<pre>[Federal Register Volume 84, Number 174 (Monday, September 9, 2019)] [Proposed Rules] [Pages 47148-47170] From the Federal Register Online via the Government Publishing Office [<a href=”http://www.gpo.gov”>www.gpo.gov</a>] [FR Doc No: 2019-19125]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 84, No. 174 / Monday, September 9, 2019 /
Proposed Rules
DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 208
[CIS No. 2617-18; DHS Docket No. USCIS-2018-0001] RIN 1615-AC19
Removal of 30-Day Processing Provision for Asylum Applicant-
Related Form I-765 Employment Authorization Applications
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Notice of proposed rulemaking.
———————————————————————–
SUMMARY: The Department of Homeland Security (DHS) proposes to remove a
regulatory provision stating that U.S. Citizenship and Immigration
Services (USCIS) has 30 days from the date an asylum applicant files
the initial Form I-765, Application for Employment Authorization (EAD
application) to grant or deny that initial employment authorization
application. DHS also proposes to remove the provision requiring that
the application for renewal must be received by USCIS 90 days prior to
the expiration of the employment authorization.
DATES: Written comments and related material must be submitted on or
before November 8, 2019.
ADDRESSES: You may submit comments on the entirety of this proposed
rule package, to include any proposed information collection
requirements, which is identified as DHS Docket No. USCIS-2018-0001, by
any one of the following methods:
<bullet> Federal eRulemaking Portal (preferred): <a href=”http://www.regulations.gov”>http://www.regulations.gov</a>. Follow the website instructions for submitting
comments.
<bullet> 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.
FOR FURTHER INFORMATION CONTACT: Daniel Kane, Branch Chief, Service
Center Operations, U.S. Citizenship and Immigration Services (USCIS),
DHS, 20 Massachusetts NW, Washington, DC 20529-2140; telephone: 202-
272-8377.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Executive Summary
A. Purpose of the Regulatory Action
B. Legal Authority
C. Costs and Benefits
III. Background and Discussion of Proposed Rule
Processing of Applications for Employment Authorization
Documents
1. Elimination of 30-Day Processing Timeframe
2. Removal of the 90-Day Filing Requirement
3. Corresponding U.S. Department of Justice (DOJ) Regulations
IV. Statutory and Regulatory Requirements
A. Executive Orders 12866 (Regulatory Planning and Review) and
13563 (Improving Regulation and Regulatory Review)
1. Summary
2. Background and Purpose of the Proposed Rule
3. Population
4. Transfers, Costs and Benefits of This Proposed Rule
B. Regulatory Flexibility Act
C. Congressional Review Act
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132 ((Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Paperwork Reduction Act
H. Family Assessment
I. Executive Order 13175
J. National Environmental Policy Act (NEPA)
K. National Technology Transfer and Advancement Act
L. Executive Order 12630
M. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
N. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
V. List of Subjects and Regulatory Amendments
Table of Abbreviations
BCU Background Check Unit
CFDO Center Fraud Detection Operations
CFR Code of Federal Regulations
DHS Department of Homeland Security
EAD Employment Authorization Document
INA Immigration and Nationality Act
HSA Homeland Security Act of 2002
USCIS U.S. Citizenship and Immigration Services
I. Public Participation
DHS invites all interested parties to participate in this
rulemaking by submitting written data, views, comments, and arguments
on all aspects of this proposed rule. DHS also invites comments that
relate to the economic, environmental, or federalism effects that might
result from this proposed rule. Comments must be submitted in English,
or an English translation must be provided. Comments that will provide
the most assistance to USCIS in implementing these changes will
reference a specific portion of the proposed rule, explain the reason
for any recommended change, and include data, information, or authority
that supports such recommended changes.
Instructions: If you submit a comment, you must include the agency
name (U.S. Citizenship and Immigration Services) and the DHS Docket No.
USCIS-2018-0001 for this rulemaking. Please note that DHS is also
pursuing a separate rulemaking entitled “Asylum Application,
Interview, and Employment Authorization for Applicants,” RIN 1615-
AC27, DHS Docket No. USCIS-2019-0011 (“broader asylum EAD NPRM”),
separate from this NPRM. The two rulemakings include distinct
proposals. For this proposed rule, DHS will only consider comments
submitted to Docket No. USCIS-2018-0001. Please ensure that you submit
your comments to the correct docket.
Regardless of the method used for submitting comments or material,
all submissions will be posted, without change, to the Federal
eRulemaking Portal at <a href=”http://www.regulations.gov”>http://www.regulations.gov</a>, and they will include
any personal information you provide. Therefore, submitting this
information makes it public. You may wish to consider limiting the
amount of personal information that you provide in any voluntary public
comment submission that you make to DHS. DHS may
withhold information provided in comments from public viewing if it
determines that it may impact the privacy of an individual or is
offensive. For additional information, please read the Privacy and
Security Notice, which is available at <a href=”http://www.regulations.gov”>http://www.regulations.gov</a>.
Docket: For access to the docket and to read background documents
or comments received, go to <a href=”http://www.regulations.gov”>http://www.regulations.gov</a>, referencing DHS
Docket No. USCIS-2018-0001. You may also sign up for email alerts on
the online docket to be notified when comments are posted or a final
rule is published.
II. Executive Summary
A. Purpose of the Regulatory Action
DHS is proposing to eliminate the regulation articulating a 30-day
processing timeframe for USCIS to adjudicate initial Applications for
Employment Authorization (Forms I-765 or EAD applications) for asylum
applicants. This change is intended to ensure USCIS has sufficient time
to receive, screen, and process applications for an initial grant of
employment authorization based on a pending asylum application. This
change will also reduce opportunities for fraud and protect the
security-related processes undertaken for each EAD application. DHS is
also proposing to remove the provision requiring that the application
for renewal must be received by USCIS 90 days prior to the expiration
of their employment authorization. This change is intended to align
existing regulatory text with DHS policies implemented under the
Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program
Improvements Affecting High-Skilled Nonimmigrant Workers final rule, 82
FR 82398, 82457 (2017 AC21 Rule), which became effective January 17,
2017.
B. Legal Authority
The authority of the Secretary of Homeland Security (Secretary) for
these regulatory amendments is found in various sections of the
Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and the
Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat.
2135, 6 U.S.C. 101 et seq. General authority for issuing the proposed
rule is found in section 103(a) of the INA, 8 U.S.C. 1103(a), which
authorizes the Secretary to administer and enforce the immigration and
nationality laws and to establish such regulations as she deems
necessary for carrying out such authority. Further authority for the
regulatory amendment in the final rule is found in section 208(d)(2) of
the INA, 8 U.S.C. 1158(d)(2), which states an applicant for asylum is
not entitled to employment authorization, and may not be granted asylum
application-based employment authorization prior to 180 days after
filing of the application for asylum, but otherwise authorizes the
Secretary to prescribe by regulation the terms and conditions of
employment authorization for asylum applicants.
C. Costs and Benefits
DHS proposes to remove the requirement to adjudicate initial EAD
applications for pending asylum applicants within 30 days. In FY 2017,
prior to the Rosario v. USCIS court order, the adjudication processing
times for initial Form I-765 under the Pending Asylum Applicant
category exceeded the regulatory set timeframe of 30 days more than
half the time. However, USCIS adjudicated approximately 78 percent of
applications within 60 days. In response to the Rosario v. USCIS
litigation and to comply with the court order, USCIS has dedicated as
many resources as practicable to these adjudications, but continues to
face a historic asylum application backlog, which in turn increases the
numbers of applicants eligible for pending asylum EADs. However, USCIS
does not want to continue this reallocation of resources as a long-term
solution because it removes resources from other competing work
priorities in other product lines and adds delays to other time-
sensitive adjudication timeframes. 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.
Hiring more officers would not immediately and in all cases shorten
adjudication timeframes because (1) additional time would be required
to onboard and train new employees, and (2) for certain applications,
additional time is needed to fully vet an applicant, regardless of
staffing levels.
In addition, USCIS has also not estimated the cost impacts that
hiring additional officers could have on the agency’s form fees. There
is currently no fee for asylum applications or the corresponding
initial EAD applications, and the cost to the agency for
adjudication is covered by fees paid by other benefit requesters. USCIS
is not certain of the actual cost impacts of hiring additional
adjudicators to process these EAD applications at this time. USCIS
expects that potentially higher fees might be avoidable if the proposed
rule is adopted. As a primary goal, USCIS seeks to adequately vet
applicants and adjudicate applications as quickly and efficiently as
possible. This proposed rule may delay the ability for some initial
applicants whose EAD processing is delayed beyond the 30-day regulatory
timeframe to work.
—————————————————————————
On April 29, 2019, President Trump directed DHS to propose
regulations that would set a fee for an asylum application not to
exceed the costs of adjudicating the application, as authorized by
section 208(d)(3) of the INA (8 U.S.C. 1158(d)(3)) and other
applicable statutes, and would set a fee for an initial application
for employment authorization for the period an asylum claim is
pending. See Presidential Memorandum for the Attorney General and
Secretary of Homeland Security on Additional Measures to Enhance
Border Security and Restore Integrity to Our Immigration System
(Apr. 29, 2019), available at <a href=”https://www.whitehouse.gov/presidential-actions/presidential-memorandum-additional-measures-enhance-border-security-restore-integrity-immigration-system/”>https://www.whitehouse.gov/presidential-actions/presidential-memorandum-additional-measures-enhance-border-security-restore-integrity-immigration-system/</a> (last
visited June 26, 2019). The implementation of the President’s
directive would take place via a separate rulemaking, but it is
uncertain whether it would reduce the overall resource burden
associated with the 30-day adjudication timeframe.
—————————————————————————
The impacts of this rule are measured against a baseline. This
baseline is the best assessment of the way the world would look absent
this proposed action. For this proposed action, USCIS assumes that in
the absence of this proposed rule the baseline amount of time that
USCIS would take to adjudicate would be 30 days. USCIS also assumes
that if this proposed rule is adopted, adjudications will align with
DHS processing times achieved in FY 2017 (before the Rosario v. USCIS
court order). This is our best estimate of what would occur if the
proposed rule is adopted. USCIS believes the FY 2017 timeframes are
sustainable and USCIS intends to meet these timeframes if the proposed
rule is adopted. Therefore, USCIS is analyzing the impacts of this rule
by comparing the costs and benefits of adjudicating initial EAD
applications for pending asylum applications within 30 days compared to
the actual time it took to adjudicate these EAD applications in FY
2017.
The impacts of this rule would include both distributional effects
(which are transfers) and costs. The distributional impacts would
fall on the asylum applicants who would be delayed in entering the U.S.
labor force. The distributional impacts (transfers) would be in the
form of lost compensation (wages and benefits). A portion of this lost
compensation might be transferred from asylum applicants to others that
are currently in the U.S.
labor force, possibly in the form of additional work hours or overtime
pay. A portion of the impacts of this rule would also be borne by
companies that would have hired the asylum applicants had they been in
the labor market earlier but were unable to find available workers.
These companies would incur a cost, as they would be losing the
productivity and potential profits the asylum applicant would have
provided had the asylum applicant been in the labor force earlier.
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.
However, if companies cannot find reasonable substitutes for the labor
the asylum applicants would have provided, this rule would primarily be
a cost to these companies through lost productivity and profits. USCIS
uses the lost compensation 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.
—————————————————————————
Transfer payments are monetary payments from one group to
another that do not affect total resources available to society. See
OMB Circular A-4 pages 14 and 38 for further discussion of transfer
payments and distributional effects. Circular A-4 is available at:
<a href=”https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf”>https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf</a>.
—————————————————————————
The lost compensation to asylum applicants could range from $255.88
million to $774.76 million annually depending on the wages the asylum
applicant would have earned. The ten-year total discounted lost
compensation to asylum applicants at 3 percent could range from
$2,182.68 million to $6,608.90 million and at 7 percent could range
from $1,797.17 million to $5,441.62 million (years 2019-2028). USCIS
recognizes that the impacts of this proposed rule could be overstated
if the provisions in the broader asylum EAD NPRM are finalized as
proposed. Specifically, the broader asylum EAD NPRM would limit or
delay eligibility for employment authorization for certain asylum
applicants. Accordingly, if the population of aliens is less than
estimated as a result of the broader asylum EAD rule, the estimated
impacts of this rule could be overstated because the population
affected may be lower than estimated in this rule.
—————————————————————————
Among other proposed changes, the broader asylum EAD NPRM
would implement a Presidential directive related to employment
authorization for asylum applicants. On April 29, 2019, President
Trump directed DHS to propose regulations that would bar aliens who
have entered or attempted to enter the United States unlawfully from
receiving employment authorization before any applicable application
for relief or protection from removal has been granted, and to
ensure immediate revocation of employment authorization for aliens
who are denied asylum or become subject to a final order of removal.
See Presidential Memorandum for the Attorney General and Secretary
of Homeland Security on Additional Measures to Enhance Border
Security and Restore Integrity to Our Immigration System (Apr. 29,
2019), available at <a href=”https://www.whitehouse.gov/presidential-actions/presidential-memorandum-additional-measures-enhance-border-security-restore-integrity-immigration-system/”>https://www.whitehouse.gov/presidential-actions/presidential-memorandum-additional-measures-enhance-border-security-restore-integrity-immigration-system/</a> (last visited June 26, 2019).
See also Unified Agenda of Regulatory and Deregulatory Actions, RIN
1615-AC27 (Spring 2019), available at <a href=”https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201904&RIN=1615-AC27″>https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201904&RIN=1615-AC27</a> (last visited
Aug. 7, 2019) (“The Department of Homeland Security (DHS) plans to
propose regulatory amendments intended to promote greater
accountability in the application process for requesting employment
authorization and to deter the fraudulent filing of asylum
applications for the purpose of obtaining Employment Authorization
Documents (EADs).”).
—————————————————————————
In instances where a company cannot hire replacement labor for the
position the asylum applicant would have filled, USCIS acknowledges
that such delays may result in tax losses to the government. It is
difficult to quantify income tax losses because individual tax
situations vary widely but USCIS estimates the potential loss to
other employment tax programs, namely Medicare and social security
which have a combined tax rate of 7.65 percent (6.2 percent and 1.45
percent, respectively). With both the employee and employer not
paying their respective portion of Medicare and social security taxes,
the total estimated tax loss for Medicare and social security is 15.3
percent. Lost wages ranging from $255.88 million to $774.76 million
would result in employment tax losses to the government ranging from
$39.15 million to $118.54 million. Again, depending on the
circumstances of the employee, there could be additional federal income
tax losses not estimated here. There may also be state and local income
tax losses that would vary according to the jurisdiction.
—————————————————————————
See More than 44 percent of Americans pay no federal income
tax (September 16, 2018) available at <a href=”https://www.marketwatch.com/story/81-million-americans-wont-pay-any-federal-income-taxes-this-year-heres-why-2018-04-16″>https://www.marketwatch.com/story/81-million-americans-wont-pay-any-federal-income-taxes-this-year-heres-why-2018-04-16</a>.
The various employment taxes are discussed in more detail at
<a href=”https://www.irs.gov/businesses/small-businesses-self-employed/understanding-employment-taxes”>https://www.irs.gov/businesses/small-businesses-self-employed/understanding-employment-taxes</a>. See IRS Publication 15, Circular E,
Employer’s Tax Guide for specific information on employment tax
rates. <a href=”https://www.irs.gov/pub/irs-pdf/p15_18.pdf”>https://www.irs.gov/pub/irs-pdf/p15_18.pdf</a>.
Calculation: (6.2 percent social security + 1.45 percent
Medicare) x 2 employee and employer losses = 15.3 percent total
estimated tax loss to government.
Calculations: Lower bound lost wages $255.88 million x 15.3
percent estimated tax rate = $39.15 million.
Upper bound lost wages $774.76 million x 15.3 percent estimated
tax rate = $118.54 million.
—————————————————————————
This proposed rule would result in reduced opportunity costs to the
Federal Government. Since Rosario compelled USCIS to comply with the
30-day provision in FY 2018, USCIS has redistributed its adjudication
resources to work up to full compliance. If the 30-day timeframe is
removed, these redistributed resources could be reallocated,
potentially reducing delays in processing of other applications, and
avoiding costs associated with hiring additional employees. USCIS has
not estimated these avoided costs. Additionally, USCIS does not
anticipate that removing the separate 90-day EAD filing requirement
would result in any costs to the Federal Government.
The proposed rule would benefit USCIS by allowing it to operate
under long-term, sustainable case processing times for initial EAD
applications for pending asylum applicants, to allow sufficient time to
address national security and fraud concerns, and to maintain
technological advances in document production and identity
verification. Applicants would rely on up-to-date processing times,
which provide accurate expectations of adjudication times.
The proposed technical change to remove the 90-day filing
requirement would reduce confusion regarding EAD renewal requirements
for pending asylum applicants and ensure the regulatory text reflects
current DHS policy and regulations under DHS’s final 2017 AC21 Rule.
—————————————————————————
In the 2017 AC21 final rule, 81 FR 82398, USCIS amended 8
CFR 274a.13 to allow for the automatic extension of existing, valid
EADs for up to 180 days for renewal applicants falling within
certain EAD categories as described in the regulation and designated
on the USCIS website. See 8 CFR 274a.13(d). Among those categories
is asylum applicants. To benefit from the automatic extension, an
applicant falling within an eligible category must (1) properly file
his or her renewal request for employment authorization before its
expiration date, (2) request renewal based on the same employment
authorization category under which the expiring EAD was granted, and
(3) will continue to be authorized for employment based on his or
her status, even after the EAD expires and is applying for renewal
under a category that does not first require USCIS to adjudicate an
underlying application, petition, or request.
—————————————————————————
[[Page 47151]] Table 1 provides a detailed summary of the regulatory changes and
the expected impacts of this proposed rule.
Table 1–Summary of Proposed Provisions and Impacts
—————————————————————————————————————-
Proposed change to Expected costs and transfers from Expected benefits from proposed
Current provision provision proposed provision provision
—————————————————————————————————————-
USCIS has a 30-day USCIS proposes to Quantitative: Quantitative:
EAD adjudication eliminate the This provision could delay the Not estimated.
timeframe for provisions for ability of some initial applicants
applicants who the 30-day to work. A portion of the impacts
have pending adjudication of the rule would be the lost
asylum timeframe and compensation transferred from
applications. issuance of EADs asylum applicants to others
for pending currently in the workforce,
asylum possibly in the form of additional
applicants. work hours or overtime pay. A
portion of the impacts of the rule
would be lost productivity costs
to companies that would have hired
asylum applicants had they been in
the labor market, but who were
unable to find available workers.
USCIS uses the lost compensation
to asylum applicants as a measure
of these distributional impacts
(transfers) and as a proxy for
businesses’ cost for lost
productivity. The lost
compensation due to processing
delays could range from $255.88
million to $774.76 million
annually. The total ten-year
discounted lost compensation for
years 2019-2028 averages $4,395.79
million and $3,619.40 million at
discount rates of 3 and 7 percent,
respectively. USCIS does not know
the portion of overall impacts of
this rule that are transfers or
costs. Lost wages ranging from
$255.88 million to $774.76 million
would result in employment tax
losses to the government ranging
from $39.15 million to $118.54
million.
……………… Qualitative: Qualitative:
There may also be additional DHS would be able to operate under
distributional impacts for those long-term sustainable case
in an applicant’s support network– processing times for initial EAD
if applicants are unable to work applications for pending asylum
legally, they may need to rely on applicants, to allow sufficient
resources from family members, time to address national security
friends, non-profits, or and fraud concerns, and to
government entities for support. maintain technological advances in
document production and identity
verification without having to add
any resources.
……………… …………………………….. This rule would result in
reduced opportunity costs to
the Federal Government. If the
30-day timeframe is removed,
USCIS could reallocate the
resources it redistributed to
comply with the 30-day
provision, potentially reducing
delays in processing of other
applications and avoiding costs
associated with hiring
additional employees.
Applicants can USCIS proposes to Quantitative: Quantitative:
currently submit remove the 90-day None. None.
a renewal EAD submission
application 90 requirement for
days before the renewal EAD
expiration of applications.
their current
EAD.
……………… Qualitative: Qualitative:
None. Applicants–
<bullet> Reduces confusion
regarding EAD renewal
requirements. Some confusion may
nonetheless remain if applicants
consult outdated versions of
regulations or inapplicable DOJ
regulations.
DHS/USCIS–
<bullet> The DHS regulations would
be updated to match those of other
EAD categories.
—————————————————————————————————————-
As previously discussed, USCIS does not know the portion of overall
impacts of this rule that are transfers or costs, but estimates that
the maximum monetized impact of this rule from lost compensation is
$774.76 million annually. If all companies are able to easily find
reasonable labor substitutes for the positions the asylum applicant
would have filled, they will bear little or no costs, so $774.76
million will be transferred from asylum applicants to workers currently
in the labor force or induced back into the labor force (we assume no
tax losses as a labor substitute was found). Conversely, if companies
are unable to find reasonable labor substitutes for the position the
asylum applicant would have filled then $774.76 million is the
estimated maximum monetized cost of the rule and $0 is the estimated
minimum in monetized transfers from asylum applicants to other workers.
In addition, under this scenario, because the jobs would go unfilled
there would be a loss of employment taxes to the Federal Government.
USCIS estimates $118.54 million as the maximum decrease in employment
tax transfers from
companies and employees to the Federal Government. The two scenarios
described above represent the estimated endpoints for the range of
monetized impacts resulting from this rule, and are summarized in Table
2 below.
Table 2–Summary of Range of Monetized Annual Impacts
——————————————————————————————————————————————————–
Scenario: No replacement labor Scenario: All asylum
found for asylum applicants applicants replaced with other Primary (half
Category Description ——————————– workers of the
——————————– highest high
Low wage High wage Low wage High wage for each row)
——————————————————————————————————————————————————–
Cost…………………………… Lost compensation used as proxy $255.88 $774.76 $0.00 $0.00 $387.38
for lost productivity to
companies.
Transfer……………………….. Compensation transferred from 0.00 0.00 255.88 774.76 387.38
asylum applicants to other
workers.
Transfer……………………….. Lost employment taxes paid to the 39.15 118.54 0.00 0.00 59.27
Federal Government.
——————————————————————————————————————————————————–
As required by OMB Circular A-4, Table 3 presents the prepared A-4
accounting statement showing the costs and transfers associated with
this proposed regulation. For the purposes of the A-4 accounting
statement below, USCIS uses the mid-point as the primary estimate for
both costs and transfers because the total monetized impact of the rule
from lost compensation cannot exceed $774.76 million and as described,
USCIS is unable to apportion the impacts between costs and transfers.
Likewise, USCIS uses a mid-point for the reduction in employment tax
transfers from companies and employees to the Federal Government when
companies are unable to easily find replacement workers. USCIS notes
that there may be some unmonetized costs such as additional opportunity
costs to employers that would not be captured in these monetized
estimates.
Table 3–OMB A-4 Accounting Statement ($ Millions, 2017)
[Period of analysis: 2019-2028]
——————————————————————————————————————————————————–
——————————————————————————————————————————————————–
Category Primary estimate Minimum Maximum Source citation (RIA, preamble, etc.)
estimate estimate
——————————————————————————————————————————————————–
Benefits
——————————————————————————————————————————————————–
Monetized Benefits……………………… (7%) N/A N/A N/A RIA.
(3%) N/A N/A N/A
——————————————————————————————————————————————————–
Annualized quantified, but un-monetized, N/A N/A N/A RIA.
benefits.
——————————————————————————————————————————————————–
Unquantified Benefits…………………… Applicants would benefit from reduced confusion over renewal RIA.
requirements. DHS would be able to operate under sustainable
case processing times for initial EAD applications for pending
asylum applicants, to allow sufficient time to address
national security and fraud concerns, and to maintain
technological advances in document production and identity
verification.
——————————————————————————————————————————————————–
Costs
——————————————————————————————————————————————————–
Annualized monetized costs (discount rate in (7%) $387.38 $0 $774.76 RIA.
parenthesis).
(3%) $387.38 $0 $774.76 RIA.
——————————————————————————————————————————————————–
Annualized quantified, but un-monetized, N/A N/A N/A RIA.
costs.
——————————————————————————————————————————————————–
Qualitative (unquantified) costs…………. In cases where companies cannot find reasonable substitutes RIA.
for the labor the asylum applicants would have provided,
affected companies would also lose profits from the lost
productivity. In all cases, companies would incur opportunity
costs by having to choose the next best alternative to
immediately filling the job the pending asylum applicant would
have filled. There may be additional opportunity costs to
employers such as search costs.
——————————————————————————————————————————————————–
Transfers
——————————————————————————————————————————————————–
Annualized monetized transfers: “on budget” (7%) $0 $0 $0 RIA.
(3%) $0 $0 $0
——————————————————————————————————————————————————–
From whom to whom?……………………… N/A N/A.
——————————————————————————————————————————————————–
Annualized monetized transfers: “off- (7%) $387.38 $0 $774.76 RIA.
budget”.
(3%) $387.38 $0 $774.76
——————————————————————————————————————————————————–
From whom to whom?……………………… From asylum applicants to workers in the U.S. labor force or RIA.
induced into the U.S. labor force. Additional distributional
impacts from asylum applicant to the asylum applicant’s
support network that provides for the asylum applicant while
awaiting an EAD.
——————————————————————————————————————————————————–
Annualized monetized transfers: “off- (7%) $59.27 $0 $118.54 RIA.
budget”.
(3%) $59.27 $0 $118.54
——————————————————————————————————————————————————–
From whom to whom?……………………… A reduction in employment taxes from companies and employees …………………………………..
to the Federal Government. There could also be a transfer of
federal, state, and local income tax revenue.
——————————————————————————————————————————————————–
[[Page 47153]]
——————————————————————————————————————————————————–
Source citation (RIA,
Category Effects preamble, etc.)
——————————————————————————————————————————————————–
Effects on state, local, and/or None; no significant impacts to national labor force or to the labor force of RIA.
tribal governments. individual states is expected. Possible loss of tax revenue.
Effects on small businesses……. None……………………………………………………………………… RFA.
Effects on wages……………… None……………………………………………………………………… RIA.
Effects on growth…………….. None……………………………………………………………………… RIA.
——————————————————————————————————————————————————–
III. Background and Discussion of Proposed Rule
Processing of Applications for Employment Authorization Documents
1. Elimination of 30-Day Processing Timeframe
Pursuant to 8 CFR 208.7, 274a.12(c)(8), and 274a.13(a)(2), pending
asylum applicants may request an EAD by filing an EAD application using
Form I-765. Under current regulations at 8 CFR 208.7(a)(1), USCIS must
adjudicate initial employment authorization requests under the (c)(8)
category within 30 days of when the applicant files the Form I-765.
The 30-day timeframe in 8 CFR 208.7(a)(1) was established more than 20
years ago, when the former Immigration and Naturalization Service
(INS) adjudicated EAD applications at local INS offices. EAD
applications are now adjudicated at USCIS Service Centers. As discussed
below, DHS believes that the 30-day timeframe is outdated, does not
account for the current volume of applications and no longer reflects
current operational realities. Increases in EAD applications for
pending asylum applicants have outpaced Service Center Operations
resources over the last twenty years. Additionally, the level of fraud
sophistication and the threat immigration-related national security
concerns posed today are more complex than they were 20 years ago.
Furthermore, changes in intake and document production to reduce fraud
and address threats to national security, as well as necessary vetting
to address such concerns, are not reflected in the current regulatory
timeframe. Thus, DHS proposes to remove this provision. See proposed 8
CFR 208.7(a)(1). This change is intended to ensure USCIS has sufficient
time to receive, screen, and process applications for an initial grant
of employment authorization, based on a pending asylum application.
This change would also reduce opportunities for fraud and protect the
security-related processes undertaken for each EAD application.
—————————————————————————
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 applicant, is not counted as part of the 30-day period. 8 CFR
208.7(a)(2).
See Rules and Procedures for Adjudication of Applications
for Asylum or Withholding of Deportation and for Employment
Authorization, 59 FR 62284 (Dec. 5, 1994); Inspection and Expedited
Removal of Aliens; Detention and Removal of Aliens; Conduct of
Removal Proceedings; Asylum Procedures, 62 FR 10312, 10337 (Mar. 6,
1997).
DHS recognizes the regulatory history for originally
promulgating this provision. See 62 FR at 10318 (one of the chief
purposes of the deadline was “to ensure that bona fide asylees are
eligible to obtain employment authorization as quickly as
possible.”); Rules and Procedures for Adjudication of Applications
for Asylum or Withholding of Deportation and for Employment
Authorization, 59 FR 14779, 14780 (Mar. 30, 1994) (proposed rule)
(the imposition of a 150-day waiting period before an asylum seeker
may submit an initial EAD application–30 days before the 180 asylum
clock runs–was done with an understanding that “[i]deally . . .
few applicants would ever reach the 150-day point.”); id.
(discussing selection of 150 days because it was a period “beyond
which it would not be appropriate to deny work authorization to a
person whose claim has not been adjudicated.”); see also 59 FR at
62290-91 (final rule) (weighing competing considerations, including,
among other things, ensuring the availability of work authorization
to legitimate applicants and limiting the burden of the employment
authorization process on overall adjudication workloads); 62 FR
10337 (Mar. 6, 1997) (retaining the 30-day timeframe following
enactment of the 180-day statutory waiting period). The existing 30-
day timeframe has become untenable notwithstanding its humanitarian
goals. However, for the reasons explained elsewhere in this
preamble, DHS believes it continues to meet the goals of the
underlying statutory scheme, such as by its return to processing
affirmative asylum applications on a “last in, first out” (LIFO)
basis.
DHS also proposes a technical change to this paragraph and
paragraph (c)(3), which would replace a reference to the former INS
with a reference to USCIS.
—————————————————————————
In addition, 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 provision of 8 CFR 208.7(a)(1). On July 26, 2018, the
court enjoined USCIS from further failing to adhere to the 30-day
deadline for adjudicating EAD applications. USCIS is working towards
compliance with the court order. Compliance with the court order places
an extraordinary strain on already strained agency resources, and USCIS
will not be able to sustain such a burden in the long-term without
adding additional agency resources. Thus, USCIS reiterates that it
cannot sustainably meet the 30-day timeframe for the reasons outlined
below, and is proposing removal of this provision.
DHS intends to grandfather into the 30-day adjudication timeframe
those class members who filed their EAD applications prior to the
effective date of any final rule that changes the 30-day adjudication
timeline.
Growth of Receipts and Backlog
The growth of asylum receipts along with the growing asylum backlog
has contributed to an increase in EAD applications for pending asylum
applicants that has surpassed available Service Center Operations
resources. As of March 12, 2018, the affirmative asylum backlog stood
at 317,395 applications and has been growing for several years. In
part, this is due to a continued growth in affirmative asylum filings
and historic increases in protection screenings at the border to which
significant resources had to be diverted. Two main factors contributing
to this backlog include: The diversion of resources away from the
affirmative asylum caseload to protection screening of border arrivals,
including credible fear and reasonable fear screenings, and a
subsequent increase in asylum application filings, especially by
Venezuelans, Central Americans, and unaccompanied alien children. For
instance, credible fear screening for aliens apprehended at or near the
U.S. border, see 8 CFR 208.30, increased to over 94,000 in fiscal year
(FY) 2016 from 36,000 in FY 2013. Asylum applications increased to over
100,000 in FY 2017 for the first time in 20 years. The USCIS Asylum
Division
received 44,453 affirmative asylum applications in FY 2013, 56,912 in
FY 2014, 84,236 in FY 2015, 115,888 in FY 2016, and 142,760 in FY
2017. The 221.15 percent increase of affirmative asylum receipts
over the span of five years has directly contributed to the increase in
(c)(8) EAD receipts. USCIS received 41,021 initial EAD applications
from individuals with pending asylum applications in FY 2013, 62,169 in
FY 2014, 106,030 in FY 2015, 169,970 in FY 2016, and 261,782 in FY
2017. USCIS also received 37,861 renewal EAD applications from
individuals with pending asylum applications in FY 2013, 47,103 in FY
2014, 72,559 in FY 2015, 128,610 in FY 2016, and 212,255 in FY 2017.
The increase in both initial and renewal EAD applications coupled with
the growing asylum backlog has grossly outpaced Service Center
Operations resources, specifically because USCIS has had to reallocate
resources from other product lines to adjudicate these EAD
applications. Thus, as demonstrated in Section IV below, the
increase in both asylum applications and EAD applications for those
with pending asylum applications has added to the backlog and led to a
delay in adjudication times.
—————————————————————————
An affirmative asylum application filed by a principal
asylum applicant may include a dependent spouse and children, who
may also file their own EAD applications based on the pending asylum
application.
The USCIS Refugee, Asylum, and International Operations
Parole System provided this data on March 15, 2018.
These numbers only address the affirmative asylum
applications that fall under the jurisdiction of USCIS’ Asylum
Division. Defensive asylum applications, filed with the Department
of Justice’s (DOJ) Executive Office for Immigration Review (EOIR)
are also eligible for (c)(8) EADs. There is an ongoing backlog of
pending defensive asylum cases at EOIR, which as of late 2017 had
approximately 650,000 cases pending. See Memorandum from Attorney
General Jefferson B. Sessions III to the Executive Office for
Immigration Review, Renewing Our Commitment to the Timely and
Efficient Adjudication of Immigration Cases to Serve the National
Interest (Dec. 5, 2017). The defensive asylum backlog at EOIR also
contributes to an increase in both initial and renewal (c)(8) EAD
applications.
In response to the growing backlog and court-ordered
requirements in Rosario v. USCIS, No. C15-0813JLR (W.D. Wash. July
26, 2018), Service Center Operations re-allocated available officer
resources to try to meet the 30-day processing time for initial EAD
applications, causing a strain across other Service Center
Operations product lines.
—————————————————————————
Changes in Intake and Document Production
Additionally, at the time the 30-day timeframe was established,
EADs, which were formerly known as Forms I-688B, were produced by local
offices that were equipped with stand-alone machines for such purposes.
While decentralized card production resulted in immediate and
customized adjudications for the public, the cards produced did not
contain state-of-the-art security features, and they were susceptible
to tampering and counterfeiting. Such deficiencies became increasingly
apparent as the United States faced new and increasing threats to
national security and public safety.
In response to these concerns, the former INS and DHS made
considerable efforts to upgrade application procedures and leverage
technology in order to enhance integrity, security, and efficiency in
all aspects of the immigration process. For example, to combat the
document security problem discussed above, the former INS took steps to
centralize application filing locations and card production. By 2006,
DHS fully implemented these centralization efforts.
—————————————————————————
See USCIS Memorandum from Michael Aytes, Elimination of
Form I-688B, Employment Authorization Card (Aug. 18, 2006). In
January 1997, the former INS began issuing new, more secure EADs
from a centralized location, and assigned a new form number (I-766)
to distinguish it from the less secure, locally produced EADs (Forms
I-688B). DHS stopped issuing Form I-688B EADs from local offices
altogether in 2006.
—————————————————————————
In general, DHS now requires applicants to file Applications for
Employment Authorization at a USCIS Lockbox, which is a Post Office
box used to accelerate the processing of applications by electronically
capturing data and receiving and depositing fees. If DHS ultimately
approves the application, a card order is sent to a card production
facility, where a tamper-resistant card reflecting the specific
employment authorized category is produced and then mailed to the
applicant. While the 30-day timeframe may have made sense when local
offices processed applications and produced the cards, DHS believes
that the intervening changes discussed above now mean that a 30-day
timeframe is not reflective of current processes.
—————————————————————————
Asylum applicants, however, make their request for
employment authorization directly on the Application for Asylum and
Withholding of Removal, Form I-589, and need not file a separate
Application for Employment Authorization following a grant of
asylum. If they are requesting employment authorization based on
their pending asylum application, they must file a separate request
for employment authorization on Form I-765.
USCIS, Field Office FAQs (May 2, 2013), <a href=”https://www.uscis.gov/about-us/find-uscis-office/field-offices/field-office-faqs/faq/what-lockbox”>https://www.uscis.gov/about-us/find-uscis-office/field-offices/field-office-faqs/faq/what-lockbox</a>.
—————————————————————————
Fraud, Criminality, and National Security Considerations
DHS has been unable to meet the 30-day processing timeframe in
certain cases due to changes to the agency’s vetting procedures and
increased background checks, which resulted from the Government’s
response to September 11, 2001 terror attacks (“9/11”). Information
obtained from such checks may affect eligibility for an initial EAD
based on a pending asylum application. Specifically, the Immigration
and Naturalization Service (INS), followed by U.S. Citizenship and
Immigration Services (USCIS), made multiple changes to enhance the
coverage of security checks, detect applicants who pose risks to
national security and public safety, deter benefits fraud, and ensure
that benefits are granted only to eligible applicants, in response to
9/11.
These changes included the creation of the Application Support
Centers to collect applicant fingerprints, IBIS checks for all
applications and FBI name check screening. In May 2004, USCIS created
the Office of Fraud Detection and National Security (FDNS) to provide
centralized support and policy guidance for security checks and anti-
fraud operations. In August 2004, the Homeland Security
Presidential Directive (HSPD) 11, Comprehensive Terrorist-Related
Screening Procedures, directed DHS to
—————————————————————————
In 2010, FDNS was promoted to a Directorate, which elevated
the profile and brought operational improvements to this important
work. See USCIS, Fraud Detection and National Security Directorate,
<a href=”https://www.uscis.gov/about-us/directorates-and-program-offices/fraud-detection-and-national-security/fraud-detection-and-national-security-directorate”>https://www.uscis.gov/about-us/directorates-and-program-offices/fraud-detection-and-national-security/fraud-detection-and-national-security-directorate</a>.
HSPD11, Comprehensive Terrorist-Related Screening
Procedures (Aug. 27, 2004), available at <a href=”https://fas.org/irp/offdocs/nspd/hspd-11.html”>https://fas.org/irp/offdocs/nspd/hspd-11.html</a>.
incorporate security features . . . that resist circumvention to the
greatest extent possible [and consider] information individuals must
present, including, as appropriate, the type of biometric
identifier[s] or other form of identification or identifying
—————————————————————————
information to be presented, at particular screening opportunities.
Since 9/11, USCIS implemented changes in the collection of
biographic and biometric information for document production related to
immigration benefits, including the Application for Employment
Authorization (Form I-765). As part of the Employment Authorization
benefit adjudications process since the inception of FDNS, USCIS must
verify the identity of the individual applying for an EAD and determine
whether any criminal, national security or fraud concerns exist. Under
the current national security and fraud vetting guidelines, when an
adjudicator determines that a criminal, national security and/or fraud
concern exists, the case is forwarded to the Background Check Unit
(BCU) or Center Fraud Detection Office (CFDO) for additional
vetting. Once the vetting
is completed and a finding is made, the adjudicator uses the
information provided from BCU and/or CFDO to determine whether the
individual is eligible to receive the requested benefit.
—————————————————————————
USCIS conducts background checks on individuals applying
for an immigration benefit because United States immigration laws
and regulations preclude USCIS from granting immigration benefits to
individuals with certain criminal or administrative violations. See,
e.g., 8 CFR 208.7(a)(1) (aggravated felony bar to employment
authorization for asylum applicants).
—————————————————————————
These security procedures implemented post 9/11 and well after the
establishment of the 30-day adjudication timeframe in 1994, coupled
with sudden increases in applications, have extended adjudication and
processing times for cases with potential eligibility issues discovered
during background checks outside of the current regulatory 30-day
timeframe. It would be contrary to USCIS’ core missions and undermine
the integrity of the documents issued if USCIS were to reduce or
eliminate vetting procedures solely to meet a 30-day deadline
established decades ago.
In sum, DHS is proposing to eliminate the 30-day processing
provision at 8 CFR 208.7(a)(1) because of the increased volume of
affirmative asylum applications and accompanying Applications for
Employment Authorization, over two decades of changes in intake and EAD
document production, and the need to appropriately vet applicants for
fraud and national security concerns. DHS believes that the 30-day
timeframe described in 8 CFR 208.7(a)(1) does not provide sufficient
flexibility for DHS to meet its core missions of enforcing and
administering our immigration laws and enhancing security.
Case processing time information may be found at <a href=”https://egov.uscis.gov/processing-times/”>https://egov.uscis.gov/processing-times/</a>, and asylum applicants can access the
web page for realistic processing times as USCIS regularly updates this
information.
DHS welcomes public comment on all aspects of this proposal,
including alternate suggestions for regulatory amendments to the 30-day
processing timeframe not already discussed.
2. Removal of the 90-Day Filing Requirement
DHS proposes to remove 8 CFR 208.7(d), because 8 CFR 274a.13(d), as
amended in 2017, serves the same policy purpose as 8 CFR 208.7(d), and
is arguably at cross-purposes with such provision. Under the 2017 AC21
Rule, certain individuals eligible for employment authorization under
designated categories may have the validity of their EADs extended for
up to 180 days from the document’s expiration date if they file an
application to renew their EAD before the EAD’s expiration date. See 8
CFR 274a.13(d)(1). Specifically, the 2017 AC21 Rule automatically
extends the EADs falling within the designated categories as long as
(1) the individual filed the request to renew his or her EAD before its
expiration date, (2) the individual is requesting renewal based on the
same employment authorization category under which the expiring EAD was
granted, and (3) the individual’s request for renewal is based on a
class of aliens whose eligibility to apply for employment authorization
continues even after the EAD expires, and is based on an employment
authorization category that does not first require USCIS to adjudicate
an underlying application, petition, or request. Id. As noted in the
preamble to the 2017 AC21 Rule, and as currently reflected on the USCIS
website, the automatic extension amendment applies to individuals who
have properly filed applications for asylum. See id.; 8 CFR
274a.12(c)(8); 81 FR 82398 at 82455-56 n.98.
—————————————————————————
See also USCIS, Automatic Employment Authorization Document
(EAD) Extension, <a href=”https://www.uscis.gov/working-united-states/automatic-employment-authorization-document-ead-extension”>https://www.uscis.gov/working-united-states/automatic-employment-authorization-document-ead-extension</a>.
—————————————————————————
Because the 2017 AC21 Rule effectively prevents gaps in work
authorization for asylum applicants with expiring EADs, DHS finds it
unnecessary to continue to require that pending asylum applicants file
for EAD renewal at least 90 days before the EAD’s scheduled expiration.
The 2017 AC21 Rule amendment significantly mitigates the risk of gaps
in employment authorization and required documentation for eligible
individuals, providing consistency for employers who are responsible
for verifying employment authorization. An additional 90-day
requirement is unnecessary.
DHS implemented the 180-day automatic extension for eligible
individuals, including pending asylum applicants for renewal EADs, in
accordance with the 2017 AC21 Rule. As a result, the subject EADs are
already automatically extended, even if the renewal EAD application has
not been submitted at least 90 days in advance of its expiration. DHS
therefore proposes to make a clarifying amendment to delete subsection
(d) from 8 CFR 208.7. Under this change, pending asylum applicants
would not need to submit Form I-765 renewal applications at least 90
days prior to the employment authorization expiration in order for the
employment authorization to be renewed. Pending asylum applicants would
be able to submit Form I-765 renewal applications up to 180 days prior
to the employment authorization expiration, as recommended by USCIS on
its website, and the EAD would be automatically extended for up to 180
days from the date of expiration. This proposed change would reduce
confusion regarding EAD renewal application requirements for pending
asylum applicants and ensure the regulatory text reflects current DHS
policy and regulations under the 2017 AC21 Rule. DHS welcomes public
comment on all aspects of this proposal.
—————————————————————————
See 2017 AC21 Rule, 81 FR at 82401 (“Specifically, the
rule automatically extends the employment authorization and validity
of existing EADs issued to certain employment-eligible individuals
for up to 180 days from the date of expiration, as long as: (1) A
renewal application is filed based on the same employment
authorization category as the previously issued EAD (or the renewal
application is for an individual approved for Temporary Protected
Status (TPS) whose EAD was issued under 8 CFR 274a.12(c)(19)); (2)
the renewal application is timely filed prior to the expiration of
the EAD (or, in accordance with an applicable Federal Register
notice regarding procedures for renewing TPS-related employment
documentation) and remains pending; and (3) the individual’s
eligibility for employment authorization continues beyond the
expiration of the EAD and an independent adjudication of the
underlying eligibility is not a prerequisite to the extension of
employment authorization”); USCIS, Employment Authorization
Document, <a href=”https://www.uscis.gov/greencard/employment-authorization-document”>https://www.uscis.gov/greencard/employment-authorization-document</a> (“Generally, you should not file for a renewal EAD more
than 180 days before your original EAD expires.”).
—————————————————————————
3. Corresponding U.S. Department of Justice (DOJ) Regulations
This proposed rule would remove (1) the 30-day processing provision
for initial employment authorization applications for those with
pending asylum applications, and (2) the 90-day timeframe for receipt
of an application to renew employment authorization. See 8 CFR
208(a)(1), and (d).
Currently, these provisions can be found in two parallel sets of
regulations: Regulations under the authority of DHS are contained in 8
CFR part 208; and regulations under the authority of the Department of
Justice (DOJ) are contained in 8 CFR part 1208. Each set of regulations
contains substantially similar provisions regarding employment
authorization, and each articulates both the 30-day provision for DHS
adjudications and the 90-day timeframe for renewal applications before
DHS. Compare 8 CFR 208.7(a)(1) and (d), with 8 CFR 1208.7(a)(1) and
(d).
This proposed rule would revise only the DHS regulations at 8 CFR
208.7. Notwithstanding the language of the parallel DOJ regulations in
8 CFR 1208.7, as of the effective date of a final rule, the revised
language of 8 CFR 208.7(a)(1) and removal of 8 CFR 208.7(d) would be
binding on DHS and its adjudications. DHS would not be
bound by the 30-day provision of the DOJ regulations at 8 CFR
1208.7(a)(1). DOJ has no authority to adjudicate employment
authorization applications. DHS has been in consultation with DOJ on
this proposed rule, and DOJ may issue conforming changes at a later
date. DHS welcomes public comment on this matter.
IV. Statutory and Regulatory Requirements
A. Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review)
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if a
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This proposed rule has been designated as a “significant
regulatory action” and it is economically significant, since it meets
the $100 million threshold under section 3(f) of Executive Order 12866.
Accordingly, the Office of Management and Budget (OMB) has reviewed
this proposed regulation.
1. Summary
DHS proposes to remove the requirement to adjudicate initial EAD
applications for pending asylum applicants within 30 days. In FY 2017,
prior to the Rosario v. USCIS court order, the adjudication processing
times for initial Form I-765 under the Pending Asylum Applicant
category exceeded the regulatory set timeframe of 30 days more than
half the time. However, USCIS adjudicated approximately 78 percent of
applications within 60 days. In response to the Rosario v. USCIS
litigation and to comply with the court order, USCIS continues to
resource the adjudication of pending asylum EAD applications. USCIS has
dedicated as many resources as practicable to these adjudications, but
continues to face an asylum application backlog, which in turn
increases the numbers of applicants eligible for pending asylum EADs.
However, this reallocation of resources is not a long-term sustainable
solution because USCIS has many competing priorities and many time-
sensitive adjudication timeframes. Reallocating resources in the long-
term is not sustainable due to work priorities in other product lines.
USCIS could hire more officers, but that would not immediately and in
all cases shorten adjudication timeframes because (1) additional time
would be required to onboard and train new employees, and (2) for
certain applications, additional time is needed to fully vet an
applicant, regardless of staffing levels. In addition, there is
currently no fee for asylum applications or the corresponding initial
EAD applications, and the cost of adjudication is covered by fees paid
by other benefit requesters. USCIS is uncertain of the actual cost
impacts of hiring additional adjudicators to process these EAD
applications at this time. If the backlog dissipates in the future,
USCIS may seek to redistribute adjudication resources.
As a primary goal, USCIS seeks to adequately vet applicants and
adjudicate applications as quickly and efficiently as possible. This
proposed rule may delay the ability for some initial applicants whose
EAD processing is delayed beyond the 30-day regulatory timeframe to
work.
The impacts of this rule are measured against a baseline. This
baseline is the best assessment of the way the world would look absent
this proposed action. For this proposed action, USCIS assumes that in
the absence of this proposed rule the baseline amount of time that
USCIS would take to adjudicate would be 30 days. USCIS also assumes
that if this proposed rule is adopted, adjudications will align with
DHS processing times achieved in FY 2017 (before the Rosario v. USCIS
court order). This is our best estimate of what would occur if the
proposed rule is adopted. USCIS believes the FY 2017 timeframes are
sustainable and USCIS intends to meet these timeframes if the proposed
rule is adopted. Therefore, USCIS is analyzing the impacts of this rule
by comparing the costs and benefits of adjudicating initial EAD
applications for pending asylum applicants within 30 days compared to
the actual time it took to adjudicate these EAD applications in FY
2017.
The impacts of this rule would include both distributional effects
(which are transfers) and costs. The distributional impacts would
fall on the asylum applicants who would be delayed in entering the U.S.
labor force. The distributional impacts (transfers) would be in the
form of lost compensation (wages and benefits). A portion of this lost
compensation might be transferred from asylum applicants to others that
are currently in the U.S. labor force, possibly in the form of
additional work hours or overtime pay. A portion of the impacts of this
rule would also be borne by companies that would have hired the asylum
applicants had they been in the labor market earlier but were unable to
find available workers. These companies would incur a cost, as they
would be losing the productivity and potential profits the asylum
applicant would have provided had the asylum applicant been in the
labor force earlier. 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. However, if companies cannot find reasonable substitutes for the
labor the asylum applicants would have provided, this rule would
primarily be a cost to these companies through lost productivity and
profits. USCIS uses the lost compensation 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
asylum applicants could range from $255.88 million to $774.76 million
annually depending on the wages the asylum applicant would have earned.
The ten-year total discounted lost compensation to asylum applicants at
3 percent could range from $2,182.68 million to $6,608.90 million and
at 7 percent could range from $1,797.17 million to $5,441.62 million
(years 2019-2028). USCIS recognizes that the impacts of this proposed
rule could be overstated if the provisions in the broader asylum EAD
NPRM are finalized as proposed. Specifically, the broader asylum EAD
NPRM would limit
or delay eligibility for employment authorization for certain asylum
applicants. Accordingly, if the population of aliens is less than
estimated as a result of the broader asylum EAD rule, the estimated
impacts of this rule could be overstated because the population
affected may be lower than estimated in this rule.
—————————————————————————
Transfer payments are monetary payments from one group to
another that do not affect total resources available to society. See
OMB Circular A-4 pages 14 and 38 for further discussion of transfer
payments and distributional effects. Circular A-4 is available at:
<a href=”https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf”>https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf</a>.
—————————————————————————
In instances where a company cannot transfer additional work onto
current employees and cannot hire replacement labor for the position
the asylum applicant would have filled, USCIS acknowledges that delays
may result in tax losses to the government. It is difficult to quantify
income tax losses because individual tax situations vary widely
but USCIS estimates the potential loss to other employment tax
programs, namely Medicare and social security which have a combined tax
rate of 7.65 percent (6.2 percent and 1.45 percent, respectively).
With both the employee and employer not paying their respective portion
of Medicare and social security taxes, the total estimated tax loss for
Medicare and social security is 15.3 percent. Lost wages ranging
from $255.88 million to $774.76 million would result in employment tax
losses to the government ranging from $39.15 million to $118.54
million. Adding the lost compensation to the tax losses provide
total monetized estimates of this proposed rule that range from $275.46
million to $834.03 million annually in instances where a company cannot
hire replacement labor for the position the asylum applicant would have
filled. Again, depending on the circumstances of the employee,
there could be additional federal income tax losses not estimated here.
There may also be state and local income tax losses that would vary
according to the jurisdiction.
—————————————————————————
See More than 44 percent of Americans pay no federal income
tax (September 16, 2018) available at <a href=”https://www.marketwatch.com/story/81-million-americans-wont-pay-any-federal-income-taxes-this-year-heres-why-2018-04-16″>https://www.marketwatch.com/story/81-million-americans-wont-pay-any-federal-income-taxes-this-year-heres-why-2018-04-16</a>.
The various employment taxes are discussed in more detail
at <a href=”https://www.irs.gov/businesses/small-businesses-self-employed/understanding-employment-taxes”>https://www.irs.gov/businesses/small-businesses-self-employed/understanding-employment-taxes</a>. See IRS Publication 15, Circular E,
Employer’s Tax Guide for specific information on employment tax
rates. <a href=”https://www.irs.gov/pub/irs-pdf/p15_18.pdf”>https://www.irs.gov/pub/irs-pdf/p15_18.pdf</a>.
Calculation: (6.2 percent social security + 1.45 percent
Medicare) x 2 employee and employer losses = 15.3 percent total
estimated tax loss to government.
Calculations: Lower bound lost wages $255.88 million x 15.3
percent estimated tax rate = $39.15 million. Upper bound lost wages
$774.76 million x 15.3 percent estimated tax rate = $118.54 million.
Calculation: Lower bound lost wages $255.88 million + lower
bound tax losses $19.58 million = total lower bound cost $275.46
million.
Upper bound lost wages $774.76 million + upper bound tax losses
$59.27 million= total upper bound cost $834.03 million.
—————————————————————————
This proposed rule would result in reduced opportunity costs to the
Federal Government. Since Rosario compelled USCIS to comply with the
30-day provision in FY 2018, USCIS has redistributed its adjudication
resources to work up to full compliance. If the 30-day timeframe is
removed, these redistributed resources could be reallocated,
potentially reducing delays in processing of other applications and
avoiding costs associated with hiring additional employees. USCIS has
not estimated these avoided costs. Additionally, USCIS does not
anticipate that removing the separate 90-day EAD filing requirement
would result in any costs to the Federal Government.
The proposed rule would benefit USCIS by allowing it to operate
under long-term sustainable case processing times for initial EAD
applications for pending asylum applicants, to allow sufficient time to
address national security and fraud concerns, and to maintain
technological advances in document production and identify
verification. Applicants would rely on up-to-date processing times,
which will provide accurate expectations of adjudication times. The
technical change to remove the 90-day filing requirement would reduce
confusion regarding EAD renewal requirements for pending asylum
applicants and ensure the regulatory text reflects current DHS policy
and regulations under DHS’s final 2017 AC21 Rule.
—————————————————————————
In the 2017 AC21 final rule, 81 FR 82398, USCIS amended 8
CFR 274a.13 to allow for the automatic extension of existing, valid
EADs for up to 180 days for renewal applicants falling within
certain EAD categories as described in the regulation and designated
on the USCIS website. See 8 CFR 274a.13(d). Among those categories
is asylum applicants. To benefit from the automatic extension, an
applicant falling within an eligible category must (1) properly file
his or her renewal request for employment authorization before its
expiration date, (2) request renewal based on the same employment
authorization category under which the expiring EAD was granted, and
(3) will continue to be authorized for employment based on his or
her status, even after the EAD expires, and is applying for renewal
under a category that does not first require USCIS to adjudicate an
underlying application, petition, or request.
—————————————————————————
Table 4 provides a detailed summary of the regulatory changes and
the expected impacts of this proposed rule.
Table 4–Summary of Proposed Provisions and Impacts
—————————————————————————————————————-
Proposed change to Expected costs and transfers from Expected benefits from proposed
Current provision provision proposed provision provision
—————————————————————————————————————-
USCIS has a 30-day USCIS proposes to Quantitative: Quantitative:
EAD adjudication eliminate the This provision could delay the Not estimated.
timeframe for provisions for ability of some initial applicants
applicants who the 30-day to work. A portion of the impacts
have pending adjudication of the rule would be the lost
asylum timeframe and compensation transferred from
applications. issuance of EADs asylum applicants to others
for pending currently in the workforce,
asylum possibly in the form of additional
applicants. work hours or overtime pay. A
portion of the impacts of the rule
would be lost productivity costs
to companies that would have hired
asylum applicants had they been in
the labor market, but who were
unable to find available workers.
USCIS uses the lost compensation
to asylum applicants as a measure
of these distributional impacts
(transfers) and as a proxy for
businesses’ cost for lost
productivity. The lost
compensation due to processing
delays could range from $255.88
million to $774.76 million
annually. The total ten-year
discounted lost compensation for
years 2019-2028 averages $4,395.79
million and $3,619.40 million at
discount rates of 3 and 7 percent,
respectively. USCIS does not know
the portion of overall impacts of
this rule that are transfers or
costs. Lost wages ranging from
$255.88 million to $774.76 million
would result in employment tax
losses to the government ranging
from $39.15 million to $118.54
million.
Qualitative: Qualitative:
There may also be additional DHS would be able to operate
distributional impacts for under long-term sustainable
those in an applicant’s support case processing times for
network–if applicants are initial EAD applications for
unable to work legally, they pending asylum applicants, to
may need to rely on resources allow sufficient time to
from family members, friends, address national security and
non-profits, or government fraud concerns, and to maintain
entities for support. technological advances in
document production and
identity verification without
having to add any resources.
This rule would result in
reduced opportunity costs to
the Federal Government. If the
30-day timeframe is removed,
USCIS could reallocate the
resources it redistributed to
comply with the 30-day
provision, potentially reducing
delays in processing of other
applications and avoiding costs
associated with hiring
additional employees.
Applicants can USCIS proposes to Quantitative: Qualitative:
currently submit remove the 90-day None. None.
a renewal EAD submission Quantitative: Qualitative:
application 90 requirement for None. Applicants–
days before the renewal EAD <bullet> Reduces confusion
expiration of applications. regarding EAD renewal
their current requirements. Some confusion may
EAD. nonetheless remain if applicants
consult outdated versions of
regulations or inapplicable DOJ
regulations.
DHS/USCIS–
<bullet> The regulations would
be updated to match those of
other EAD categories.
—————————————————————————————————————-
As previously discussed, USCIS does not know the portion of overall
impacts of this rule that are transfers or costs, but estimates that
the maximum monetized impact of this rule from lost compensation is
$774.76 million annually. If all companies are able to easily find
reasonable labor substitutes for the positions the asylum applicants
would have filled, they will bear little or no costs, so $774.76
million will be transferred from asylum applicants to workers currently
in the labor force or induced back into the labor force (we assume no
tax losses as a labor substitute was found). Conversely, if companies
are unable to find reasonable labor substitutes for the position the
asylum applicant would have filled then $774.76 million is the
estimated maximum monetized cost of the rule and $0 is the estimated
minimum in monetized transfers from asylum applicants to other workers.
In addition, under this scenario, because the jobs would go unfilled
there would be a loss of employment taxes to the Federal Government.
USCIS estimates $118.54 million as the maximum decrease in employment
tax transfers from companies and employees to the Federal Government.
The two scenarios described above represent the estimated endpoints for
the range of monetized impacts resulting from this rule, and are
summarized in Table 5 below.
Table 5–Summary of Range of Monetized Impacts
——————————————————————————————————————————————————–
Scenario: No replacement labor Scenario: All asylum
found for asylum applicants applicants replaced with other Primary (half
Category Description ——————————– workers of the
——————————– highest high
Low wage High wage Low wage High wage for each row)
——————————————————————————————————————————————————–
Cost…………………………… Lost compensation used as proxy $255.88 $774.76 $0.00 $0.00 $387.38
for lost productivity to
companies.
Transfer……………………….. Compensation transferred from 0.00 0.00 255.88 774.76 387.38
asylum applicants to other
workers.
Transfer……………………….. Lost employment taxes paid to the 39.15 118.54 0.00 0.00 59.27
Federal Government.
——————————————————————————————————————————————————–
As required by OMB Circular A-4, Table 6 presents the prepared A-4
accounting statement showing the costs and transfers associated with
this proposed regulation. For the purposes of the A-4 accounting
statement below, USCIS uses the mid-point as the primary estimate for
both costs and transfers because the total monetized impact of the rule
from lost compensation cannot exceed $774.76 million and as described,
USCIS is unable to apportion the impacts between costs and transfers.
Likewise, USCIS uses a mid-point for the reduction in employment tax
transfers from companies and employees to the Federal Government when
companies are unable to easily find replacement workers. USCIS notes
that there may be some unmonetized costs such as additional opportunity
costs to employers that would not be captured in these monetized
estimates.
Table 6–OMB A-4 Accounting Statement ($ Millions, 2017)
[Period of analysis: 2019-2028]
——————————————————————————————————————————————————–
——————————————————————————————————————————————————–
Category Primary estimate Minimum Maximum Source citation (RIA, preamble, etc.)
estimate estimate
——————————————————————————————————————————————————–
Benefits
——————————————————————————————————————————————————–
Monetized Benefits……………………… (7%) N/A N/A N/A RIA.
(3%) N/A N/A N/A RIA.
——————————————————————————————————————————————————–
Annualized quantified, but un-monetized, 0 0 0 RIA.
benefits.
——————————————————————————————————————————————————–
Unquantified Benefits…………………… Applicants would benefit from reduced confusion over renewal RIA.
requirements. DHS would be able to operate under sustainable
case processing times for initial EAD applications for pending
asylum applicants, to allow sufficient time to address
national security and fraud concerns, and to maintain
technological advances in document production and identity
verification.
——————————————————————————————————————————————————–
Costs
——————————————————————————————————————————————————–
Annualized monetized costs (discount rate in (7%) $387.38 $0 $774.76 RIA.
parenthesis).
(3%) $387.38 $0 $774.76 RIA.
——————————————————————————————————————————————————–
Annualized quantified, but un-monetized, N/A N/A N/A RIA.
costs.
——————————————————————————————————————————————————–
Qualitative (unquantified) costs…………. In cases where companies RIA.
cannot find reasonable
substitutes for the labor the
asylum applicants would have
provided, affected companies
would also lose profits from
the lost productivity. In all
cases, companies would incur
opportunity costs by having to
choose the next best
alternative to immediately
filling the job the pending
asylum applicant would have
filled. There may be
additional opportunity costs
to employers such as
additional search costs.
——————————————————————————————————————————————————–
Transfers
——————————————————————————————————————————————————–
Annualized monetized transfers: “on budget” (7%) $0 $0 $0 RIA.
(3%) $0 $0 $0
——————————————————————————————————————————————————–
From whom to whom?……………………… N/A N/A.
——————————————————————————————————————————————————–
Annualized monetized transfers: “off- (7%) $387.38 $0 $774.76 RIA.
budget”.
(3%) $387.38 $0 $774.76
——————————————————————————————————————————————————–
From whom to whom?……………………… From asylum applicants to workers in the U.S. labor force or RIA.
induced into the U.S. labor force. Additional distributional
impacts from asylum applicant to the asylum applicant’s
support network that provides for the asylum applicant while
awaiting an EAD.
——————————————————————————————————————————————————–
Annualized monetized transfers: “off- (7%) $59.27 $0 $118.54 RIA.
budget”.
(3%) $59.27 $0 $118.54
——————————————————————————————————————————————————–
From whom to whom?……………………… A reduction in employment taxes from companies and employees …………………………………..
to the Federal Government. There could also be a transfer of
federal, state, and local income tax revenue.
——————————————————————————————————————————————————–
[[Page 47160]]
——————————————————————————————————————————————————–
Source citation (RIA,
Category Effects preamble, etc.)
——————————————————————————————————————————————————–
Effects on state, local, and/or None; no significant impacts to national labor force or to the labor force of RIA.
tribal governments. individual states is expected. Possible loss of tax revenue.
Effects on small businesses……. None……………………………………………………………………… RFA.
Effects on wages……………… None……………………………………………………………………… RIA.
Effects on growth…………….. None……………………………………………………………………… RIA.
——————————————————————————————————————————————————–
2. Background and Purpose of the Proposed Rule
Aliens who are arriving or physically present in the United States
generally may apply for asylum in the United States irrespective of
their immigration status. To establish eligibility for asylum, an
applicant must demonstrate, among other things, that they have suffered
past persecution or have a well-founded fear of future persecution on
account of race, religion, nationality, membership in a particular
social group, or political opinion. Applicants, with limited
exceptions, are required to apply for asylum within one year of their
last arrival in the United States. USCIS does not currently charge
filing fees for certain humanitarian benefits, including asylum
applications and applications concurrently filed with asylum
applications. Asylum applicants whose cases remain pending without a
decision for at least 150 days are eligible to apply for employment
authorization, unless any delays are caused by the applicant (such as a
request to reschedule an interview). 8 CFR 208.7, 274a.12(c)(8),
274a.13(a)(2). Applicants who are granted asylum (“asylees”) may work
immediately. See INA 208(c)(1)(B), 8 U.S.C. 1158(c)(1)(B). An asylee
may choose to obtain an EAD for convenience or identification purposes,
but this documentation is not necessary for an asylee to work. 8 CFR
274a.12(a)(5).
Currently, DHS regulations at 8 CFR 208.7(a)(1) provide that USCIS
adjudicates a Form I-765 within 30 days of receiving a properly filed
application from a pending asylum applicant. Asylum applicants must
wait 150 days from the time of filing the asylum application before
they can file a Form I-765. USCIS cannot grant employment authorization
until the applicant has accumulated a total of 180 days, not including
any delays caused or requested by the applicant, meaning the
applicant’s asylum case has been pending for a total of 180 days. 8 CFR
208.7(a)(1)-(2). This is known as the 180-Day Asylum EAD clock. If
USCIS approves the Form I-765, USCIS mails an EAD according to the
mailing preferences indicated by the applicant. If USCIS denies the
Form I-765, the agency sends a written notice to the applicant
explaining the basis for denial.
—————————————————————————
See The 180-Day Asylum EAD Clock Notice (May 9, 2017)
<a href=”https://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/Asylum_Clock_Joint_Notice_-_revised_05-10-2017.pdf”>https://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/Asylum_Clock_Joint_Notice_-_revised_05-10-2017.pdf</a>.
—————————————————————————
However, if USCIS requires additional documentation from the
applicant before a decision can be made, USCIS sends a request for
evidence (RFE) and the 30-day processing timeframe for processing a
Form I-765 is paused until additional documentation is received. Once
USCIS receives all requested information in response to the RFE, the
30-day timeframe continues from the point at which it stopped. In some
instances, applications may require additional vetting by the
Background Check Unit (BCU) and the Center Fraud Detection Operations
(CFDO), for instance, to verify an applicant’s identity. The 30-day
timeframe does not stop in these situations, though these cases may
take longer than 30 days to process. USCIS would make a decision only
after all eligibility and background checks relating to the EAD
application have been completed.
DHS considers the 30-day adjudication timeframe to be outdated, as
it no longer reflects current DHS operational realities. In the 20-plus
years since the timeframe was established, there has been a shift to
centralized processing as well as increased security measures, such as
the creation of tamper-resistant EAD cards. These measures reduce
opportunities for fraud but can require additional processing time,
especially as filing volumes remain high. By eliminating the 30-day
provision, DHS would be able to maintain accurate case processing times
for initial EAD applications for pending asylum applicants since, prior
to the Rosario v. USCIS court order, it was not meeting the 30-day
regulatory timeframe most of the time (53 percent), to address national
security and fraud concerns for those applications that require
additional vetting through RFEs or referrals to BCU and/or CFDO, and to
maintain technological advances in document production and identity
verification that USCIS must fulfill as a part of its core mission
within DHS such as the centralized production and creation of tamper-
resistant cards.
As noted above, the need for this rule results in part from the
resource burden associated with adjudicating, within the 30-day
adjudication timeframe, a large number of initial Forms I-765 under the
Pending Asylum Applicant category. The large number of applications
results from a range of factors, such as recent growth in USCIS’s
asylum backlog, which USCIS continues to address through a number of
different measures.
For example, in an effort to stem the growth of the agency’s asylum
backlog, USCIS returned to processing affirmative asylum applications
on a “last in, first out” (LIFO) basis. Starting January 29, 2018,
USCIS began prioritizing the most recently filed affirmative asylum
applications when scheduling asylum interviews. The former INS first
established this interview scheduling approach as part of asylum
reforms implemented in January 1995 and it remained in place until
December 2014. USCIS has returned to this approach in order to deter
individuals from using asylum backlogs solely as a means to obtain
employment authorization by filing frivolous, fraudulent or otherwise
non-meritorious asylum applications. Giving priority to recent filings
allows USCIS to promptly adjudicate asylum applications.
—————————————————————————
USCIS now schedules asylum interviews based on three
priority levels. First priority: Applications scheduled for an
interview, but the interview had to be rescheduled at the
applicant’s request or the needs of USCIS. Second priority:
Applications pending 21 days or less. Third priority: All other
pending affirmative asylum applications, which will be scheduled for
interviews starting with newer filings and working back towards
older filings. See Affirmative Asylum Interview Scheduling (Jan. 26,
2018), available at <a href=”https://www.uscis.gov/humanitarian/refugees-asylum/asylum/affirmative-asylum-interview-scheduling”>https://www.uscis.gov/humanitarian/refugees-asylum/asylum/affirmative-asylum-interview-scheduling</a>.
—————————————————————————
Another possible effect of reinstating LIFO is that in the future,
fewer affirmative asylum applications would remain pending before USCIS
for 150 days. However, the majority of asylum
applications filed with USCIS have been referred to the Department of
Justice Executive Office for Immigration Review (EOIR) for
consideration of the asylum application by an immigration judge. In FY
2017, 53 percent of asylum filings processed by USCIS resulted in a
referral to an immigration judge. These applicants may be eligible
to apply for an initial EAD under the (c)(8) category once the Asylum
EAD Clock reaches 150 days. USCIS anticipates updating its data in the
analysis accompanying the final rule. If this and other reforms are
successful, such updated data may reflect a relative reduction in
application volumes.
—————————————————————————
See Notes from Previous Engagements, Asylum Division
Quarterly Stakeholder Meeting (Feb. 7, May 2, Aug. 11, and Nov. 3,
2017), <a href=”https://www.uscis.gov/outreach/notes-previous-engagements?topic_id=9213&field_release_date_value%5Bvalue%5D%5Bmonth%5D=&field_release_date_value_1%5Bvalue%5D%5Byear%5D=&multiple=&items_per_page=10″>https://www.uscis.gov/outreach/notes-previous-engagements?topic_id=9213&field_release_date_value%5Bvalue%5D%5Bmonth%5D=&field_release_date_value_1%5Bvalue%5D%5Byear%5D=&multiple=&items_per_page=10</a>.
—————————————————————————
In the end, however, USCIS cannot predict with certainty how LIFO
and other administrative measures, as well as external factors such as
immigration court backlogs and changes in country conditions, will
ultimately affect total application volumes and the attendant resource
burdens on USCIS. In addition, in light of the need to accommodate
existing vetting requirements and to maintain flexibility should trends
change, USCIS believes that even if it could reliably project a
reduction in total application volume, such reduction would not, on its
own, serve as a sufficient basis to leave the 30-day adjudication
timeframe in place.
Finally, once an EAD is approved under the (c)(8) Pending Asylum
Applicant category, it is valid for two years and requires renewal to
extend an applicant’s employment authorization if the underlying asylum
application remains pending. Currently, DHS regulations at 8 CFR
208.7(d) require that USCIS must receive renewal applications at least
90 days prior to the employment authorization expiration. Removing
the 90-day requirement would bring 8 CFR 208.7(d) in line with 8 CFR
274a.13(d), as amended in 2017; such amendments automatically extend
renewal applications for up to 180 days. Additionally, under the 2017
AC21 Rule, applicants eligible for employment authorization can have
the validity of their EADs automatically extended for up to 180 days
from the document’s expiration date, if they (1) file before its
expiration date, (2) are requesting renewal based on the same
employment authorization category under which the expiring EAD was
granted, and (3) will continue to be authorized for employment based on
their status, even after the EAD expires and are applying for renewal
under a category that does not first require USCIS to adjudicate an
underlying application, petition, or request.
—————————————————————————
EADs issued prior to October 5, 2016 had a validity period
of one year. See USCIS Increases Validity of Work Permits to Two
Years for Asylum Applicants (Oct. 6, 2016), available at <a href=”https://www.uscis.gov/news/alerts/uscis-increases-validity-work-permits-two-years-asylum-applicants”>https://www.uscis.gov/news/alerts/uscis-increases-validity-work-permits-two-years-asylum-applicants</a>.
For renewal applications, a properly filed application for
pending asylum applicants is one that is complete, signed,
accompanied by all necessary documentation and the current filing
fee of $410.
—————————————————————————
3. Population
In FY 2017, USCIS received a total of 142,760 affirmative filings
of Form I-589 applications for asylum. The number of total receipts for
asylum applicants has risen sharply over the last five years,
increasing over 221 percent from FY 2013 to FY 2017 (Table 7). As the
number of asylum applicants increases, the backlog continues to
grow, resulting in a greater number of people who are eligible to
apply for EADs while they await adjudication of their asylum
application.
—————————————————————————
As of June 2018, the asylum backlog was still increasing,
but its growth rate has begun to stabilize.
Table 7–Total Annual Form I-589 Receipts Received From Affirmative
Asylum Applicants 38
————————————————————————
Fiscal year Total receipts
————————————————————————
2013……………………………………………. 44,453
2014……………………………………………. 56,912
2015……………………………………………. 84,236
2016……………………………………………. 115,888
2017……………………………………………. 142,760
————————————————————————
Source: All USCIS Application and Petition Form Types, All Form Types
Performance Data (Fiscal Year 2013-2017, 4th Qtr), <a href=”https://www.uscis.gov/tools/reports-studies/immigration-forms-data/data-set-all-uscis-application-and-petition-form-types”>https://www.uscis.gov/tools/reports-studies/immigration-forms-data/data-set-all-uscis-application-and-petition-form-types</a>.
—————————————————————————
These numbers only address the affirmative asylum
applications that fall under the jurisdiction of USCIS’ Asylum
Division. Defensive asylum applications, filed with the Department
of Justice’s Executive Office for Immigration Review (EOIR) are also
eligible for (c)(8) EADs. There is an ongoing backlog of pending
defensive asylum cases at EOIR, which has approximately 650,000
cases pending. See Memorandum from Jeff Sessions, Attorney General,
Renewing Our Commitment to the Timely and Efficient Adjudication of
Immigration Cases to Serve the National Interest (Dec. 5, 2017). The
defensive asylum backlog at EOIR also contributes to an increase in
both initial and renewal (c)(8) EAD applications.
—————————————————————————
This larger number of applications strains resources, which leads
to longer processing times for Form I-765 adjudication. Table 8 shows
the total, initial, and renewal applications received for Form I-765
for asylum applicants for FYs 2013 to 2017.
—————————————————————————
Since LIFO was reinstated at the end of January 2018, there
is not yet enough data currently available to determine the impact
on asylum applications or initial EAD applications. USCIS
anticipates updating its data in the analysis accompanying the final
rule. If this and other reforms are successful, such updated data
may reflect a relative reduction in application volumes.
Table 8–Total Annual Form I-765 Receipts Received From Pending Asylum Applicants
—————————————————————————————————————-
Total receipts Total initial Total renewal
Fiscal year * receipts receipts
—————————————————————————————————————-
2013…………………………………………………… 79,571 41,021 37,861
2014…………………………………………………… 110,210 62,169 47,103
2015…………………………………………………… 180,196 106,030 72,559
2016…………………………………………………… 300,855 169,970 128,610
2017…………………………………………………… 478,721 261,782 212,255
———————————————–
Average…………………………………………….. 229,911 128,194 99,678
—————————————————————————————————————-
Source: USCIS, Office of Performance and Quality.
* Total receipts do not include replacement receipts. Therefore, initial and renewal receipts will not equal to
total receipts.
Note: This data includes receipts received from both affirmative and defensive pending asylum applicants.
[[Page 47162]]
In FY 2017, USCIS received a total of 478,721 applications for Form
I-765 from pending asylum applicants, with more than half as initial
applications (261,782 or 54.7 percent). There were 212,255 renewal
applications (44.3 percent) in FY 2017. This trend is similar across
all five fiscal years. The five-year average of total applications
received was 229,911, with five-year averages of 128,194 initial
applications and 99,678 renewal applications.
For this analysis, USCIS does not use a trend line to forecast
future projected applications because various factors outside of this
rulemaking may result in either a decline or, conversely, a continued
rise of applications received. For example, while the number of initial
applicants and renewals has risen sharply over the last five years, DHS
assumes the increase in initial EAD applications has some correlation
with the increase in applications for asylum. As pending asylum
applications increase, the length of time it takes to adjudicate those
applications increases, and it is reasonable to assume that the number
of applicants who seek employment authorization on the basis of that
underlying asylum application would also rise. On the other hand,
initial EAD applications may decline. For instance, USCIS’ return to a
LIFO interview schedule to process affirmative asylum applications, may
help stem the growth of the agency’s asylum backlog, and may result in
fewer pending asylum applicants applying for an EAD. But USCIS cannot
predict such an outcome with certainty at this time. Therefore, since
DHS anticipates similar outcomes to those achieved in FY 2017, USCIS
anticipates receiving approximately 478,721 Form I-765 applications
annually from pending asylum applicants, with an estimated 261,782
initial applications and 212,255 renewal applications.
In order to analyze USCIS processing times for Form I-765, USCIS
obtained data on completed initial applications, which included the
length of time to complete adjudication and information on
investigative factors that may prolong the adjudication process. Table
9 differentiates between initial applications that USCIS adjudicated
within the 30-day timeframe in FY 2017 and those that it did not. The
table also includes the initial applications that were adjudicated
within a 60-day timeframe in FY 2017, along with the corresponding
initial applications that required additional vetting. This additional
vetting includes the issuance of RFEs and referrals for identity
verification by the BCU and the CFDO, which can cause delays in
processing. DHS notes that the 30-day timeframe pauses for RFEs but
does not pause for BCU or CFDO checks. Delays could also be caused by
rescheduled fingerprinting.
Table 9–Percentage of Completions for Initial Form I-765 for Pending Asylum Applicants in FY 2017
—————————————————————————————————————-
No additional vetting required Additional vetting required
(percent) (percent)
Number of days the initial —————————————————————- Total
application was pending Approved Denied Approved Denied (percent)
initial initial initial initial
applications applications applications applications
—————————————————————————————————————-
0-30………………………. 42 2 3 0 47
31-60……………………… 22 2 6 1 31
Over 60……………………. 12 2 6 2 22
——————————————————————————-
Total (percent)…………. 76 5 16 3 100
—————————————————————————————————————-
Source: USCIS, Office of Performance and Quality.
Note: Additional vetting includes the applications issued an RFE, referred to BCU/CFDO and both.
In FY 2017, USCIS adjudicated within the 30-day timeframe just
under half (47 percent) of all initial Form I-765 applications
received. USCIS approved within 30 days 45 percent of the initial
applications received and denied 2 percent that did not require any
additional vetting. Among the approved applications, only 3 percent of
the total required additional vetting, while 42 percent did not. USCIS’
completion rate within a 60-day timeframe increased to 78 percent
overall, with 73 percent of applications approved and 5 percent
denied. Only 10 percent of applications adjudicated within 60
days required additional vetting, while the majority of approved
applications did not (68 percent of the total).
—————————————————————————
Calculation of 30-day Approved: 42 (No Additional Vetting
Percent Approved 0-30 days) + 3 (Additional Vetting Percent Approved
0-30 days) = 45 percent.
Calculation of 60-day Approved: 42 (No Additional Vetting
Percent Approved 0-30 days) + 22 (No Additional Vetting Percent
Approved 31-60 days) + 3 (Additional Vetting Percent Approved 0-30
days) + 6 (Additional Vetting Percent Approved 31-60 days) = 73
percent.
Calculation of 60-day Denied: 2 (No Additional Vetting
Percent Denied 0-30 days) + 2 (No Additional Vetting Percent Denied
31-60 days) + 1 (Additional Vetting Percent Denied 31-60 days) = 5
percent.
Calculation of 60-day Additional Vetting: 3 (Additional
Vetting Percent Approved 0-30 days) + 6 (Additional Vetting Percent
Approved 31-60 days) + 1 (Additional Vetting Percent Denied 31-60
days) = 10 percent.
Calculation of 60-day No Additional Vetting: 42 (No
Additional Vetting Percent Approved 0-30 days) + 22 (No Additional
Vetting Percent Approved 31-60 days) + 2 (No Additional Vetting
Percent Denied 0-30 days) + 2 (No Additional Vetting Percent Denied
31-60 days) = 68 percent.
—————————————————————————
In FY 2017, prior to the Rosario v. USCIS court order, the majority
of applications (53 percent) did not meet the required 30-day
adjudication timeframe. In fact, it took up to 60 days for USCIS to
adjudicate the majority of applications. For applications that require
additional vetting, most applications took more than 30 days to
adjudicate as well. “Additional vetting” cases include those where an
RFE is issued, which pauses the regulatory processing time. The
findings in Table 9 underscore that, while additional vetting and other
delays may contribute to increased processing times, it may not be the
only reason processing times have increased. It is likely that the
increasing number of initial EAD applications is due to increasing
asylum receipts, the asylum interview backlogs, and updated operations
as outlined in the background of this proposed rule.
With the removal of the 30-day adjudication timeframe, DHS
anticipates similar outcomes to those achieved in FY 2017. DHS’s
primary goal is to adequately vet applicants and adjudicate cases as
quickly and efficiently as possible. DHS welcomes public comment on the
above analysis, including the methodology used for the population
estimates of this proposed rule and the analysis of processing times.
4. Transfers, Costs and Benefits of This Proposed Rule
(1) Transfers and Costs
The proposed rule would remove the 30-day adjudication timeframe in
order to better align with DHS processing times achieved in FY 2017.
USCIS recognizes that removing the 30-day regulatory timeframe could
potentially result in longer processing times for some applicants and
in such situations, this could lead to potential delays in employment
authorization for some initial EAD applicants. As described above,
these delays would have both distributional effects (which are
transfers) and costs. Any delay beyond the regulatory 30-day timeframe
would prevent an EAD applicant, if his or her application were
approved, from earning wages and other benefits until authorization is
obtained. A portion of this lost compensation would be a distributional
impact and considered a transfer from asylum applicants to others that
are currently in the U.S. labor force, possibly in the form of
additional work hours or overtime pay. In cases where companies that
would have hired asylum applicants had they been in the labor market
earlier are not able to find available workers, the lost compensation
to asylum workers would be considered a proxy for the cost of lost
productivity to those companies. However, USCIS does not know the
portion of the overall impacts of this rule that are transfers or
costs. One reason USCIS is unable to apportion these impacts is because
the industries in which asylum applicants will work with their
employment authorization is unknown; companies’ responses to such a
situation will vary depending on the industry and location of the
company (e.g., truck drivers are limited to the number of overtime
hours they can work). Additional uncertainty in how companies will
respond exists because while the official unemployment rate is low,
there is still evidence of some labor market slack. While USCIS is
unable to apportion these impacts between transfers and costs, USCIS
does use the lost compensation to asylum applicants, as described
below, as a measure of these total impacts.
—————————————————————————
See Bureau of Labor Statistics, Employment Situation News
Release, Nov. 2, 2018, <a href=”https://www.bls.gov/news.release/archives/empsit_11022018.pdf”>https://www.bls.gov/news.release/archives/empsit_11022018.pdf</a>.
It reports that “the number of persons employed part time for
economic reasons (sometimes referred to as involuntary part-time
workers) was essentially unchanged at 4.6 million in October. These
individuals, who would have preferred full-time employment, were
working part time because their hours had been reduced, or they were
unable to find full-time jobs.” It reports also that “In October,
1.5 million persons were marginally attached to the labor force . .
. These individuals were not in the labor force, wanted and were
available for work, and had looked for a job sometime in the prior
12 months.”
—————————————————————————
In FY 2017, the processing times for initial Form I-765 under the
Pending Asylum Applicant category exceeded the regulatory set timeframe
of 30 days more than half the time. However, USCIS adjudicated
approximately 78 percent of applications within 60 days. To estimate
lost wages and other benefits, USCIS used FY 2017 daily processing
data. In FY 2017, USCIS adjudicated 119,088 approved applications
past the regulatory set timeframe. USCIS recognizes that pending asylum
EAD applicants do not currently participate in the U.S. labor market,
and, as a result, are not represented in national average wage
calculations. Further, USCIS recognizes that pending asylum applicants
who obtain an EAD are not limited to certain types of employment or
occupations nor does USCIS track the type of employment applicants
obtain. Because the Form I-765(c8) does not include or legally require,
at the initial or renewal stage, any data on employment, and, since it
does not involve an associated labor condition application (LCA), DHS
has no information on wages, occupations, industries, or businesses
that may involve such workers. In some DHS rulemakings, the estimates
of distributional impacts and time-related opportunity costs are linked
to the federal minimum wage for new entrants to the labor force. This
reliance is grounded in the notion that most of the relevant EAD
holders would not have been in the labor force long, and would thus not
be expected to earn relatively high wages. In this proposed rulemaking,
we rely on a slightly more robust “prevailing” minimum wage of $8.25.
As is reported by the Economic Policy Institute (EPI, 2016), many
states have their own minimum wage, and, even within states, there are
multiple tiers. Although the minimum wage could be considered a
lower-end bound on true earnings, the prevailing minimum wage is fully
loaded, at $12.05, which 13.8 percent higher than the federal minimum
wage. DHS does not rule out the possibility that some portion of
the population might earn wages at the average level for all
occupations, but without solid a priori information we believe that
providing a range with the lower bound relying on the prevailing
minimum wage is justifiable. Therefore, for the purpose of this
analysis, USCIS uses both the prevailing minimum hourly wage rate of
$8.25 to estimate a lower bound and a national average wage rate of
$24.98 to take into consideration the variance in average wages
across states as an upper bound.
—————————————————————————
In FY 2017, USCIS adjudicated 15,860 denied (c)(8) EAD
applications past the regulatory set timeframe. Since denied
applicants would not obtain work authorization and would not lose
working days, this population is not be impacted by this proposed
rule and are therefore not included in the analysis for lost
compensation.
See When it comes to the minimum wage, we cannot just
`leave it to the states’ (November 10, 2016) available at: <a href=”https://www.epi.org/publication/when-it-comes-to-the-minimum-wage-we-cannot-just-leave-it-to-the-states-effective-state-minimum-wages-today-and-projected-for-2020//”>https://www.epi.org/publication/when-it-comes-to-the-minimum-wage-we-cannot-just-leave-it-to-the-states-effective-state-minimum-wages-today-and-projected-for-2020//</a>. There are multiple tiers of minimum wages
across many states that apply to size of business (revenue and
employment), occupations, working hours, and other criteria. Some of
these variations per state are described at: <a href=”https://www.minimum-wage.org”>https://www.minimum-wage.org</a>.
Calculations (1) for prevailing minimum wage: $8.25 Hourly
wage x benefits burden of 1.46 = $12.05; for federal minimum wage:
$7.25 hourly wage x benefits burden of 1.46 = $10.59. See Minimum
Wage, U.S. Department of Labor available at <a href=”https://www.dol.gov/general/topic/wages/minimumwage”>https://www.dol.gov/general/topic/wages/minimumwage</a>; (2) (($12.05 wage-$10.59 wage)/
$10.59)) wage = .1378, which rounded and multiplied by 100 = 13.8
percent.
The wage update in April 2018 reflects the 2017 average for
all occupations nationally. The data are found at the BLS
Occupational Employment and Wage Estimates, United States, found at:
<a href=”https://www.bls.gov/oes/2018/may/oes_nat.htm#00-0000″>https://www.bls.gov/oes/2018/may/oes_nat.htm#00-0000</a>.
—————————————————————————
In order to estimate the fully loaded wage rates, to include
benefits such as paid leave, insurance, and retirement using the most
recent Bureau of Labor Statistics (BLS) data, USCIS calculated a
benefits-to-wage multiplier of 1.46 and multiplied it by the
prevailing minimum hourly wage rate. The fully loaded per hour wage
rate for someone earning the prevailing minimum wage rate is $12.05
and $36.47 for someone earning the average wage rate.
Multiplying these fully loaded hourly wage rates by 8 to reflect an
assumed 8-hour workday produces daily wage rates of $96.36 and
$291.77, respectively. USCIS also assumes that EAD holders would
work 5 out of every 7 days, or an average of 21 days per month.
—————————————————————————
The benefits-to-wage multiplier is calculated by the Bureau
of Labor Statistics (BLS) as follows: ($36.32 Total Employee
Compensation per hour)/($24.91 Wages and Salaries per hour) = 1.458
(1.46 rounded). See U.S. Department of Labor, Bureau of Labor
Statistics, Economic News Release, Table 1. Employer costs per hour
worked for employee compensation and costs as a percent of total
compensation: Civilian workers, by major occupational and industry
group (April 2019), available at <a href=”https://www.bls.gov/news.release/archives/ecec_03192019.pdf”>https://www.bls.gov/news.release/archives/ecec_03192019.pdf</a>.
Calculation: $8.25 x 1.46 = $12.05 per hour.
Calculation: $24.98 x 1.46 = $36.47 per hour.
Calculations: $12.05 per hour x 8 hours = $96.36 per day;
$36.47 per hour x 8 hours = $291.77 per day.
—————————————————————————
Using FY 2017 data, USCIS estimates that the 119,088 approved EAD
applicants experienced an estimated
total 2,655,429 lost working days, and lost compensation could range
from $255.88 million to $774.76 million. USCIS understands that not
all EAD recipients would work in minimum or average wage occupations,
but provides these estimates as possible lower and upper bounds for
approved applicants who would engage in full-time employment. Table 10
shows the number of applicants completed in a period longer than the
30-day regulatory timeframe in FY 2017, the associated number of lost
working days, and an estimate of the resulting lost compensation. The
two categories over 120 days show the declining number of applications
that remain pending after 200 days and the maximum number of days it
took to adjudicate an initial EAD completed in FY 2017, which was 810
calendar days.
—————————————————————————
Calculations: 2,655,429 lost working days * ($96.36 per
day) = $255.88 million; 2,655,429 lost working days * ($291.77 per
day) = $774.76 million.
Table 10–Summary of Calculations for Initial Form I-765 for Pending Asylum Applicants in FY 2017
——————————————————————————————————————————————————–
31-60 Days 61-90 Days 91-120 Days 121-200 Days 201-810 Days Total
——————————————————————————————————————————————————–
FY 2017 Completions………………………………. 71,556 31,356 11,734 4,048 394 119,088
Lost Calendar Days……………………………….. 899,402 1,377,308 817,073 466,524 91,019 3,651,326
Lost Working Days………………………………… 691,314 992,880 581,237 330,038 59,960 2,655,429
Lost Compensation (lower bound)……………………. $66,615,017 $95,673,917 $56,007,997 $31,802,462 $5,777,746 $255,877,138
Lost Compensation (upper bound)……………………. $201,702,197 $289,689,023 $169,585,427 $96,293,999 $17,494,313 $774,764,960
——————————————————————————————————————————————————–
Source: USCIS analysis.
Note: To calculate lost compensation USCIS uses the fully-loaded wages based on the prevailing minimum wage to calculate the lower bound and a national
average wage to calculate the upper bound.
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 reasonable substitutes for the labor
the asylum applicants would have provided, this rule would primarily be
a cost to these companies through lost productivity. USCIS requests
comments on how it can apportion these impacts between transfers and
costs.
USCIS also recognizes that companies would incur additional costs
not captured in the estimates of lost compensation above. In cases
where companies cannot find reasonable substitutes for the labor the
asylum applicants would have provided, affected companies would also
lose profits from the lost productivity. In all cases, companies would
incur opportunity costs by having to choose the next best alternative
to immediately filling the job the pending asylum applicant would have
filled.
USCIS continues to resource the adjudication of pending asylum EAD
applications. In response to the Rosario v. USCIS litigation and to
comply with the court order, USCIS has dedicated as many resources as
practicable to these adjudications but continues to face an increasing
asylum application backlog, which in turn increases the numbers of
applicants eligible for pending asylum EADs. However, this reallocation
of resources is not a long-term sustainable solution because USCIS has
many competing priorities and many time-sensitive adjudication
timeframes. Reallocating resources in the long-term is not sustainable
due to work priorities in other product lines. USCIS could hire more
officers, but that would not immediately and in all cases shorten
adjudication timeframes because (1) additional time would be required
to onboard and train new employees and (2) for certain applications,
additional time is needed to fully vet an applicant, regardless of
staffing levels. In addition, there is currently no fee for asylum
applications or the corresponding initial EAD applications, and the
cost of adjudication is covered by fees paid by other benefit
requesters. USCIS is uncertain of the actual cost impacts of hiring
additional adjudicators to process these EAD applications at this time.
If the backlog dissipates in the future, USCIS may seek to redistribute
adjudication resources. USCIS may also redistribute adjudication
resources for other operational needs.
This proposed rule may result in a delay for some applicants to
earn compensation if EAD processing is delayed beyond the 30-day
regulatory timeframe. The lost compensation to asylum applicants could
range from $255.88 million to $774.76 million annually, depending on
the wages the asylum applicant would have earned. The ten-year total
discounted costs at 3 percent could range from $2,182.68 million to
$6,608.90 million and at 7 percent could range from $1,797.17 million
to $5,441.62 million (years 2019-2028). USCIS recognizes that the
impacts of this proposed rule could be overstated if the provisions in
the broader asylum EAD NPRM are finalized as proposed.
In instances where a company cannot hire replacement labor for the
position the asylum applicant would have filled, USCIS acknowledges
that delays may result in tax revenue losses to the government. It is
difficult to quantify income tax losses because individual tax
situations vary widely but USCIS estimates the potential loss to
other employment tax programs, namely Medicare and social security
which have a combined tax rate of 7.65 percent (6.2 percent and 1.45
percent respectively). With both the employee and employer not
paying their respective portion of Medicare and social security taxes,
the total estimated tax loss for Medicare and social security is 15.3
percent. Lost wages ranging from $255.88 million to $774.76 million
would result in employment tax losses to the government ranging from
$39.15 million to $118.54 million. Again,
depending on the circumstances of the employee, there could be
additional federal income tax losses not estimated here. There may also
be state and local income tax losses that would vary according to the
jurisdiction.
—————————————————————————
See More than 44 percent of Americans pay no federal income
tax (September 16, 2018) available at <a href=”https://www.marketwatch.com/story/81-million-americans-wont-pay-any-federal-income-taxes-this-year-heres-why-2018-04-16″>https://www.marketwatch.com/story/81-million-americans-wont-pay-any-federal-income-taxes-this-year-heres-why-2018-04-16</a>.
The various employment taxes are discussed in more detail
at <a href=”https://www.irs.gov/businesses/small-businesses-self-employed/understanding-employment-taxes”>https://www.irs.gov/businesses/small-businesses-self-employed/understanding-employment-taxes</a>. See IRS Publication 15, Circular E,
Employer’s Tax Guide for specific information on employment tax
rates. <a href=”https://www.irs.gov/pub/irs-pdf/p15_18.pdf”>https://www.irs.gov/pub/irs-pdf/p15_18.pdf</a>.
Calculation: (6.2 Percent social security + 1.45 percent
Medicare) x 2 employee and employer losses = 15.3 percent total
estimated tax loss to government.
Calculations: Lower bound lost wages $255.88 million x 15.3
percent employee tax rate = $39.15 million.
Upper bound lost wages $774.76 million x 15.3 percent employee
tax rate = $118.54 million.
—————————————————————————
In addition to taxes, USCIS also considered the effects of this
rule on USCIS resources. In response to the Rosario v. USCIS litigation
and to comply with the court order, USCIS has dedicated as many
resources as practicable to adjudications of initial EAD applications
for pending asylum applicants, but continues to face a historic asylum
application backlog, which in turn increases the numbers of applicants
eligible for pending asylum EADs. However, this reallocation of
resources is not a long-term, sustainable solution because USCIS has
many competing priorities and many time-sensitive adjudication
timeframes. Reallocating resources in the long-term is not sustainable
due to work priorities in other product lines. Hiring more officers
could bring improvements but that would not immediately shorten
adjudication timeframes because additional time would be required to
onboard new employees, and train them. In addition, there is currently
no fee for asylum applications or the corresponding initial EAD
applications, and the cost of adjudication is covered by fees paid by
other benefit requesters. USCIS is uncertain of the actual cost impacts
of hiring additional adjudicators to process these EAD applications at
this time. Finally, USCIS has found that certain applications
inherently cannot be processed in a specific number of days due to
vetting procedures and background checks that simply require additional
time (see Table 10 where processing days in FY 2017 reached a maximum
810 days). Therefore, meeting the 30-day timeframe does not solely
depend on hiring more adjudication officers because for certain
applications additional time is needed for processing. Thus, USCIS is
proposing to remove the 30-day requirement rather than increasing the
number of adjudication officers in the long-term.
This proposed rule would result in reduced opportunity costs to the
Federal Government. Since Rosario compelled USCIS to comply with the
30-day provision in FY 2018, USCIS has redistributed its adjudication
resources to work up to full compliance. If the 30-day timeframe is
removed, these redistributed resources could be reallocated,
potentially reducing delays in processing of other applications and
avoiding costs associated with hiring additional employees. USCIS has
not estimated these avoided costs.
DHS also acknowledges the distributional impacts associated with an
applicant waiting for an EAD onto the applicant’s support network. DHS
assumes the longer an asylum applicant’s EAD is delayed, the longer the
applicant’s support network is providing assistance to the applicant.
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 welcomes
any comments from the public on costs to applicants from removing the
30-day adjudication timeframe.
USCIS does not anticipate that removing the separate 90-day EAD
filing requirement would result in any costs to applicants or the
Federal Government, as it makes a procedural change that benefits the
applicant. DHS also welcomes public comments on any costs resulting
from the removal of the 90-day renewal requirement.
(2) Benefits
By eliminating the 30-day provision, DHS would be able to operate
under long-term sustainable case processing times for initial EAD
applications for pending asylum applicants, to allow sufficient time to
address national security and fraud concerns, and to maintain
technological advances in document production and identity verification
that USCIS must fulfill as a part of its core mission within DHS.
Applicants would rely on up-to-date processing times, which provide
realistic expectations of adjudication times.
This rule would end future litigation over the 30-day adjudication
timeframe, such as the litigation referenced above. Even applications
that are not subject to a set timeframe, however, could in some cases
be the subject of litigation on “unreasonable delay” theories. And
more important, as indicated above, as a primary goal, USCIS seeks to
adequately vet applicants and adjudicate applications as quickly and
efficiently as possible. DHS welcomes any public comments on the
benefits described for the removal of the 30-day adjudication
timeframe.
USCIS would benefit from the removal of the 90-day renewal
requirement, because regulations would be updated to match that of
other EAD categories and it would ensure that the regulatory text
reflects current DHS policy and regulations under DHS’s 2017 AC21 Rule.
USCIS welcomes any public comment on the benefits of the removal of the
90-day renewal requirement.
(3) Labor Market Overview
As discussed in the population section of this analysis, USCIS
anticipates receiving approximately 478,721 Form I-765 applications
annually from pending asylum applicants with an estimated 261,782
initial applications and 212,255 renewal applications. Since this
proposed rule would only affect initial applicants who experience
potential delays in processing, USCIS estimates the affected population
to be approximately 119,088 applications. The U.S. labor force
consists of a total of 162,981,000 workers, according to the recent
data (June 2019). Therefore, the population affected by this
proposed rule represents 0.07 percent of the U.S. labor force,
suggesting that the number of potential workers no longer expecting a
30-day processing timeframe make up a very small percentage of the U.S.
labor market. USCIS recognizes that unemployment rates have been
historically low recently and the number of unemployed persons was
5,975,000 in June 2019, and so providing EADs to pending asylum
applicants potentially fills an economic need as discussed
previously. However, USCIS must first be sufficiently assured of
applicant eligibility and ensure all background and security checks are
completed.
—————————————————————————
In FY 2017, USCIS adjudicated 119,088 approved applications
past the regulatory set timeframe.
The BLS labor force data are found in Table A-1. Employment
status of the civilian population by sex and age, seasonally
adjusted, from the Current Population Survey July 2019 News Release:
<a href=”https://www.bls.gov/news.release/archives/empsit_07052019.pdf”>https://www.bls.gov/news.release/archives/empsit_07052019.pdf</a>.
Calculation: (119,088 approximate initial applicants who
could experience processing delays per year/162,981,000 workers)
*100 = 0.07 percent.
The BLS labor force data are found in Table A-1. Employment
status of the civilian population by sex and age, seasonally
adjusted, from the Current Population Survey July 2019 News Release:
<a href=”https://www.bls.gov/news.release/archives/empsit_07052019.pdf”>https://www.bls.gov/news.release/archives/empsit_07052019.pdf</a>.
—————————————————————————
In any case, USCIS notes that this proposed rule does not introduce
any newly eligible workers into the labor force, or permanently prevent
any eligible workers from joining the labor force. This proposed rule
only amends the processing of initial and renewal employment
authorizations for pending asylum applicants. The ability of pending
asylum applicants to be eligible for requesting employment
authorization in certain circumstances is in existing regulations; this
proposed
rulemaking is not seeking to alter which pending asylum applicants are
eligible to apply for employment authorization. Therefore, this
proposed rule would not change the composition of the population of
229,911 estimated applicants who may apply for employment authorization
or the number of workers entering the labor force; rather, this rule
could delay 119,088 pending asylum applicants from entering the U.S.
labor market by an average of approximately 31 days each, for a total
of 3,651,326 days. DHS welcomes public comment on this assessment
of this proposed rule.
—————————————————————————
Calculation: 3,654,326 total days/119,088 applicants = 31
days (rounded).
—————————————————————————
(4) Alternatives
(1) Alternative: 90-Day Regulatory Timeframe
DHS considered an alternative to the proposed removal of the 30-day
regulatory timeframe, to instead extend the regulatory timeframe to 90
days. Currently, under the Rosario v. USCIS court order, USCIS must
comply with its existing regulation requiring a 30-day timeframe and
process all initial EAD applications for asylum applicants within 30
days. Under this alternative, USCIS would instead process all future
applications within 90 days. In FY 2017, prior to the Rosario v. USCIS
court order, USCIS was able to sustainably process approximately 47
percent of applications within 30 days. USCIS, therefore, assumes 47
percent of applicants would remain unaffected under this 90-day
alternative. USCIS assumes the remaining 53 percent of applicants would
have their processing time extended under this alternative. In FY 2017
there were a total of 119,088 approved applications for which
processing took more than 30 days. USCIS assumes approved applications
that were processed in 31-60 days, and 61-90 days in FY 2017 (71,556
and 31,356 applicants, respectively) would be processed in a similar
amount of time under this alternative. For the 16,176 approved
applications that took more than 90 days to process in FY 2017, USCIS
assumes the processing time under this alternative would be 90 days, as
this alternative would set the maximum processing time at 90 days.
USCIS notes that while processing for this group under the 90-day
alternative would be longer than the current 30-day processing time
under the Rosario v. USCIS court order, it would be shorter as compared
to the proposed rule, which proposes to remove any processing
timeframe.
—————————————————————————
In FY 2017, USCIS adjudicated 16,176 approved and 5,202
denied (c)(8) EAD applications in over 90 days.
—————————————————————————
Based on the analysis provided in the Transfers and Costs section,
USCIS used FY 2017 daily processing data to estimate lost wages, lost
taxes, and other benefits for this alternative proposal. In FY 2017,
USCIS adjudicated 102,912 approved applications between 31 and 90
days. USCIS estimates that under this alternative the 102,912 approved
EAD applicants would have experienced an estimated total 1,684,194 lost
working days, and lost compensation could have ranged from $158.82
million to $480.89 million annually depending on the wages the
asylum applicant would have earned. In FY 2017, USCIS adjudicated
16,176 approved applications in greater than 90 days. USCIS estimates
that under this alternative the 16,176 approved EAD applicants would
have experienced an estimated total 679,392 lost working days, and lost
compensation could have ranged from $65.47 million to $198.23 million
annually depending on the wages the asylum applicants would have
earned. Table 11 shows the number of approved applications completed in
more than 30 days in FY 2017, the associated number of lost working
days, and an estimate of the resulting lost compensation.
—————————————————————————
In FY 2017, USCIS adjudicated 10,658 denied (c)(8) EAD
applications between 31 and 90 days. Since denied applicants would
not obtain work authorization and would not lose working days, this
population is not be impacted by this proposed rule and are
therefore not included in the analysis for lost compensation.
Calculations: 1,648,194 lost working days * ($96.36 per
day) = $158.82 million; 1,648,194 lost working days * ($291.77 per
day) = $480.89 million.
Table 11–Summary of Calculations for Initial Form I-765 for Pending Asylum Applicants in FY 2017
—————————————————————————————————————-
Greater than
31-60 Days 61-90 Days 90 days Total
—————————————————————————————————————-
FY 2017 Completions……………………….. 71,556 31,356 16,176 119,088
Lost Calendar Days………………………… 899,402 1,377,308 970,560 3,247,270
Lost Working Days…………………………. 691,314 992,880 679,392 2,377,451
Lost Compensation (lower bound)…………….. $66,615,017 $95,673,917 $65,466,213 $227,755,147
Lost Compensation (upper bound)…………….. $201,702,197 $289,689,023 $198,223,758 $689,614,978
—————————————————————————————————————-
Source: USCIS analysis.
Note: The prevailing minimum wage is used to calculate the lower bound while a national average wage is used to
calculate the upper bound lost compensation.
In addition to the lost wages, USCIS acknowledges that such
processing delays may result in the loss in tax revenue to the
government. Similar to the analysis in the Transfers and Costs section,
USCIS estimates the potential loss to Medicare and social security.
Lost wages ranging $227.76 million to $689.61 million would result in
employment tax revenue losses to the government ranging from $34.85
million to $105.51 million annually. Again, depending on the
circumstances of the employee, there could be additional federal income
tax losses not estimated here. There may also be state and local income
tax losses that would vary according to the jurisdiction. The ten-year
total discounted lost compensation to asylum applicants at 3 percent
could range from $1,942.80 million to $5,882.56 million and at 7
percent could range from $1,599.66 million to $4,843.57 million (years
2019-2028). USCIS recognizes that the impacts of this alternative could
be overstated if the provisions in the broader asylum EAD NPRM are
finalized as proposed. Specifically, the broader asylum EAD NPRM would
limit or delay eligibility for employment authorization for certain
asylum applicants. Accordingly, if the population of aliens is less
than estimated as a result of the broader asylum EAD rule, the
estimated impacts of this alternative could be overstated because the
population affected may be lower than estimated in this rule.
—————————————————————————
Calculations: Lower bound lost wages $227.76 million x 15.3
percent employee tax rate = $34.85 million.
Upper bound lost wages $689.61 million x 15.3 percent employee
tax rate = $105.51 million.
—————————————————————————
[[Page 47167]] As previously discussed, USCIS does not know the portion of overall
impacts of this rule that are transfers or costs, but estimates that
the maximum monetized impact of this 90-day alternative from lost
compensation is $689.61 million annually. Accordingly, if companies are
unable to find reasonable labor substitutes for the position the asylum
applicant would have filled then $689.61 million is the estimated
maximum monetized cost of the rule and $0 is the estimated minimum in
monetized transfers. Additionally, under this scenario, there would be
a reduction of $105.51 million in employment tax transfers from
companies and employees to the Federal Government. Conversely, if all
companies are able to easily find reasonable labor substitutes, they
will bear little or no costs, so $689.61 million will be transferred
from asylum applicants to workers currently in the labor force or
induced back into the labor force (we assume no tax losses as a labor
substitute was found).
(2) Comparison of Alternatives
Currently, the Rosario v. USCIS court decision requires USCIS to
process asylum EAD applications in 30 days. This rule proposes to
remove any adjudication timeframe for processing future asylum EAD
applications. USCIS also considered an alternative under which USCIS
would process all future applications within 90 days. In the table
below, USCIS compares the lost working days and associated lost
compensation and taxes under the 90-day alternative with the proposed
rule. As previously discussed, if companies can find replacement labor
for the position the asylum applicant would have filled, the effects of
this rule would be primarily transfers from asylum applicants to others
already in the labor market (or induced to return). If companies cannot
find reasonable substitutes, the rule would primarily be a cost to
these companies through lost productivity and profits, and also result
in a decrease in employment tax transfers from employees to the
government. USCIS uses the lost compensation to asylum applicants as a
measure of the overall impact of the rule–either as distribution
impacts (transfers) or as a proxy for businesses’ cost for lost
productivity.
Table 12–Comparison of Alternatives, Using FY 2017 Annual Data
——————————————————————————————————————————————————–
Lost Lost
Number of employment employment
applicants Lost Lost taxes when taxes when
impacted by Lost working compensation compensation replacement replacement
change (FY days (lower bound) (upper bound) labor is not labor is not
2017) found (lower found (upper
bound) bound)
——————————————————————————————————————————————————–
Current 30-day Processing Timeframe (i.e., no action N/A N/A N/A N/A N/A N/A
baseline)……………………………………….
90-day Adjudication Timeframe Alternative…………… 119,088 2,377,451 $227,755,147 $689,614,978 $34,846,537 $105,511,092
No Adjudication Timeframe (i.e., Proposed Alternative).. 119,088 2,655,429 255,877,138 774,764,960 39,149,202 118,539,039
——————————————————————————————————————————————————–
Source: USCIS analysis.
The distribution of existing government resources would vary under
the baseline, the proposed rule, and the 90-day alternative. When
Rosario compelled USCIS to comply with the 30-day provision in FY 2018
(the baseline), USCIS redistributed its adjudication resources to work
up to full compliance. If the 30-day timeframe is removed (the proposed
rule), all of these redistributed resources could be reallocated back
to the way they were pre-Rosario (which USCIS assumes will look like FY
2017). Under the 90-day alternative, some of the resources could be
moved back, but not all of them because in FY 2017 USCIS was able to
adjudicate 92 percent of applicants in 90 days.
DHS decided not to propose the 90-day alternative because although
it would provide USCIS with more time to adjudicate initial EAD
applications from pending asylum applicants and applicants with a new
expected timeframe, it would not provide USCIS with the certainty and
flexibility it needs to fulfill its core mission. Further, under DHS’s
final 2017 AC21 Rule, USCIS removed the 90-day timeframe for all other
EAD categories. Maintaining any adjudication timeframe for this EAD
would unnecessarily constrict adjudication workflows. Ultimately, USCIS
is unable to plan its workload and staffing needs with the level of
certainty that a binding timeframe may require, and has no way of
predicting what national security and fraud concerns may be or what
procedures would be necessary in the future. DHS therefore declined to
adopt a 90-day regulatory timeframe, which would unnecessarily place
operational constraints on adjudicators.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121 (March 29, 1996), requires federal agencies to
consider the potential impact of regulations on small entities during
the development of their rules. The term “small entities” refers to
small businesses, not-for-profit organizations that are not dominant in
their fields, and governmental jurisdictions with populations of less
than 50,000.This proposed rule would continue to provide employment
authorization to asylum applicants who voluntarily apply for such
benefits. This proposed rule only removes the 30-day adjudication
timeframe and the corresponding 90-day renewal requirement. For the
purposes of the RFA, DHS estimates that approximately 119,088
individuals may be impacted by this proposed rule annually. Individuals
are not considered by the RFA to be a small entity. As previously
explained, this proposed rule may result in lost compensation for some
initial applicants whose EAD processing is delayed beyond the 30-day
regulatory timeframe. However, the proposed rule does not directly
regulate employers.
The RFA does not require agencies to examine the impact of indirect
costs to small entities. Regardless, DHS is unable to identify the next
best alternative to hiring a pending asylum applicant and is therefore
unable to reliably estimate the potential indirect costs to small
entities from this proposed rule.
DHS requests comments from the public that would assist in
understanding costs not described herein. An initial regulatory
flexibility analysis follows.
(1) A description of the reasons why the action by the agency is
being considered.
This proposed rule would remove the 30-day regulatory timeframe for
the adjudication of initial EAD applications by pending asylum
applicants because it is outdated, does not account for the recent
volume of applications and no longer reflects current operations. The
proposed rule would also make a technical change to remove the 90-day
filing requirement to reduce confusion regarding EAD renewal
requirements for pending asylum applicants and ensure the regulatory
text reflects current DHS policy and regulations under DHS’s final 2017
AC21 Rule.
(2) A succinct statement of the objectives of, and legal basis for,
the proposed rule.
The authority of the Secretary of Homeland Security (Secretary) for
these regulatory amendments is found in various sections of the
Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and the
Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat.
2135, 6 U.S.C. 101 et seq. General authority for issuing the proposed
rule is found in section 103(a) of the INA, 8 U.S.C. 1103(a), which
authorizes the Secretary to administer and enforce the immigration and
nationality laws and to establish such regulations as she deems
necessary for carrying out such authority. Further authority for the
regulatory amendment in the final rule is found in section 208(d)(2) of
the INA, 8 U.S.C. 1158(d)(2), which states an applicant for asylum is
not entitled to employment authorization, and may not be granted asylum
application-based employment authorization prior to 180 days after
filing of the application for asylum, but otherwise authorizes the
Secretary to prescribe by regulation the terms and conditions of
employment authorization for asylum applicants.
The proposed rule would remove the 30-day adjudication timeframe in
order to better align with DHS processing times achieved in FY 2017,
reduce confusion regarding EAD renewal requirements and ensure the
regulatory text reflects current DHS policy and regulations under DHS’s
final 2017 AC21 Rule.
(3) A description of and, where feasible, an estimate of the number
of small entities to which the proposed rule will apply.
This proposed rule would directly regulate pending asylum
applicants, or individuals, applying for work authorization. However,
DHS presents this IRFA as the proposed rule may indirectly impact small
entities who incur opportunity costs by having to choose the next best
alternative to immediately filling the job the asylum applicant would
have filled. DHS cannot reliably estimate how many small entities may
be indirectly impacted as a result of this proposed rule, but DHS
believes the number of small entities directly regulated by this rule
is zero.
(4) A description of the projected reporting, recordkeeping, and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities which will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record.
This rule would not directly impose any reporting, recordkeeping,
or other compliance requirements on small entities. Additionally, this
rule would not require any additional professional skills.
(5) Identification, to the extent practicable, of all relevant
federal rules that may duplicate, overlap or conflict with the proposed
rule.
DHS is unaware of any relevant federal rule that may duplicate,
overlap, or conflict with the proposed rule. Elsewhere in this
preamble, DHS notes that notwithstanding the language of the parallel
DOJ regulations in 8 CFR 1208.7, as of the effective date of a final
rule, the revised language of 8 CFR 208.7(a)(1) and removal of 8 CFR
208.7(d) would be binding on DHS and its adjudications. DHS would not
be bound by the 30-day provision of the DOJ regulations at 8 CFR
1208.7(a)(1). DOJ has no authority to adjudicate employment
authorization applications. DHS has been in consultation with DOJ on
this proposed rule, and DOJ may issue conforming changes at a later
date.
(6) Description of any significant alternatives to the proposed
rule which accomplish the stated objectives of applicable statutes and
which minimize any significant economic impact of the proposed rule on
small entities.
DHS is not aware of any alternatives to the proposed rule that
accomplish the stated objectives and that would minimize the economic
impact of the proposed rule on small entities as this rule imposes no
direct costs on small entities. DHS requests comments and seeks
alternatives from the public that will accomplish the same objectives.
C. Congressional Review Act
This proposed rule is a major rule, as defined by 5 U.S.C. 804.
Accordingly, absent exceptional circumstances, this rule, if enacted as
a final rule, would be effective at least 60 days after the date on
which Congress receives a report submitted by DHS under the
Congressional Review Act, or 60 days after the final rule’s
publication, whichever is later.
D. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA) requires each
federal agency to prepare a written statement assessing the effects of
any federal mandate in a proposed or final agency rule that may result
in a $100 million or more expenditure (adjusted annually for inflation)
in any one year by state, local, and tribal governments, in the
aggregate, or by the private sector. The value equivalent of $100
million in 1995, adjusted for inflation to 2018 levels by the Consumer
Price Index for All Urban Consumers (CPI-U), is $165 million.
Some private sector entities may incur a cost, as they could be
losing the productivity and potential profits the asylum applicant
could have provided had the asylum applicant been in the labor force
earlier. Entities may also incur opportunity costs by having to choose
the next best alternative to immediately filling the job the asylum
applicant would have filled. In such instances, USCIS does not know if
or to what extent this would impact the private sector, but assesses
that such impacts would result indirectly from delays in employment
authorization, and would not be a consequence of an enforceable duty.
As a result, such costs would not be attributable to a mandate under
UMRA. See 2 U.S.C. 658(6), (7) (defining a federal private sector
mandate as, inter alia, a regulation that imposes an enforceable duty
upon the private sector except for a duty arising from participation in
a voluntary Federal program); 2 U.S.C. 1502(1). Similarly, any costs or
transfer effects on state and local governments would not result from a
mandate under UMRA. See 2 U.S.C. 658 (5), (6) (defining a federal
intergovernmental mandate as, inter alia, a regulation that imposes an
enforceable duty upon State, local, or tribal governments, except for a
duty arising from participation in a voluntary Federal program); 2
U.S.C 1502(1). USCIS nonetheless welcomes public comment on potential
UMRA impacts.
E. Executive Order 13132 (Federalism)
This proposed rule would not have substantial direct effects on the
states, on the relationship between the Federal Government and the
states, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with section 6 of Executive Order 13132 (Federalism), it is
determined that this proposed rule does not have sufficient federalism
implications to warrant the preparation of a federalism summary impact
statement.
F. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988 (Civil Justice Reform).
G. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, all
agencies are required to submit to OMB, for review and approval, any
reporting requirements inherent in a rule. See Public Law 104-13, 109
Stat. 163 (May 22, 1995). This rule does not impose any reporting or
recordkeeping requirements under the Paperwork Reduction Act.
H. Family Assessment
DHS has assessed this action in accordance with section 654 of the
Treasury General Appropriations Act, 1999, Public Law 105-277, Div. A.
With respect to the criteria specified in section 654(c)(1), DHS has
determined that the proposed rule may delay the ability for some
initial applicants to work, which could decrease disposable income of
families, as the lost compensation to asylum applicants could range
from $255.88 million to $774.76 million annually depending on the wages
the asylum applicant would have earned. For the reasons stated
elsewhere in this preamble, however, DHS has determined that the
benefits of the action justify the potential financial impact on the
family. Further, the potential for lost compensation does not account
for the fact that compliance with the 30-day timeframe is not
sustainable in the long-term, as DHS has been unable to meet the 30-day
processing timeframe in certain cases even with additional adjudication
resources.
I. Executive Order 13175
This proposed rule does not have tribal implications under
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.
J. National Environmental Policy Act (NEPA)
DHS Directive (Dir) 023-01 Rev. 01 and Instruction (Inst) 023-01-
001 Rev. 1 establish the policies and procedures that DHS and its
components use to comply with NEPA and the Council on Environmental
Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500-
1508.
The CEQ regulations allow federal agencies to establish, with CEQ
review and concurrence, categories of actions (“categorical
exclusions”) which experience has shown do not individually or
cumulatively have a significant effect on the human environment and,
therefore, do not require an Environmental Assessment (EA) or
Environmental Impact Statement (EIS). 40 CFR 1507.3(b)(1)(iii), 1508.4.
Inst. 023-01-001 Rev. 01 establishes Categorical Exclusions that DHS
has found to have no such effect. Inst. 023-01-001 Rev. 01 Appendix A
Table 1. Inst. 023-01-001 Rev. 01 requires the action to satisfy each
of the following three conditions: (1) The entire action clearly fits
within one or more of the categorical exclusions; (2) the action is not
a piece of a larger action; and (3) no extraordinary circumstances
exist that create the potential for a significant environmental effect.
Dir. 023-01 Rev. 01 section V.B (1)-(3).
This proposed rule would remove the following purely administrative
provisions from an existing regulation: (1) The 30-day adjudication
provision for EAD applications filed by asylum applicants, and (2) the
provision requiring pending asylum applicants to submit Form I-765
renewal applications 90 days before their employment authorization
expires. 8 CFR 208.7(a)(1), (d).
Assuming that NEPA applies to this rule at all, this rule falls
within categorical exclusions number A3(a) in Inst. 023- 01-001 Rev.
01, Appendix A, Table 1: “Promulgation of rules . . . strictly of an
administrative or procedural nature” and A3(d) for rules that
interpret or amend an existing regulation without changing its
environmental effect. This rule is not part of a larger action and
presents no extraordinary circumstances creating the potential for
significant environmental effects. Therefore, this proposed rule is
also categorically excluded from further NEPA review.
—————————————————————————
DHS reserves its position that NEPA generally does not
apply to USCIS rules.
—————————————————————————
K. National Technology Transfer and Advancement Act
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through OMB, with an explanation of why using these standards would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., specifications of
materials, performance, design, or operation; test methods; sampling
procedures; and related management systems practices) that are
developed or adopted by voluntary consensus standard bodies. This
proposed rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
L. Executive Order 12630
This proposed rule would not cause the taking of private property
or otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
M. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 requires agencies to consider the impacts of
environmental health risk or safety risk that may disproportionately
affect children. DHS has reviewed this proposed rule and determined
that this rule is not a covered regulatory action under Executive Order
13045. Although the rule is economically significant, it would not
create an environmental risk to health or risk to safety that might
disproportionately affect children. Therefore, DHS has not prepared a
statement under this executive order.
N. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Executive Order 13211 requires agencies to consider the impact of
rules that significantly impact the supply, distribution, and use of
energy. DHS has reviewed this proposed rule and determined that this
proposed rule would not have a significant adverse effect on the
supply, distribution, or use of energy. Therefore, this proposed rule
does not require a Statement of Energy Effects under Executive Order
13211.
V. List of Subjects and Regulatory Amendments
List of Subjects in 8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
Accordingly, DHS proposes to amend part 208 of chapter I of title 8
of the Code of Federal Regulations as follows:
PART 208–PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
1. The authority citation for part 208 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Public Law 110-229; 8 CFR part 2.
Sec. 208.7 [Amended]
0
2. Amend section 208.7 by:
0
a. In paragraph (a)(1), removing the words “If the asylum application
is not so denied, the Service shall have 30 days from the date of
filing of the request employment authorization to grant or deny that
application, except that no” and adding, in their place, the word
“No”;
0
b. In paragraphs (a)(1) and (c)(3), emoving the words “the Service”
and adding, in their place, the word “USCIS”; and
0
c. Removing paragraph (d).
Kevin K. McAleenan,
Acting Secretary of Homeland Security.
[FR Doc. 2019-19125 Filed 9-6-19; 8:45 am]
BILLING CODE 9111-97-P
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