 days. 8 U.S.C. § 1158(d)(2). Current regulations seek to ensure that people with pending asylum applications can work as soon as authorized by statute. The administration has proposed new regulations that would eliminate the regulatory time frame in which the Department of Homeland Security (DHS) must grant or deny the employment authorization application.

Under existing federal law, a person with a pending asylum application may apply for and receive authorization to work while their asylum application is pending. Regulations require an asylum applicant to wait at least 150 days after submitting an asylum application before they may apply for employment authorization. DHS, in turn, must process the application within 30 days of receipt, making the total wait time about six months after applying for asylum. 8 CFR § 208.7(a)(1).

The Department of Homeland Security has flagrantly disregarded the 30-day rule, resulting in a 2018 federal court order requiring DHS to comply with its own regulation and process applications within the required timeframes. Rosario v. USCIS. [1]

Rather than complying with the federal court order, DHS is trying to change the rule. On September 9, 2019, USCIS issued a proposed regulation to eliminate the 30-day processing rule and give the agency an unlimited window in which to process work permit applications.[2]

DHS is currently accepting comments on the proposed elimination of the 30-day processing time, and we encourage those concerned to submit such comments.

WHY THIS MATTERS

The Advocates for Human Rights is concerned that this change will harm clients, businesses, and communities by further delaying the time an asylum applicant must wait to legally work or get a driver's license while their application is pending. This change will burden private support systems and charities, make it difficult for small businesses to find workers, and could have multiplier effects in terms of destabilizing communities. The Advocates is also concerned that this change represents yet another attack on the part of this Administration, which has consistently attempted to impede the right to seek asylum.

Of particular concern is the proposed elimination of the 30-day rule without providing a maximum processing time. Already, the six-month waiting period places a heavy burden on asylum seekers who were forced to flee, often having to leave behind or spend in transit any resources they may have had.

Asylum seekers today face long backlogs in asylum processing, often waiting years after filing the asylum application for an interview and, even later, a decision. Asylum seekers are often vulnerable, with medical and mental health needs due to their trauma and persecution. Generally excluded from public assistance, asylum seekers must work to provide food, clothing, shelter, and other basic needs for themselves and their families. Asylum seekers who were forced to leave spouses and children behind must save thousands of dollars to pay for travel expenses. Without employment authorization, asylum seekers are dependent on individual and other private charity.

Indefinitely blocking asylum seekers' ability to support themselves and their families is an abuse of discretion and an attempt to further deter people from seeking asylum in the United States. The proposed rule comes on top of extreme adjudication delays by USCIS across all types of cases and recent changes in USCIS customer service procedures which make it nearly impossible to follow up on pending cases.

In addition, the proposed rule is part of a pattern of animus towards the right to seek asylum this administration has shown. The justifications contained in the proposed rule are veiled attempts to justify what is an attack on the rights of asylum seekers and a pattern of practice by this administration aimed at breaking the asylum system.

The Administration attempts to justify the proposed rule on the basis of national security and vetting concerns and on administrative efficiency interests. In terms of administrative efficiency, the proposed rule notes the burden that has resulted from shifting staff to timely process EAD applications in compliance with Rosario v. USCIS and claims there will be a cost saving by eliminating the timeline. However, it notes "USCIS could hire more officers, but has not estimated the costs of this and therefore has not estimated the hiring costs that might be avoided if this proposed rule were adopted."

The proposal also cites vague security concerns which the federal court in Rosario found to be sufficiently low to order USCIS to comply with the 30-day processing deadline. Any need for additional vetting prior to issuance of employment authorization could be addressed by less draconian means than simply eliminating the processing parameters for all applicants.

The Universal Declaration of Human Rights enshrines the right to seek and enjoy asylum from persecution. The United States has committed to that principle through the International Convention on Civil and Political Rights, the Refugee Convention and Protocol, and the Convention Against Torture. This right has been codified in federal law. Without access to a means of basic support during the asylum process, the United States weakens its commitment to this fundamental human right.

WHAT TO DO

We encourage our volunteers, communities, and supporters-as well as applicants themselves-to submit a comment to USCIS discouraging this change.  Directions for how to do so can be found below, and sample wording is provided. Comments must be received on or before November 8, 2019.

In particular, DHS is specifically seeking comments on the following items.  Therefore, comments by supporters who have specific knowledge or relation to the following topics would be encouraged:

• DHS also acknowledges the distributional impacts associated with an applicant waiting for an EAD onto the applicant's support network. DHS cannot determine how much monetary or other assistance is provided to such applicants. DHS requests comments from the public on any data or sources that demonstrate the amount or level of assistance provided to asylum applicants who have pending EAD applications.
• DHS requests comments from the public that would assist in understanding costs not described herein as relates to the impact on small businesses (referencing the IRFA).

HOW TO SUBMIT A COMMENT

You may submit comments on the entirety of this proposed rule package, which is identified as DHS Docket No. USCIS-2018-0001, by any one of the following methods:

• Federal eRulemaking Portal (preferred): http://www.regulations.gov. Follow the website instructions for submitting comments. This document is scheduled to be published in the Federal Register on 09/09/2019 and available online at https://federalregister.gov/d/2019-19125.
• Mail: Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW, Mailstop #2140, Washington, DC 20529-2140. To ensure proper handling, please reference DHS Docket No. USCIS-2018-0001 in your correspondence. Mail must be postmarked by the comment submission deadline. Please note that USCIS cannot accept any comments that are hand delivered or couriered. In addition, USCIS cannot accept mailed comments contained on any form of digital media storage devices, such as CDs/DVDs and USB drives.

[1] Available at: https://www.americanimmigrationcouncil.org/sites/default/files/litigation_documents/rosario_vs_uscis_order_granting_plaintiffs_motion_for_summary_judgment_and_denying_defendants_motion_for_summary_judgment.pdf

[2] Available at: https://www.federalregister.gov/documents/2019/09/09/2019-19125/removal-of-30-day-processing-provision-for-asylum-applicant-related-form-i-765-employment