Labor & Employment Law Daily DHS finalizes rules on employment authorization for asylum seekers
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Thursday, June 25, 2020

DHS finalizes rules on employment authorization for asylum seekers

By Pamela Wolf, J.D.

The final rule does not alter asylum eligibility criteria in any way, but it outlines new requirements for employment authorization while asylum applications are pending—requirements that may endanger the health, safety and lives of asylum seekers, say critics of the rule.

Under a final rule issued by the Department of Homeland Security, aliens who, absent good cause, illegally entered the United States are prevented from obtaining employment authorization based on a pending asylum application. The final rule is aimed at deterring aliens from illegally entering the U.S. and from filing frivolous, fraudulent, or otherwise non-meritorious claims for asylum to obtain an employment authorization document (EAD), the agency says. The final rule goes into effect 60 days after its publication in the Federal Register, slated for June 26 (August 26).

U.S. Citizenship and Immigration services noted that the final rule also:

  • Defines new bars and denials for employment authorization, such as for certain criminal behavior;
  • Extends the wait time before an asylum applicant can apply for employment authorization from 150 days to 365 calendar days;
  • Limits the employment authorization validity period to a maximum of two years; and
  • Automatically terminates employment authorization when an applicant’s asylum denial is administratively final.

USCIS stressed the final rule does not alter asylum eligibility criteria in any way.

Proposed rule. On November 14, 2019, DHS issued a notice proposing to make the following modifications, among others:

  • Extending the waiting period to for asylum applicants to apply for employment authorization from 150 to 365 calendar days from the date their asylum applications are received by USCIS or the Department of Justice, Executive Office for Immigration Review (DOJ-EOIR). USCIS would also deny (c)(8) EAD applications if there are any unresolved applicant-caused delays on the date of the EAD adjudication.
  • Eliminating the issuance of recommended approvals for a grant of affirmative asylum.
  • Revising eligibility for employment authorization to exclude aliens who, absent good cause, entered or attempted to enter the U.S. at a place and time other than lawfully through a port of entry from eligibility for (c)(8) employment authorization.
  • Excluding from eligibility for employment authorization aliens who have failed to file for asylum within one year of their last entry, unless and until an asylum officer or Immigration Judge (IJ) determines that an exception to the statutory requirement to file for asylum within one year applies. The one-year filing deadline would not exclude unaccompanied alien children from eligibility to obtain an EAD. Also excluded would be aliens whose asylum applications have been denied by an asylum officer or an IJ during the 365-day waiting period or before the request for initial employment authorization has been adjudicated.
  • Excluding from employment authorization aliens who have been convicted of: any aggravated felony as defined under INA Section 101(a)(43); any felony in the U.S. or serious non-political crime outside the U.S.; or certain public safety offenses in the U.S. USCIS would decide at its discretion whether to grant employment authorization, based on the totality of the circumstances, where an applicant has unresolved domestic arrests or pending charges involving domestic violence, child abuse, possession or distribution of controlled substances, or driving under the influence of drugs or alcohol.
  • Revising EAD termination provisions under (c)(8) so that when a USCIS asylum officer denies an alien’s request for asylum, any employment authorization associated with a pending asylum application would be terminated effective on the date of denial. If a USCIS asylum officer determines that the alien is not eligible for asylum, the asylum officer would typically refer the case to DOJ-EOIR.
  • Where USCIS refers a case to DOJ-EOIR, employment authorization would continue, and the alien would be eligible to continue applying for EAD renewals, if needed, until the IJ renders a decision on the asylum application. If the IJ denies the asylum application, the alien’s employment authorization would terminate 30 days after denial, unless the alien filed a timely appeal with the Board of Immigration Appeals (BIA). Renewal of employment authorization would be available to the alien during the pendency of the BIA appeal, but employment authorization would be prohibited during the federal court appeal process. The alien would be able to reapply for a (c)(8) EAD if the federal court remanded the asylum case to BIA.
  • Changing provisions for filing an asylum application by removing the requirement that USCIS return an incomplete application within 30 days or have it deemed complete for adjudication purposes. Amending an asylum application, requesting an extension to submit additional evidence beyond a time that allows for its meaningful consideration prior to the interview, or failing to appear to receive a decision as designated, would constitute an applicant-caused delay, which, if not resolved by the date the application for employment authorization is adjudicated, would result in a denial. DHS would also clarify the effect of an applicant’s failure to appear for either an asylum interview or a scheduled biometric services appointment on a pending asylum application.
  • Clarifying that validity of (c)(8) EAD employment authorization is discretionary and proposing that any (c)(8) EAD validity period, whether initial or renewal, would not exceed increments of two years. USCIS may set shorter validity periods for initial and renewal (c)(8) EADs.
  • Incorporating biometrics collection requirements into the employment authorization process for asylum seekers.
  • Clarifying that aliens who have been paroled after establishing a credible fear or reasonable fear of persecution or torture under 8 CFR 208.30 may not request a discretionary grant of employment authorization under 8 CFR 274a.12(c)(11), but may still apply for a (c)(8) EAD, if eligible.

Changes based on comments. DHS noted that after receiving comments on its proposed rule, it made several changes in the final rule. Some of these are discussed below.

Effective date. DHS proposed to apply the one-year filing deadline and criminal provisions to (c)(8) EAD applications pending on the effective date of the final rule, but it has determined that it will not apply any provisions of the rule to applications for employment authorization under 8 CFR 274a.12(c)(8) and (c)(11) that are pending on the final rule’s effective date. Among other things, this means:

  • Since the criminal provisions will not be applied to aliens with initial and renewal EAD applications under (c)(8) or (11) that are pending on the final rule’s effective date as initially proposed, DHS will not require these aliens to appear for biometrics collection associated with their pending EAD applications.
  • DHS will only apply the termination provisions to aliens who filed their applications for employment authorization (initial and renewal) on or after the final rule’s effective date, regardless of whether their asylum application was filed before or after the final rule’s effective date.
  • DHS will only apply the illegal entry bar to eligibility for employment authorization to aliens who entered or attempted to enter the U.S. at a place and time other than lawfully through a U.S. port of entry on or after the final rule’s effective date.
  • DHS will only apply the one-year filing deadline provision to aliens who filed their asylum application on or after the final rule’s effective date.
  • DHS will only apply the criminal bars for particularly serious crimes and serious non-political crimes where the conviction or offense triggering the bar occurred on or after the final rule’s effective date, but it will apply the aggravated felony bar to any conviction regardless of the conviction date.

Illegal entry exemption. Theproposed rule excluded from (c)(8) EAD eligibility aliens who entered or attempted to enter the U.S. at a place and time other than lawfully through a U.S. port of entry, with the limited exception of when aliens demonstrate that they:

1. Presented themselves without delay to the Secretary of Homeland Security (or his or her delegate);
2. Indicated to a DHS agent or officer an intent to apply for asylum or expressed a fear of persecution or torture; and
3. Otherwise had good cause for the illegal entry or attempted entry.

The final rule clarifies that to meet the first prong of the exception, aliens must present themselves without delay, but no later than 48 hours after the entry or attempted entry, to the Secretary or his or her delegate.

One-year filing deadline clarified. In the proposed rule, aliens who fail to file their asylum applications within one year of their arrival into the U.S. would be ineligible for a (c)(8) EAD while their asylum application is pending until an asylum officer or an immigration judge has determined that the alien meets an exception under INA section 208(a)(2)(D).

In the final rule, DHS makes a clarifying amendment to 8 CFR 208.7(a)(1)(iii)(F) to replace the word “beyond” with “after” to more clearly indicate that aliens are not eligible for a (c)(8) EAD if the alien filed his or her asylum application after the statutory one-year filing deadline. DHS is also amending 8 CFR 208.7(a)(1)(iii)(F) to clarify that the one-year filing requirement does not apply if the alien was an unaccompanied alien child on the date their asylum application was filed.

Criminal bars to eligibility. In the final rule, DHS acknowledged that the Department of Justice and DHS have proposed a separate joint rule enumerating criminal bars to asylum that are similar to those contained in the DHS proposed rule, and has decided to adopt the bars in the joint rule, if finalized, based on the similarity to offenses initially proposed in this rulemaking and the similar impact of protecting public safety by preventing aliens with significant criminal histories from obtaining a discretionary benefit.

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

Applicant-caused delays. DHS also amended the final rule to provide that any delay requested or caused by the applicant that is outstanding or has not been remedied at the time the initial (c)(8) EAD application is filed (instead of adjudicated by USCIS as in the proposed rule) will result in the denial of the EAD application. Unlike the date of adjudication, the alien has control over the filing date. DHS believes this modification will provide applicants with certainty of their eligibility requirements under the applicant-caused delay provision, while at the same time “disincentivizing applicants from prolonging the adjudication of their asylum application.”

In addition, DHS clarified that applicant-caused delays only apply to initial applications for (c)(8) EADs.

“Safeguarding the integrity of our nation’s legal immigration system from those who seek to exploit or abuse it is key to the USCIS mission,” Joseph Edlow, the USCIS Deputy Director for Policy, said in a release. “The reforms in this rule are designed to restore integrity to the asylum system and to reduce any incentive to file an asylum application for the primary purpose of obtaining work authorization. It also deters frivolous and non-meritorious applications by eliminating employment authorization for aliens who have failed to file for asylum within one year of their last entry until USCIS or an immigration judge determines the alien’s eligibility for asylum.”

Human Rights First. Arguing that the “rule endangers the health, safety and lives of asylum seekers and their families,” Human Rights First characterized the impact of the rule. It would, among other harmful actions:

  • Substantially delay the issuance of work permits for asylum seekers by increasing the wait time required to apply from 150 to 365 days, undermining their ability to feed, house and support their families;
  • Bar asylum seekers who crossed the border, other than at a port of entry, from receiving a work permit in most cases, which would leave asylum seekers without legal authorization for many years and would penalize asylum seekers for improper entry or presence in violation of U.S. legal obligations under the Refugee Convention and Protocol;
  • Ban from work authorization an asylum seeker who filed for asylum after the current one-year asylum filing deadline, which would punish asylum seekers with valid claims to U.S. refugee protection who will ultimately be found to meet an exception to the one-year deadline.
  • Prohibit asylum seekers from receiving work authorization when their cases are being reviewed by U.S. federal courts even when the asylum seeker was ruled eligible for asylum, but the government has decided to appeal the decision; and
  • Bar asylum seekers from work authorization when, for example, they move to a new address that would transfer the application to a different asylum office or immigration court.

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